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Have you ever been subpoenaed and had no idea what to do? How prepared are you in case a legal situation were to emerge? Do you have some processes in place – and if not – what can you do to get prepared?
In this podcast episode, Joe Sanok speaks about what subpoenas, expert witnesses, and fact witnesses are with Dr. Tracy Masiello.
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Meet Dr. Tracy Masiello
Dr. Tracy Masiello, PhD, LCMHCS, is a licensed mental health counselor supervisor, a certified mediator in Superior and District court cases, and a court-appointed parenting coordinator in District and Family court.
A recognized expert in areas where counseling intersects with law, Dr. Masiello shares her knowledge as a provider of continuing law education for attorneys and judges, and by training therapists on court processes as an NBCC-approved continuing education provider.
The owner of a private group practice, Reaching Resolution, and its training aspect, Resolution Academy, Dr. Masiello’s expertise is evident by her numerous testimonies in legal proceedings and her appointment as a qualified expert witness in court trials.
Visit Resolution Academy and connect on Facebook, Instagram, and TikTok.
FREEBIE: What do I do now? A Subpoena Checklist!
- Working terminology for these topics
- How to navigate clients that are under the legal age
- What to do if a subpoena hits your desk
- Dr. Masiello’s advice to private practitioners
Working terminology for these topics
1 – Subpoena: a subpoena is a legal request. It’s asking for permission for you to either provide a testimony, records, both or a legal proceeding.
The truth is, ignoring a valid subpoena, whether it’s a judge or an attorney signed, can lead to fines or even jail time. So even if it’s an attorney subpoena, therapists should not dismiss it. (Dr. Masiello)
Clients have more privileges than clinicians in these situations, so you cannot ignore a subpoena.
Therefore, Dr Masiello also recommends that you put your hourly or daily fees for answering a subpoena quite high, especially if you work with clients who are parents in custody battles.
I absolutely recommend that all therapists have these fees in their intake paperwork because that can help prevent clients from subpoenaing you and just thinking that you’re going to show up and testify. Instead, now they’re only probably going to do that if they really feel like what you have is valid and important. (Dr. Masiello)
2 – Expert witness: An expert witness talks about things based on their expertise about a matter where you can give your opinion.
3 – Fact witness: if you are testifying as a fact witness, then you are going to testify about things that you have directly heard or observed. In this role, you cannot give your opinion or make any statements drawn from your expertise. Only stick to what you’ve seen or heard.
An expert witness [can give an opinion or draw a conclusion], but you cannot do that as a fact witness, and that’s an important distinction because if you’re on the stand, it is often the case that the attorneys will try to pull you into that role of expert witness. They want you to give your opinion … [As a fact witness] you’re ethically required to object to such questions. (Dr. Masiello)
How to navigate clients that are under the legal age
Sometimes therapists will be seeing their client; a child or teenager who is underage and coming from divorced or divorcing parents, where one parent wants the child in court while the other one doesn’t.
In this nuanced situation where one parent objects, even if one parent permitted you, you would have to object to the subpoena. You would object because you don’t have both parent’s consent, especially if your client is not able to legally consent themselves.
In this case, it would be up to the judge whether or not they want to tell you to testify or not.
If the judge compels you, it’s a court order, and now you have to do it and you don’t need to have the parent’s consent, and it’s on the record. (Dr. Masiello)
What to do if a subpoena hits your desk As soon as a subpoena arrives on your desk, there are some things that Dr. Masiello recommends you to do:
- Make sure that it is a valid subpoena. For example, it has to be signed by a court judge or attorney.
- Make sure that it was properly served to you because the subpoena cannot be given by a party to the case.
- Contact your liability insurance carrier who will assign an attorney to you. Make sure to ask for an attorney who’s within and from your state, and knows mental health law.
If you want to be proactive and get informed, download Dr. Masiello’s freebie about what you can do to feel and be prepared.
Dr. Masiello’s advice to private practitioners
Be proactive about this.
With subpoenas, it’s more a matter of ‘when’ than ‘if’, so be intentional about having the right processes ready and knowing that the steps are to take so that you can stay on the right side of the law to protect yourself and your practice.
Sponsors Mentioned in this episode:
- Trust me, don’t waste any more of your time, and try TherapyNotes.
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Useful links mentioned in this episode:
- Visit Resolution Academy and connect on Facebook, Instagram, and TikTok.
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Email Joe at [email protected] to suggest guests for the show
Check out these additional resources:
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Meet Joe Sanok
Joe Sanok helps counselors to create thriving practices that are the envy of other counselors. He has helped counselors to grow their businesses by 50-500% and is proud of all the private practice owners who are growing their income, influence, and impact on the world. Click here to explore consulting with Joe.
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