NOTHING BUT THE TRUTH: WHAT TO EXPECT WHEN CALLED TO TESTIFY AT A HEARING OR TRIAL

by Kristin W. Roscoe, JD
Staff Attorney
The Therapist
March/April 2022

Ma’am, you can’t bring a multi-tool in here.” As the sheriff ’s deputy said this, I racked my brain to figure out what he was referring to. I knew I had diligently emptied my purse the night before reporting for jury duty to make sure I was not bringing any prohibited items with me to the courthouse. The deputy waved me back through the metal detector I had just entered, now dangling my spouse’s car keys with a multi-tool attached. Aha! Foiled by a car swap that morning, I began repacking my purse of all electronics to start my walk of shame back to the car to drop off the offending “weapon.” (To be clear, it was a TSA-compliant multi-tool devoid of anything “stabby,” but I digress.)

Even as a former litigator, on this day, I too was foiled in the first hurdle a therapist will face when called to provide testimony at a hearing or trial – namely, entering the courthouse. This article aims to provide therapists with the tools to avoid easy mistakes and best serve their patients when called to provide courtroom testimony.

How Will You Be Notified?
This article assumes that you are not a party to the litigation. If you are a party to litigation, please consult with your legal counsel about what to expect.

As a non-party witness (i.e., someone who is thankfully neither the suing nor sued party), when you are called to testify in court you will be served with a subpoena. Some therapists may go their entire careers without receiving a subpoena to testify, while some may receive such a subpoena as a trainee. You may know when a subpoena is coming. Other times, the subpoena may arrive unannounced, like Cousin Eddie in Christmas Vacation. Just remember, until you have been formally served with a subpoena you are not obligated to provide testimony. Therapists should remember that being served with a subpoena to testify is not cause for alarm. Patients have a right to exercise their legal rights, and the testimony of their treating therapist may be relevant to the pending litigation.

Attorneys often hire vendors to serve subpoenas on their behalf. A subpoena to appear that has been issued by an attorney should be treated as a court order requiring the recipient to attend a hearing or trial at the time and place specified in the subpoena. A therapist who has been served with such a subpoena must attend the hearing or trial unless they are excused by that attorney in writing or receive a court order to quash (a legal term meaning to reject) the subpoena. Often, and particularly during the pandemic, the process server may reach out to a therapist to set up a time for in-person service of the subpoena. This outreach is a courtesy to avoid an unwanted knock on your door by a process server in the middle of a session.

It is important to remember that a therapist can have an administrative conversation with the vendor or process server about how, where, and when they would prefer to receive the subpoena without breaching their patient’s confidentiality. While many therapists are hesitant to return calls from process servers, doing so allows you to set up a time and place to accept service of a subpoena so you are not interrupted during session. Such a high-level administrative conversation would not get into confidential patient information. By simply accepting service of the subpoena issued in your name you are not confirming whether you have treated the person about whom your testimony is sought. Remember, the process server’s job is only to serve you with the subpoena. The process server is highly unlikely to inquire as to the nature of your relationship to the litigation. If such an inappropriate inquiry were made, an appropriate response could be: “Due to the nature of my work, I hope you appreciate that I cannot address something that might be confidential in nature.”

Why Are You Being Called to Testify?
Most often, if you have received a subpoena to testify in your professional capacity, you are the treating therapist for someone who is involved in the legal system. If this is a current patient, you may already know they have ongoing litigation. In general, if you receive a subpoena it is a safe assumption that the attorney who issued the subpoena is under the belief that your work with the patient is in some way relevant to the ongoing proceedings.

How Much Advanced Notice Will You Receive?
A subpoena for personal appearance requires only that “reasonable time” be provided for the recipient to comply.¹ It should come as no surprise that your idea of what may be “reasonable” could very well differ from that of the attorney who issued the subpoena. That being said, it is generally standard practice for a subpoena to be served approximately 10 to 15 days before a trial is set to begin. Often, due to the anticipated importance of a therapist’s testimony at trial, you may be contacted by the attorney issuing the subpoena that you should expect a subpoena. This serves not only to warn you to expect the service of a subpoena but also to make sure you are available on the date of the requested court appearance.

