Vol. 5, No. 3
August 2000

Preparing for Your Day in Court

The day breaks bright and sunny, but you’re in a black mood. Why? You’re going to court and you’re left cold by the thought that every decision you’ve made regarding this family will be scrutinized. The thought of the parents’ stern attorney attempting to impeach your judgment and undermine your credibility makes you feel ill. And you are frightened by the prospect that you might be held personally liable if things go wrong.

Although appearing in court may never be the equivalent of a day off, understanding the court system and ways to protect yourself from liability suits can keep a court appearance from ruining your day.

The Adversarial System

The United States has decided that by presenting strongly opposing points of view in a courtroom setting, the truth is likely to emerge. This is the basis of the legal system.

Lawyers in this system are required by their own code of ethics to “zealously represent their client’s wishes and interests.” By this code, a lawyer cannot do what she believes to be best if that differs from what her client thinks is best.

This philosophical and ethical foundation puts the opposing counsel’s behavior in a different light. When a social worker asks, “How can this lawyer defend these parents when this family situation is so harmful to this child?” the answer is simple: it’s the lawyer’s job. If she did not question every decision the social worker made, every interviewing technique, and every personal bias, Johnny’s parents would be getting less than what every citizen of the United States is entitled to—a competent and zealous defense.

Enhancing Your Testimony

Of course, understanding this is small comfort when you’re on the stand. What you need to know then (actually long before then) is how to give convincing, credible testimony. To help you with this, Practice Notes consulted Ilene B. Nelson, head of North Carolina’s guardian ad litem program, and Wayne Hadler, a practicing attorney. Both Nelson and Hadler have MSW and JD degrees, as well as years of experience with court appearances. They had the following suggestions for improving your testimony.

Dress appropriately. It is essential you wear professional attire in the courtroom. Specifically, women should wear a dress or skirt and men should wear a suit and tie. A social worker of either gender would do well to remember that the courtroom is the “home of the judge.”

Make your testimony fact-based and nonconclusive. In other words, clearly state what you saw, heard, and smelled. Do not offer conclusions about what these facts mean. The facts should speak for themselves.

Base your testimony on solid written documentation. If you are testifying to things you remember that are not well-documented you will be more vulnerable during cross-examination. Your documentation should be specific and fact-based. For example, rather than describing an apartment as “filthy,” say “the house had trash covering the floor, beer cans on the counter, and smelled strongly of urine.” Using words like “filthy” and “dirty” gives an opposing attorney an opportunity to question your own standards of cleanliness. A more objective description allows others to make judgements based on their own values, rather than questioning yours. Understand that your written documentation will determine what you are asked about in court. Therefore it needs to be clear and specific. It should be clear what is fact and what is opinion, so that a reader can easily see the relationship between the facts portion, the opinion portion, and the treatment plan portion.

Consider becoming qualified as an expert witness. If you need to describe specific child behaviors and make inferences about what they mean, discuss becoming qualified as an expert witness with your DSS attorney. In the legal sense, an expert is someone who knows more than the average person about a given subject. They are, in fact, the only witnesses allowed to give opinions on what they have seen. Qualifying as an expert witness does not require multiple advanced degrees; years of experience and specialized training in a particular area may be enough. However, becoming qualified as an expert increases the likelihood that your testimony will be questioned by the opposing counsel.

Prepare to discuss thoroughly your qualifications, schooling, experience, and specialized training. Review your resume to remember what you learned through various positions. For instance, if you worked in substance abuse treatment, you might be much more aware of situations in which substance abuse is a problem than others encountering the same situations. Also, keep a record of all the conferences and training you attend so you can explain where you gained your skills and knowledge.

Know what to do when attorneys cite research studies. Whether or not you are qualified as an expert, attorneys for parents may attempt to use the professional literature to discredit you. Social workers are generally very busy and it is difficult to keep abreast of every study that comes out. When you are asked a question about a study that you are unfamiliar with, say so. If you are asked about Dr. Ph.D.’s study that shows why anatomical dolls are too suggestive, you should state, “I am not familiar with Dr. Ph.D.’s study. However, if you’ll show it to me I will read it and respond to your question.” It is possible that the statements cited are being taken out of context or that they do not apply to the situation at hand. Another response might be, “I am not familiar with Dr. Ph.D.’s study. However, I base my interviewing with anatomical dolls on the work of Drs. Boat and Everson, who are widely recognized in this field.”

All of this is to say that, while nobody has to be familiar with every piece of professional literature, practitioners should be able to discuss why they choose the interventions and techniques they use. Being able to name and discuss the work relevant to your techniques is important to being a credible witness and a competent social worker.

