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"Writing in an informal, accessible style, the authors facilitate understanding of complex and confusing matters of law. Barsky and Gould's purpose is not to provide absolute answers to legal questions—as few exist—but to prepare the reader for the complicated role of being a witness in legal proceedings. To this end, they are marvelously successful. But the book does much more as well, providing meaningful insights into the mysteries and madness of the legal system. This book has become required reading for my graduate level course on social work and the law, and I believe no clinician should step up to the witness stand without having read it."—Kevin J. Corcoran, JD, PhD, Portland State University
"This is a unique and creative guide for the clinician entering the unfamiliar world of the courtroom. Rather than addressing a preconceived series of topics that are deemed relevant to practice, as many texts do, the authors are highly sensitive to the real questions clinicians have when called on to participate in legal proceedings, and organize their chapters accordingly. The book is very user-friendly, clearly written, and broad in scope. It will be useful to readers at many levels, from graduate students to seasoned clinicians."—David L. Shapiro, PhD, Center for Psychological Studies, Nova Southeastern University
"This easy-to-read text offers the non-lawyer a useful guide to preparing for the difficult task of testifying in court. Using readily understandable language and examples, it is a 'must read' for potential witnesses who want to avoid embarrassment or legal problems. The authors have combined their many years of experience to produce a practical resource that will help practitioners present their opinions in a manner that will facilitate the fact-finding process."—Debra H. Lehrmann, Presiding Judge, 360th Judicial District of Texas, Tarrant County, Texas
If you are thinking, "Halfway through the book and you're just getting to the hearing?" you should consider how long it takes in real life to get this far. If you have just started reading the book here because you will be in court tomorrow, you may have missed some important information and should probably go back to Chapter 1. It could be a late night.... Irrespective of how you arrived here, the purposes of this chapter are to familiarize you with what to expect at a hearing and to provide guidance for testifying. We begin by describing the examination-in-chief, more commonly called the direct examination. We then present our "Top 10 Hard-and-Fast Rules for Witnesses." As will become readily apparent as you read on, even hard-and-fast rules can be soft and slow. We will then take you through the process of cross-examination and provide suggestions for how to deal with difficult situations.
This chapter provides a repertoire of strategies from which you can draw. Rather than follow them by rote, consider the underlying reasons for each suggestion and whether these reasons apply in your situation.This process is similar to the use of microskills, intentional interviewing, or ethnosensitive practice (Ivey & Ivey, 1999). Each tribunal has a unique culture. When a reflective clinician enters work with people from another culture, she takes responsibility for adjusting her use of self in order to present in a culturally appropriate manner through control of her verbal and body language. As you decide how to present yourself at a hearing, consider your role and the purpose of the hearing. To simplify the discussion, we will focus on a clinician who is called to testify about her observations while working with a client, leaving the discussion of opinion evidence and expert testimony to Chapter 7. The clinician's primary role is to present her evidence in a factually accurate and credible manner. You may have additional intentions and will adjust your presentation accordingly.
To appear credible, you need to decide upon the best way to demonstrate candor, impartiality, trustworthiness, respectfulness, expert knowledge, and confidence. For example, honesty may be demonstrated by steady speech, consistent messages, and poised body language. Fidgeting, shifting your eyes, contradicting yourself, and perspiring may be perceived as signs of dishonesty. However, in different arenas or with different decision makers, you may need to adjust your manner of presentation. Direct eye contact in some cultures is a sign of attentiveness; in other cultures, it is a sign of disrespect. Just as different ethnic groups operate with different cultural norms, so do different legal systems or different courtrooms within the same jurisdiction.
Think about your audience and, in particular, the decision maker(s) at the hearing. What type of information will be most persuasive to this audience-scientific facts, emotional appeals, anecdotal information, moral arguments, or information that has the support of a larger group (e.g., a petition or endorsement from a professional group)? How can you present yourself in a manner that is most effective? Effectiveness as a witness depends on total presentation of the person including preparation, knowledge of relevant material, dress, appearance, speech, style, and confidence. Some decision makers will be impressed by one style, whereas other decision makers will be impressed by another.
As we noted in Chapter 1, the direct examination is conducted by the attorney who calls the witness to testify. In general, this attorney cannot suggest specific answers to his questions. The reason for this rule is to avoid allowing an attorney to put words in the witness's mouth. Further, this attorney cannot impugn his own witness.
These rules of direct examination have three primary exceptions. First, attorneys are given latitude to ask leading questions to guide a witness quickly through uncontroversial issues: "Your name is Michael Elliot?" "You are a mediator with Elliot and Associates?" "You were hired by the Carveys to mediate the terms of custody and access with their daughter?"