Unfortunately, trials may be delayed or a settlement reached before the trial even begins. It may be helpful, if you are contacted by the attorney issuing the subpoena (or their office), to inquire as to the likelihood of the trial proceeding. By getting a general sense of how likely it is that your testimony may be required you can better plan your schedule and inform any patients whose sessions may need to be rescheduled.

What Should You Look For in the Subpoena?
A good place to begin when analyzing a subpoena is, as Lewis Carroll admonishes readers of Alice in Wonderland, to “begin at the beginning.” On a subpoena, the beginning will be the top left of the subpoena itself. There, you will find information about the attorney (or unrepresented party) who issued the subpoena commanding you to do something. The attorney’s name, contact information, and the party they represent will all be listed in the top left. This information is important because if you can contact your patient, this will be some of the information you share with them as part of their deliberation into whether they would like you to freely testify or assert the psychotherapist-patient privilege.

The second most important piece of information to look for is just under the attorney’s information on the left side of the subpoena. There you will see the contact information for the Court in which the litigation is taking place. Most likely this will be from the State of California but might also be from a federal court or an out-of-state court. If, instead of the State of California, the court named is an out-of-state court such as Arizona this should be a red flag for the therapist. Just as your license only permits you to work with patients physically in the state of California, state courts are similarly limited in their subpoena power in that it ends at the state border. What this means is that while California state and federal courts have jurisdiction to command a California resident to do something via a subpoena, another state’s courts do not. A good practice pointer to remember is that just because an attorney in another state asks you to attend a hearing or trial in that other state you have no obligation to do so.

The third most important piece of information to look for likely begins with “THE PEOPLE OF THE STATE OF CALIFORNIA, TO.” Your eyes have not deceived you. The form screams this in bold and all caps so you cannot miss it. If your name follows this bold and capitalized text, then you know you have to pay attention to the subpoena. In a blocked-off box just below where you are likely to see your name, you’ll find the date, time, and place you are commanded to appear (remember, if the attorney has signed the subpoena and the court has jurisdiction over you it is treated as a court order).

SAMPLE SUBPOENA “Begin at the beginning.”

There are different subpoena forms for different types of legal action in different courts, so this is not an exhaustive list of important items to look out for. As with any subpoena you may receive, never hesitate to reach out to CAMFT’s legal department with questions.

Do You Need a Lawyer?
Whether you want to retain an attorney to represent you for purposes of the hearing or trial depends on your level of comfort. It is not required that you retain an attorney for these purposes. However, it never hurts to have someone in your corner to make sure you are putting your best foot forward not only for your professional benefit but also for your patient’s benefit. An attorney who represents you (this is not your patient’s attorney) can go over anticipated questions to help prepare you for providing testimony no different than if you were practicing for a play. The attorney will never tell you what to say in response to a question but can help you focus your responses so that you do not offer more information than asked. An attorney can also be helpful in that on the day of your testimony they will be present in court to lodge any appropriate objections, which can be helpful to ensure you do not inadvertently answer a question outside of your scope or otherwise legally inappropriate to respond to. Therapists should consider contacting their malpractice insurance carrier to see if an attorney can be assigned to prepare them for and/or represent them at the hearing or trial.

Do You Get Paid?
The short answer is yes. If you have been compelled to testify as the treating therapist for a patient in a civil case, you are entitled to witness fees based on your reasonable and customary hourly or daily fee.² What this means is that if you, for example, charge patients $150 per hour, then you may seek that same amount from the attorney who issued the subpoena if you anticipate you will be asked to provide either opinion or factual testimony regarding diagnosis or treatment decisions. You would not be entitled to your reasonable and customary hourly or daily fee if, for example, you were subpoenaed in your personal capacity as a witness to a car accident. You are also entitled to mileage fees (currently set at 20 cents per mile) for the roundtrip travel to and from the place where you have been called to testify.³

While there is travel time involved with any in-person appearance, apart from the mileage fee, you are only entitled to be compensated for “the actual time consumed in the examination [as a] witness by any party.” Therapists who are subpoenaed to testify in criminal cases should be aware that the allowable witness fees are significantly different for those cases. In criminal cases, a judge may grant fees of only $12 or $18 per day plus a reasonable fee for necessary expenses such as mileage.⁴

One question that CAMFT attorneys often receive is whether a clinician can charge either the patient or the party who issued the subpoena for an entire day’s worth of testimony. It is only on very rare occasions that you may be entitled to a daily fee. A daily fee is only permitted if the attorney requires you to be available for an entire day and as a result, you must forgo all business you otherwise would have conducted.⁵ Such an occurrence may involve being called as a witness at trial and the attorney is unsure when during the day they need you to testify and request your availability all day.

