The Portable Guide to
Testifying in Court for
Mental Health Professionals
An A–Z Guide
to
Being an Effective Witness
Barton E. Bernstein, JD, LMSW
and
Thomas L. Hartsell, Jr., JD
J
OHN
W
ILEY
& S
ONS
, I
NC
.
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The Portable Guide to
Testifying in Court for
Mental Health Professionals
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Other Books by the Authors
The Portable Lawyer for Mental Health Professionals: An A–Z Guide to
Protecting Your Clients, Your Practice, and Yourself, second edition
(2004), John Wiley & Sons, Inc.
The Portable Ethicist for Mental Health Professionals: An A–Z Guide to
Responsible Practice (2000), John Wiley & Sons, Inc.
The Pocket Manual for Mental Health Professionals, a Compendium of

Published by John Wiley & Sons, Inc., Hoboken, New Jersey.
Published simultaneously in Canada.
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Library of Congress Cataloging-in-Publication Data:
Bernstein, Barton E.
The portable guide to testifying in court for mental health professionals : an A-Z guide to
being an effective witness / Barton E. Bernstein and Thomas L. Hartsell, Jr.
p. cm.
ISBN-13 978-0-471-46552-2 (pbk. : alk. paper)
ISBN-10 0-471-46552-6 (pbk. : alk. paper)
1. Evidence, Expert—United States. 2. Forensic psychology—United States. 3. Mental
health personnel—Legal status, laws, etc.—United States. I. Hartsell, Thomas L. (Thomas

it does. We want to help keep mental health professionals in business and providing the vital
and underappreciated services our society so badly needs. So to all of you, this book is for you.
Bless you.
To my mentor and friend, Bart Bernstein, who is 75 years young and still an inspiration.
This book has been Bart’s labor of love and a long time coming. Bart, I know I can never
thank you enough or repay you for all you have done for me and taught me but know that I
appreciate all of it and will be forever grateful. Signed, Your Greatest Admirer.
To my beautiful wife, Barbara, who knows only too well how much time and energy my
professional life demands of me and our relationship, but who supports and comforts me and
makes my life complete. Thank you, Darlin’, from the bottom of my heart, for putting up
with me and loving me.
To my parents, Tom and Julie Hartsell, I owe you everything. The best in me can be traced
directly to you. I love you guys. May your golden years be blessed and happy.
To Ryan and Jason, my fine young sons, and Glenn and Chandler, my fine young stepsons,
who have all become fine young men. The world is your oyster; relish it and revel in it.
To Bill and Paula Edwards, my wonderful inlaws, for their gift of Barbara, and all their
friendship and support. I love you both. May your golden years be blessed and happy as well.
Last but not least, I want to give a big shout out to my pal Dexter, my Jack Russell (excuse
me, Parson Russell) Terrier, who is asleep at my feet as I write this. Ol’ Dex warms my heart
with his every look and action. He puts meaning in the phrase “man’s best friend” for me. He
is my joy.
TLH
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0vii
Preface
When one of the authors, Bart Bernstein, began practicing law
in the 1960s, the courtroom witness was treated with respect and
kindness. After taking the witness stand and providing a brief intro-
duction concerning his or her experience, the mental health profes-

Describe the nature of the therapy offered to the Jones
family.
Dr. Smith, as a result of your visits with the Jones family
and considering your learning, training, education, and ex-
perience, have you an opinion concerning the best interest
of the children? Would you recommend to the court that
they reside primarily with Mr. Jones or Mrs. Jones?
The expert witness might reply:
“Yes, I do have an opinion. I would recommend that the
children reside with
as that would be in
their best interest.”
L
AWYER
:“And what is your rationale or reason for this
opinion?”
E
XPERT
W
ITNESS
:“Based on my many years’ experience
in the field, my numerous cases and clients, and my educa-
tion, research, and training, it is my professional opinion
that
would act in their best interest be-
cause
.”
L
AWYER
:“Thank you!”

ing that, while mental health professionals are adequately prepared
to be helping professionals, they are usually ill prepared to enter
the legal arena. There are few graduate school courses that give more
than a cursory look at what might happen in litigation, especially if
the clinician is called into court in connection with a client’s case.
Law schools have moot court, where law students are assigned cases
and clients to represent before lawyers and judges to obtain courtroom
practice and experience before they represent real clients. Mental
health professionals have little opportunity to obtain such practice.
Usually the first time they attend court is as a witness in a real case,
involving real people in a real controversy, where the outcome affects
individuals’ lives and families.
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xPreface
This book makes the assumption that if the mental health profes-
sional is involved in his or her own litigation such as a business conflict
or a malpractice case, the attorneys engaged will adequately prepare
the professional for trial. We have included a chapter, however, that
deals with a mental health professional as a party to a lawsuit.
This book can be most helpful when the litigation concerns clients
engaged in their own disputes and the clinician is summoned into
court either as an expert hired witness or when one of the disputants
feels the testimony of his or her therapist, who is currently providing
treatment or did so in the past, is vital to the case.
You can be called as a witness long after therapy has terminated.
Once you have treated a client, you are always subject to subpoena if
the client or the client’s lawyer feels you know something relevant to
the case and supportive of the client’s position.
Although a witness may have nothing to gain from the court or
deposition appearance, the client has a lot to lose if the witness is