The second exception concerns "hostile witnesses." Attorneys usually call witnesses who are either neutral or sympathetic to their clients' interests. In some situations, an attorney will call a witness who is adverse in interest. If the tribunal deems the witness hostile, then the attorney conducting the direct examination will be permitted to ask questions as if it were a cross-examination (discussed below).
A third exception relevant to clinicians is that someone appointed by the court to provide an assessment may be cross-examined by both parties.
Since an attorney calling you as a witness should have discussed his questions and your testimony with you ahead of time, the direct examination should be relatively straightforward and free of surprises. Starting with a direct examination gives you time to feel comfortable on the stand. If your evidence were entered into the court record solely through documents, you would not have time to get acclimated to testifying before being subjected to difficult and hostile questions in cross-examination.
An examination usually begins with questions about who you are and how you came to have information relevant to the case. Following these introductions, the attorney leads you through your story, typically in chronological order. The friendly attorney will focus primarily on evidence in support of her case. However, the attorney may also ask questions that raise evidence contrary to her case, knowing that such evidence will likely come out in cross-examination anyway.
While some judges and tribunals are passive, others ask their own questions during either the direct examination or the cross-examination. Show them the same respect you do other questioners. You do not have to agree with the suggestions put forward in a judge's questions. However, such questions may be particularly important because they indicate the focus of the decision-makers' interest. Their questions also give you the opportunity to help them with the information they need to make a particular decision.
It is appropriate to provide information counter to a judge's belief. For example, a judge may ask a question that suggests a poor understanding of current research. Recently a judge asked about the potential harm to a 5-year-old in having overnight visitation with her father. The expert was able to point to three recent research articles that helped the judge to see how his ideas about overnight visitations as harmful were not supported by current research. Whether such testimony was able to affect the judge's personal bias about such decisions is another story and an important question to keep in mind. You might be able to teach the judge something new about current research or treatment techniques. However, that does not mean that the new knowledge will change the judge's strongly held personal beliefs.
TEN RULES OF TESTIFYING
The following 10 rules apply regardless of who is asking the questions.
Rule 1: Tell the Truth, the Whole Truth, and Nothing but the Truth
Honesty is the most basic rule of giving evidence as well as a legal commitment you make by giving an oath. Although telling the truth seems so basic that no explanation is needed, be aware of certain traps. In particular, when you are asked a question, you may feel obliged to answer in a way that will reflect well on yourself or your client. After all, if the attorney asks you a question, he must think that you have a good answer. However, honesty may require admitting that you do not have one. If you do not know the answer to a question, say so. If you do not remember the information requested, say so. It is better to appear ignorant or admit to having an imperfect memory than to be caught trying to cover up what you really do not know. On the other hand, do not say "I don't know" or "I don't remember" just to avoid a difficult or embarrassing question.
Be forthright about evidence that goes against your preferred case. Do not feel obliged to rationalize damaging facts or to show reluctance to concede a point in favor of opposing counsel. A short answer may be better than a long explanation because it will downplay the importance attributed to the answer. Sam might admit, "Yes, Philip has been cooperative with my investigation," even though this may argue against Sam's belief that Debra is in need of protective services.
Testify about what you observed even if it does not conform to other testimony that has been presented. Different people can have different observations, perceptions, and memories. It is up to the tribunal rather than the witness to reconcile these differences. The other person may be wrong. You may want to discuss discrepancies with your attorney outside of the hearing and after you have completed your testimony. Talking about your testimony during a break is inappropriate. Once you take the stand, you should not talk about your testimony except when being questioned.
A troubling situation may arise if your client or another witness testifies about something that you know to be untrue. During your testimony, focus on the facts and information you have, as well as the basis for these facts. Rather than testify that the other person is lying, establish the truth of your version.
Certainly there may be situations where a witness comes across as not completely honest. As a professional clinician, do not let unconscious biases creep into your testimony. If Freida feels sympathetic toward Paula, Freida may exaggerate evidence in Paula's favor or downplay evidence against her. Freida's testimony that "Paula provided all of Debra's parenting" could be an innocent embellishment that hurts Freida's credibility and sets her up for cross-examination. If Freida is asked if she is biased toward Paula, Freida may be tempted to say that she is objective and nonjudgmental. On the other hand, it may be more honest for Freida to admit that, yes, she does like Paula as a person and thinks she has demonstrated many positive parenting skills. By admitting her sympathies in a manner appropriate to her clinical role, Freida maintains her credibility more than if she denied that she possessed any prejudices.