The only exceptions to these statutory fee limitations are when a therapist enters into an express contract with the party who is requiring them to testify or a therapist is hired by an attorney as an expert witness.⁶ For example, a therapist who works primarily with treatment units experiencing highconflict divorce (such as children or a parent) may want to consider addressing their testimonial fees in their informed consent. Therapists should remember that even if such an express fee agreement exists with their patient, the other party to litigation could be the one requiring their testimony and is not bound by that agreement.

When Should You Plan to Arrive?
If you are like me and on occasion forget that you are toting contraband, plan for the unexpected and arrive early. You should also expect a line to enter the courthouse that, depending on the time of day, may be excessively long. For example, if you are scheduled to provide testimony at 9:00 a.m., you may find yourself in line with a hundred jurors waiting to go through security. In some courthouses, there may be a separate line for jurors so it is a good idea to make sure you are in the right line. Courthouse staff are always happy to give you directions so use them as a resource if you are ever unsure of whether you are heading in the right direction.

Your subpoena may say you are scheduled to testify at 9:00 a.m., but this does not mean that you’ll be called then. For some judges, it may not be until 9:30 or later when you are called, while other judges will expect you to be ready to testify at 8:50 a.m. Because you will not know the judge’s penchant for punctuality it is best to arrive early for your testimony. If you are in contact with the attorney who issued the subpoena your arrival time is an administrative issue that you are free to discuss without getting into privileged topics.

The process to enter a courthouse is virtually identical to that of security checkpoints at an airport. You will be asked to place your belt, jacket, purse, keys, and electronics in bins to be x-rayed. Just as at an airport, you are not permitted to bring in any weapons or anything that can be construed as a weapon, so be sure to double-check your pockets and/ or purse before you leave home and/or your car (items I’ve been caught with over the years include nail clippers, a metal fork, and now a keychain multi-tool). If you arrive at the courthouse carrying contraband you must either dispose of it in a trash receptacle, stash it in a place outside the courthouse where it may get stolen (bushes are the best!), or return it to your vehicle. Once everything is on the conveyor belt to be x-rayed, you will have to walk through a metal detector before you are allowed to enter the courthouse.

How Do You Know Where to Go?
The first page of the subpoena includes the address of the courthouse or other location where you are commanded to appear (e.g., an arbitration often will not occur in a courthouse). The address will include information about which courtroom or “department” of the courthouse you will be testifying in. Each courthouse is different and you may want to familiarize yourself ahead of time with where you need to go.

For example, a subpoena may tell you that you are to appear at 9:00 a.m. in Department 68 at the Hall of Justice in San Diego. While you might think the Department number is correlated to the floor you can find the courtroom on, perhaps the 6th, you might be surprised to learn that Department 68 is on the 5th floor in San Diego. Most courthouses will have a website that lists specific information on where to locate each department so you can confidently stroll to the elevator on the day of your testimony and hit the button for “5.” Additionally, most courthouses have an information booth near the security entrance and courthouse staff are happy to direct you to the appropriate floor.

You Found the Courtroom, Now What?
If you arrive early and the doors to the courtroom are locked, you can wait on the benches outside until the clerk unlocks them. Before entering the courtroom, be sure to note the posted signs on the door with the rules regarding cell phones. Some judges want cell phones to be turned off entirely, and some permit them on silent. Some courthouses do not permit you to bring your phone inside at all (unless you also happen to be a licensed attorney) and there will be a locker at the security checkpoint for your phone. Whatever the rules, you do not want to be the person whose cell phone blasts out the latest Taylor Swift ringtone while court is in session.