Be thoroughly prepared prior to court. Make sure you have the right child and family in mind. Review your notes and discuss the case with your supervisor and the agency attorney. You may want to consider taking to court only those documents you know you will need. Some believe that bringing an entire file to court increases the chances that the court may order you to turn over additional documentation to the parent’s attorney. In some ways, this is a moot point—if the court wants certain information revealed, the judge can order you to answer questions or to produce the file. When deciding what documentation to bring to court it is best to do what your agency attorney recommends.

Meet with your agency attorney well ahead of time. It is imperative that you collaborate with your attorney to ensure that the attorney’s questions are clear and that you can answer them clearly. Also, make sure you know how to respond to the attorney’s questions in such a way that only the necessary information is provided to the court. Never disclose more than what is relevant and essential to the case. Working well with the DSS lawyer can help you ensure you are serving as your client’s best possible advocate (Hadler, 2000).

Speak in a straightforward manner. Although your colleagues may know just what you mean by “RAD” or “flight of ideas,” a judge may not. Communicate your ideas without using jargon: “Mrs. Jones went quickly from one subject to another, even though the subjects did not seem to be logically related. I would bring up Sherry’s strange school behavior and she would respond by discussing her childhood in Georgia. This made the interview difficult.”

Liability

In addition to worrying about proper dress, conduct, and preparation of materials, you must consider the subject of liability. Unfortunately, the possibility of the average social worker coming under fire for a claim of malpractice is very real (Reamer, 1995). Although the assumption is that any social worker who goes to court to represent a client would do so with proper respect for social work values and standards of care, problems occur.

According to the National Association of Social Workers (NASW), 634 malpractice claims were filed against NASW members between 1969 and 1990, though not all were substantiated (Reamer, 1995). Malpractice claims generally fell into two broad categories:

1. Misfeasance or malfeasance claims asserted that the social worker carried out his or her duties improperly or in a fashion inconsistent with the profession’s standard of care (Reamer, 1995).

2. Nonfeasance claims asserted that social workers did not carry out the duties expected of them by professional standards (Reamer, 1995).

One way to distinguish between these two categories of malpractice is that misfeasance is getting in trouble for things you did, while nonfeasance is getting in trouble for what you didn’t do (e.g., visit a client at a prescribed time). Acts of misfeasance are the most common type of malpractice acts among NASW members (Reamer, 1995).

The liability situation for public child welfare workers in North Carolina is not quite so grim, however. Under the ruling reached in the N.C. Court of Appeals case Hobbs v. DHR (135 N.C. App. 412 [1999]), DSS social workers were found to be public officers. As such, they are not liable for mere negligence in the performance of their duties. Based on this ruling, to recover damages against a DSS worker, a plaintiff would need to demonstrate that the worker's actions or inactions were either corrupt, malicious, or somehow outside and beyond the scope of the worker's duties.

Confidentiality. Much of the concern about liability involves breaching the confidentiality that exists between clients and social workers, and this concern is justified when the court views client records. Although clients should have been made aware of the possibility that records can be subpoenaed as evidence in a court case, it is generally the social worker’s responsibility to try to keep records secret. When the court gives the social worker no choice but to allow records to be viewed by the court, the worker must explain this to the client. Sometimes clients voluntarily allow their records to become part of their court cases, which requires social workers to obtain signed statements of client release (Hadler, 2000).

Social workers’ concerns about liability can be allayed if they are vigilant about preventing the need for malpractice claims. They must make a concerted effort to increase their own awareness of liability laws, and they should understand the concepts of negligence and malpractice (Reamer, 1995). Because most social work programs do not formally address the issue of liability, social workers should seek out information about the risks they take in practice.

What agencies can do. It is important for agencies who employ social workers to provide them with necessary information to know how to prevent claims of malpractice (Reamer, 1995). This type of preventative measure will benefit individual social workers and strengthen the agency as a whole.

Conclusion

Despite the challenges involved, representing a client in the courtroom can prove to be a valuable and extremely rewarding experience. Court provides social workers an opportunity to give the judge the information he or she needs to reach a decision that represents the best interests of children and their families. This puts social work values into practice in a very powerful way.

If the social worker is aware of potential liability, properly prepared to answer questions, and able to substantiate testimony with pertinent examples from social work theory, he or she should succeed in the courtroom.

Significant portions of this article were adapted from Mimi Chapman’s “Navigating the adversarial system,” which appeared in CPS Practice Notes Newsletter, Vol. 2, No. 3 (1995).

References

Bernstein, B. F. (1977). The social worker as expert witness. Social Casework, 58, 412–417.

Chapman, M. (1995). Navigating the adversarial system. CPS Practice Notes Newsletter, 2(3), 1–6.

Hadler, W. R. (2000, March 1). Personal communication. Durham, NC.

Nelson, I. (1995, March). Personal communication. Raleigh, NC.

Reamer, F. G. (1995). Malpractice claims against social workers: First facts. Social Work, 40(5), 595–601.