There are times when you may be tempted to stray from the absolute truth. As the authors of this text, we cannot condone lying under oath. If you are tempted to stray from the truth, be sure to consider the potentially dire consequences of doing so-as well as alternative means of achieving the same objective. We firmly believe that, if people think through the consequences and alternatives carefully, they will be more likely to be honest.
Rule 2: Convey Professionalism
If you are called to testify in your professional capacity as a clinician, consider what type of presentation may be expected of you. Typically, professionalism implies formality, competence, and objectivity.
Although you should avoid overdramatizing, professionalism need not rule out your testifying in a warm and interesting manner. Use your public speaking skills to convey your information in an engaging manner, for example, by using inflections in your voice, vivid language, and personalized testimony. Your testimony will have little impact if the decision maker falls asleep during your delivery of it.
It is also appropriate to advocate for a position forcefully, provided that you have a solid research or clinical foundation for such advocacy. Such advocacy may also best be presented by offering alternative rival positions and then explaining how the current data are best interpreted through the position you advocate.
Rule 3: Respect the Formalities of the Tribunal
Legal processes tend to be staid and rational proceedings with comparatively few theatrics. Legal professionals and witnesses are inclined to dress conservatively as a sign of respect for the solemnity of the process and the serious issues at stake. Although tribunals vary greatly in their formality, all legal processes have rituals. Many court rituals revolve around how to show respect for the judge. While the designation of judges differs among courts, in general, judges in most courts are addressed as "Your Honor." If in doubt, "Judge" is generally acceptable. Respect for judges is demonstrated by standing when a judge addresses you, when she walks into the room, or when she gets up to leave. Decorum tends to be less formal when the hearing is not conducted by a public court judge. Mr. and Ms. are usually the favored forms of address for other people, such as the attorneys or parties to an action. Entering or leaving the hearing while it is in session may be prohibited. A final rule of respect is to avoid arguing or flagrantly disagreeing with the decision maker.
Many rules in hearings are the same as those learned in kindergarten (Fulghum, 1988): play fair, don't hit people, no speaking when it's not your turn; no gum or food; no joking around; ask for a brief recess if you have to go to the washroom; and take off your hat when you come inside. While the rules should be taken seriously, there are some exceptions that your kindergarten teacher might not have accepted: passing notes discreetly; drinking water during your testimony; using humor to make a point (occasionally and respectfully); and donning religious head wear, such as yarmulkes or turbans.
When you are asked to take the witness stand, sit properly. Do not swivel or rotate in the chair, nor rock back and forth. Try not to move about needlessly. Look at the attorney asking the questions and then provide your answers either to the judge, the jury, or the attorney. If the witness chair is bolted to the floor, you may need to lean forward to place your documents on a desk or platform.
Rule 4: Speak Slowly, Loudly, and without Hesitation
Ensure that your speech is given slowly enough for the tribunal recorder and others to record your testimony accurately and completely. Consider spelling unusual names and words to help those taking notes or recording your testimony. Your pacing may depend upon the conceptual difficulty of your information and the nature of your audience, but is generally slower than normal conversation. Pause briefly before answering a question to allow the other attorney time to register any objections and to give yourself a moment to think about how to articulate your answer. If you need time to think, take control by saying, "Let me consider my answer for a moment." Then take a moment to formulate your response. If you need more time, you could ask for a moment more to think. Taking the extra time demonstrates that you are taking the question seriously.
Excerpted from Clinicians in Court by Allan E. Barsky Jonathan W. Gould Copyright © 2004 by The Guilford Press. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Chapter 1 INTRODUCTION
Chapter 2 BEGINNING WITH YOURSELF
Chapter 3 FIRST CONTACT
Chapter 4 PREPARATION FOR LEGAL PROCEEDINGS
Chapter 5 ORAL TESTIMONY AT AN ADJUDICATION
Chapter 6 CLINICAL RECORDS
Chapter 7 EXPERT WITNESSES
Chapter 8 DOCUMENTARY EVIDENCE
Chapter 9 CLAIMS AGAINST CLINICIANS
Chapter 10 ALTERNATIVES TO ADJUDICATION
Chapter 11 CONCLUSION
A. Service Agreement for an Expert Witness for Review/Rebuttal Services
B. Fee Arrangement for an Expert Witness Who Is Called to Testify
C. Informed Consent to Participate in a Forensic Psychological Evaluation
D. Initial Letter to Attorneys after an Appointment Order
E. Sample Affidavit