When you enter the courtroom do not be surprised if it looks only vaguely like a courtroom from Law & Order. Unless you are providing testimony at a jury trial the jury box will be empty. The judge may or may not yet be present. There will typically be a courtroom deputy clerk who will call out matters to be heard and handles calendaring of future hearings for the judge. There will typically also be a bailiff (a judicial law enforcement officer) present. There are two tables in the “well” of the courtroom where the attorneys for the different parties will be seated. Dividing the “well” from the gallery is a wooden rail with a swinging door. You can sit anywhere in the gallery seating, though in some courtrooms the first row or two may be reserved for attorney seating only.

The check-in procedures vary between courthouses, so you may want to sit down for a moment at the back of the courtroom and wait to see what the attorneys do upon arrival. For example, in San Diego, the bailiff, who stands at a table located just inside the “well,” is the person to notify of your arrival. It is always a good idea to bring the subpoena with you to court, particularly to assist you in remembering the name of the case in which you have been called to testify (e.g., Batman v. Superman) so the bailiff can mark you as present for the correct case.

Even if you have arrived early the court’s docket (the list of cases being heard that day) may speed up if other cases move quickly so be sure to stay close so you do not miss being called. If you are testifying at a trial, you may be on call so you will want to be in close communication with the attorney (and/or their staff) who issued you the subpoena as to when they expect to call you as a witness so you can schedule your day(s) accordingly.

What Happens When They Call Your Name?
After waiting and watching the courtroom “drama” unfold, it is finally your turn. You will pass through the swinging door and make your way to the witness stand. Once there, you will be placed under oath. After the initial biographical questions that are not subject to the psychotherapist-patient privilege, what happens next largely depends on the direction you received from your patient(s). If you have been authorized by your patient(s) to testify, you can continue to answer questions. Be prepared for the attorney who is not asking you questions to object to certain questions, which may interrupt your train of thought. If after an objection you have forgotten the question, you may ask to have it repeated. Don’t forget, the attorney who represents the party who did not issue the subpoena will be permitted to ask you questions and it will be helpful to discuss with your patient the scope of what they are comfortable with you testifying to and what they may want you to assert the psychotherapist-patient privilege regarding.

How Does the Psychotherapist-Patient Privilege Come into Play?
Let’s pause for a minute to discuss the psychotherapist-patient privilege. This privilege prevents the disclosure of confidential communications that take place between a patient and their therapist for use in legal proceedings. Both California⁷ and federal law⁸ recognize the existence of the psychotherapist-patient privilege. What this privilege means in practical terms is that a patient is free to speak to their therapist without fear that their confidentiality will be breached and used against them in legal proceedings.

The privilege is broad in that it applies to communications not only with Licensed Marriage and Family Therapists but also with Associate Marriage and Family Therapists and Trainees.⁹ However, the privilege only attaches to “confidential communications between patient and psychotherapist.”¹⁰ For example, if a patient were to record a session (with or without their therapist’s knowledge) and share the recording with a third-party, the psychotherapist-patient privilege would no longer cover topics discussed during that particular session.

One common misunderstanding that can result in serious consequences revolves on what to do if your patient wants you to assert the psychotherapist-patient privilege or does not want you to testify at all. Unless you are excused in writing from appearing by the attorney who issued the subpoena or the subpoena has been quashed by a court order, you must attend the hearing or trial as noticed in the subpoena. If you fail to appear as specified in the subpoena, you risk monetary sanctions for misuse of the discovery process or a possible finding of contempt of court.¹¹ If you are unsure whether you should appear to provide testimony, it is advisable to seek the advice of your attorney or contact the CAMFT legal team to discuss options.