als: An A–Z Guide to Responsible Practice alerts the reader to ethical
problems that can and will affect the therapist as the practice develops.
The Portable Lawyer for Mental Health Professionals: An A–Z Guide to
Protecting Your Clients, Your Practice, and Yourself, second edition,
alerts the reader to legal problems that can and will affect the therapist
as the practice develops and provides some of the forms that are essen-
tial to create a more risk-free practice. This book, The Portable Guide
to Testifying in Court for Mental Health Professionals: An A–Z Guide to
Being an Effective Witness, offers the practitioner a window into the
forensic or courtroom scene. A court appearance without preparation
is naïve and unfair to the client as well as to the service provider. This
book will alert the mental health witness to the problems that are tra-
ditionally faced in the litigation context from initial engagement to ul-
timate posttrial termination of services.
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Acknowledgments
In the process of writing this book, we had many friends, acquain-
tances, and colleagues who provided inspiration, nurturing, and men-
toring—all necessary for any work worthy of publication.
We want to thank John Wiley & Sons, Inc., for creating the idea and
Kelly A. Franklin, our original editor, for her initial enthusiasm for the
project. We also thank Tracey Belmont, senior editor, and Isabel Pratt,
assistant editor, who helped to reorganize the chapters and who were
able to digest legal concepts and help translate legalese into English as
well as inspire additional publications. Thanks also to Linda Indig, se-
nior production editor, and Pam Blackmon and the staff at Publications
Development Company of Texas, who reviewed, organized, edited, and
helped to make this book more useful.
Encouragement came from many special friends, some of whom we

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Contents
PA RT I
THE JUDICIAL SYSTEM
1 Our System of Justice 3
2 Involvement in the Judicial System 18
3 Lawyers: Their Functions 24
4 The Expert Witness 32
PA RT I I
TESTIMONY VERSUS THERAPY
5 Therapist: Two Different Roles 43
6 Ethics 49
7 Confidentiality 62
8 Resolving Conflicts before They Escalate 69
PA RT III
PREPARING FOR TESTIMONY
9 Subpoenas 79
10 Preparing for Discovery 90
11 Preparing “Ask Me” Questions for the Lawyer 97
12 Preparing for Deposition Testimony 105
13 Preparing for Courtroom Testimony 114
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xvi Contents
PA RT I V
IN THE COURTROOM
14 Testimony Tips 123
15 Lawyers’ Tricks 133
16 Challenges to the Expert Witness: The Daubert Case 140

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01
When warring parents head to court to fight over child custody in
New York, their lawyers often let them in on a little secret. The most
powerful person in the process is not the judge. It is not the other par-
ent, not the lawyers, not even the child.
No, the most important person in determining who gets custody,
and on what terms, is frequently a court appointed forensic evaluator.
Forensics, as they are often called, can be psychiatrists, psychologists
or social workers; they interview the families and usually make de-
tailed recommendations to judges, right down to who gets the children
on Wednesdays and alternate weekends.
And the judges usually go along. (Emphasis added.)
New York Times, Sunday, May 23, 2004, pp. 1, 25.
The preceding article emphasizes what lawyers have known all along
and what every lawyer underscores to potential witnesses: The testi-
mony of the forensic mental health professional is crucial, important,
worthy of extensive preparation, and can affect the lives of an
PART I
THE JUDICIAL SYSTEM
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2The Judicial System
entire family immediately following the trial and for countless years
into the future. Thus, it is imperative that the forensic witness be
schooled in all the techniques necessary to prepare for evaluation, as-
sessment, and court appearances.
The court appearance is the final report card. The grade is awarded
by the judge or jury.
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03

interaction with
the legal system.
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4The Judicial System
The number of civil lawsuits filed today is extraordinary. If you con-
sider just divorces and the fact that 50 percent of all first marriages
and a still greater percentage of second marriages end in divorce, you
can see how great the possibility is for a mental health professional to
be involved in a civil lawsuit.
The Process in Civil Litigation
Civil lawsuits seek recovery or redress for some wrong done to, or
harm suffered by, the person bringing the suit. The recovery of a mon-
etary award is most often the goal.
Step One: Filing a Petition
To initiate a civil lawsuit, a party must file a petition (or a complaint in
some jurisdictions) in the appropriate court, setting out the identity
of the parties, reason(s) that the court has jurisdiction over the par-
ties and the dispute, subject matter and appropriate facts of the dis-
pute, and relief or damages requested. Defective filings are subject to
attack and can be stricken, or the filing party can be ordered to file
an amended petition.
Step Two: Service of Process
After the suit has been filed, the opposing party, commonly referred
to as the respondent or defendant, must be given notice of the suit and
allowed to respond. A process server is sent to serve the opposing
party with a copy of the suit (in some jurisdictions, service can be ac-
complished by mail). Courts require proof of such notice before allow-
ing the suit to go forward. An opposing party can waive this right to
service and enter an appearance in the suit.
Step Three: Answer

taped. Depositions occur outside the courtroom and are usually
conducted in an attorney’s office. Both sides have the right to ask ques-
tions of the witness either directly or through their attorney.
Requests for records require production for inspection and copying
of records or documents in the possession of a person or subject to
Interrogatories are
written questions
that can be
propounded to a
party as well as to
third persons who
are not parties to
the suit.
Depositions are
usually conducted
in an attorney’s
office.
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