Subpoena Received
Last month, I was hanging out on one of the online discussion lists that I participate in when Licensed Clinical Social Worker, Iain Halstead of Bogart, Georgia posted the following inquiry [shared here with Iain’s permission] . . . .
. . . I received a subpoena yesterday that requires me to attend a child custody hearing.
I will have to cancel a full day of clients and will lose that billing.
In the past when I have been asked by a client to attend court I have charged my daily rate.
This time however I have no choice over attending and it seems like I won’t receive anything other than a small amount to cover mileage.
Do others have experience of being subpoenaed? Is this just one of those things where we lose a day’s billing?”
A Court Order Is a Court Order
The discussion that ensued was lively and informative but it was Licensed Psychologist Andrew M. Gothard‘s reply below [reposted here with his permission] that I thought you would find most useful . . . .
. . . technically, you never have to be paid (although it is actually not that simple), since a subpoena to testify is a court order.
But the reality is that it is the generally accepted practice in nearly every court that professionals, who nearly always are qualified as experts once they take the stand, are entitled to just and reasonable compensation for their time that they need [in order] to cancel their schedules.”
A Template for Mental Health Professionals Responding to Court Orders
Andy offers the following as a template for a letter for you to amend and use as you see fit for responding to court orders.
I received your subpoena regarding Smith vs. Smith.
My assumption is that you would like to me to be present as an expert witness, as you will be requiring my expert opinions on one or more specific areas related to psychology as it pertains to this case.
Regardless of whether or not you intend to quality me as a fact witness or as an expert witness, I do require compensation for my time, as is usual and customary when professionals are requested to testify in court.
Thus, if I can clear my calendar on that date, I would be happy to provide this professional service by appearing and testifying.
However, as I would be required to cancel my clients for a substantial block of time, my policy is to receive payment for that time in advance, for all preparation time and all time required out of my office, including travel time, as I would not be available to see clients during those times.
I thank you in advance for understanding that I simply cannot afford to provide this professional service pro bono.
Should you and your client still desire my presence in court, my fee structure for court is as follows:
- All preparatory time (e.g., reviewing the file, court preparation with attorney, communications related to preparation) is charged at $____/ hour
- Court time, for all time required out of the office (i.e., including drive time) and/or scheduled out that I otherwise would not be able to see clients is charged at $____/ hour.
- If it is a morning set, I get a ____-hour retainer = $____
- If you do not require me to be present until after lunch break, I get a ____-hour retainer = $___
- I require retainers to be paid in advance.
- As a general policy, I cannot be available “on-call,” as being called to come to court at the last minute in that fashion is too disruptive to my practice, and not fair to my clients that otherwise would be scheduled that day, taking off time from work and/or taking their children out of school to come to my office.
- I have a 4-hour minimum for court time that will be billed against the retainer on the day of court. If I am not required to be out of the office for the entire ___-hour or ___-hours that are retained, some refund might be applicable, depending upon my ability to salvage the rest of the day (e.g., if I can call in clients to come for afternoon testing or therapy appointments if they are able).”
I thought this was the perfect opportunity to remind you to be proactive in considering what your own policy is regarding court orders and to put that policy in writing. [Thanks to Andy and Iain for allowing me to share this information here today.]
An important topic to discuss. Thanks for bringing this to our attention, Tamara and thanks to Andy and Ian for sharing their insights.
I’m currently reading the book, The Portable Lawyer for Mental Health Professionals, and they recommend a comprehensive fee policy be spelled out in an intake and consent form and agreed to by the client. Include asking for court fees in advance. The book also suggests including in the agreement what action, if any, will be take to collect unpaid court fees.
Hi, Pam! Thanks for dropping in this morning! You’re reading my favorite book on legal issues for therapists by my all-time favorite ethics trainer, Attorney and Social Worker Bart Bernstein! Now that you’re in Dallas – assuming he has not retired – keep an eye out for his ethics trainings. They are hands down the best I’ve ever attended with 30 years in the field. (He used to teach them a lot at Collin County Community College.) And, if you run across any of his trainings, let me know! I would fly to Texas just to attend one again!
Thank-you for sharing this important post.
What a great template! It’s professional and very straightforward. While I’m sure it could be denied, the way that it’s written probably makes denial unlikely. Excellent stuff!
Thank you for providing this guidance in such a straightforward manner!
I find that most therapists do NOT become therapists because they intend to go to court, but because they want to work directly with clients . As a result, most therapists spend the majority of their time and energy on developing their clinical and therapeutic skills, rather than their court preparation and presentation skills. I think this template and guidance will be useful for many therapists.
I wonder if it would be possible to provide further guidance for therapists that have not been required to attend court yet, such as the etiquette expected within the court room, the role of an expert and fact witness, how a therapist can prevent themselves from being a liability for their clients, record keeping and note taking, how to answer difficult questions, and what to expect when sitting on the witness stand, what to include on he consent form so clients are clear about what services are offered regarding court, etc.
I realise all this material could likely easily form a whole training or intensive workshop on court and legal issues. I’m thinking more about these ideas being presented in a short and straightforward manner as the above information was presented to help therapists move in the direction of being more prepared for the possibility of being subpoenaed.
Again, thank you for providing this template.
Respectfully,
Samantha
Great, useful information. I have something for people involved in court matters, thankfully. I was able to salvage an entire day of billing, and then some. Everyone needs to be aware of this.
Hi, Gretchen! Welcome and thanks for dropping in today! Are you saying that you have addressed this in your disclosure statement / contract? Or are you saying that you use some sort of letter like this one?
Such a timely topic, Tamara! Luckily I have court-related fees outlined in my Disclosure Statement that the client, of course, signs and agrees to. I had to put this clause to use recently as I was subpoenaed; I was very grateful that my client and I had talked about this at the very beginning of the therapeutic relationship.
Regarding what Samantha said above about courtroom etiquette, I spoke to my attorney pretty much immediately after I was recently subpoenaed. During our talk I asked many questions and honestly showed my **extreme** novice side. This especially showed up when, at one point, my attorney said “… and when you address the court…” at which point I nervously asked: “Wait! Where or what is the court?!” to which my attorney replied (with either a sigh or a smile — I couldn’t tell which): “The court refers to the judge.” Oh my!
We are lucky that in the Denver area we have an attorney plus an LPC and another person who occasionally present a workshop about what to expect in the courtroom. I’m eagerly waiting for the next one as I missed the first one.
Great topic, Tamara! Thanks for beginning the discussion and giving us valuable information!
Hey, Barbara, here’s How a Tiny Little Picture of You Can Drive Traffic to Your Website – just in case you want one to show up with your comments:)