Will I Have to Answer Questions?
Whether you must answer questions will depend on what your patient has instructed you to do. If your patient has signed an authorization for you to testify, you are no longer able to decline to answer questions based on the psychotherapist-patient privilege.¹² If, however, you do not have signed authorization to testify, you must assert the psychotherapist-patient privilege when asked anything regarding your treatment of the patient. Your response to counsel will be along the lines of “I decline to answer on the basis of the psychotherapist-patient privilege.” This statement will trigger the attorneys to argue why your testimony should or should not be brought into evidence. Once the attorneys have made their arguments, the judge will issue a verbal order either directing you to answer the questions or determining that your objection was appropriate and you do not have to respond. If you are ever confused by the judge’s order, such as whether it pertained to this question or all future questions, it is appropriate to ask for clarification. You could say: “Your honor, I want to make sure I am clear regarding your order. Have you instructed me to answer all further questions regarding my patient?”

Once the first attorney has finished asking you questions, the attorney representing the other party will have an opportunity to ask you questions in a process called cross examination. The cross-examination questions will relate to the first attorney’s questions. Once the other attorney has concluded their line of questioning, you are not necessarily done. If the first attorney believes that further clarification is necessary based on your responses to opposing counsel, they may ask additional questions in a process called “redirect.” Once the attorneys have concluded their questioning the judge will let you know that you can leave.

Ethical Obligations to the Legal System
The CAMFT Code of Ethics provides therapists with a roadmap for how to approach the legal system ethically. As a therapist, you have unparalleled insight into the patient’s mental health struggles that may form the basis for their litigation. The Code of Ethics reminds therapists that while a patient may “equate their own best interests with prevailing in a legal dispute,” therapists must be mindful not to align with the patient’s legal position as it could have a negative clinical impact on the patient depending on the outcome.¹³ Most obviously, the Code of Ethics reminds therapists that when called to testify they are to provide truthful testimony and avoid making misleading statements.¹⁴ Therapists must remain impartial when called to testify and must not compromise their professional judgment or integrity even if asked to offer opinions or information beyond the limits of their knowledge base or the role for which they were retained.¹⁵

An example that often comes up is when a patient requests the therapist testify about their fitness as a parent as part of a contentious custody dispute. If the therapist is only treating the patient individually, they likely have not personally experienced the patient in a parental role apart from what the patient may have shared about their parenting style in session. While the therapist may have nonprofessional opinions about a patient’s fitness to parent, the therapist should limit their testimony to reflect the boundaries of the work they have done with their patient. Therapists who are not firm in setting this type of boundary may risk having a BBS or CAMFT ethics complaint filed against them by an aggrieved parent.

Practice Pointers
Once a therapist is served with a subpoena to testify, they should attempt to contact their patient to find out whether their patient wants them to testify or to assert the psychotherapist-patient privilege.

The patient should consult with their attorney about whether to permit the therapist to testify because whether the therapist’s testimony is in their best interest is a legal determination and not a clinical determination for the therapist to weigh in on. If the patient chooses to waive the psychotherapist-patient privilege, they should do so in writing by signing a release.

Conclusion
Receiving a subpoena to provide testimony is something every therapist may encounter at least once in their career. The most important thing (in addition to leaving contraband at home) for a therapist to remember is to consult with your patient, if possible, to find out whether they want to waive the psychotherapist-patient privilege or have you assert the privilege on their behalf. With your patient’s direction in hand, your ethical obligation is to then provide truthful and objective testimony to the court. Given the ethical and legal pitfalls when testifying, it may be beneficial to consult with CAMFT’s legal staff and/or your malpractice carrier when you receive a subpoena to testify.

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Kristin W. Roscoe, JD, is a staff attorney at CAMFT. Kristin is available to answer member calls regarding legal, ethical, and licensure issues.

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Endnotes 

¹ CCP § 2020.220(a).
² Government Code § 68092.5.
³ CCP § 1987(a) and Government Code § 68093.
⁴ Penal Code § 1329.
⁵ Government Code § 68092.5(a).
⁶ Government Code § 68092.5(e).
⁷ Evidence Code §§ 1010, et seq.
⁸ Federal Rule of Evidence 501 and Jaffee v. Redmond, 518 U.S. 1 (1996).
⁹ Evidence Code §
¹⁰10(e), (f), and (j). 10 Evidence Code § 1012.
¹¹ Code of Civil Procedure § 2023.010(d) and CCP § 2023.030.
¹² Evidence Code § 1014(c).
¹³ CAMFT Code of Ethics § 10.
¹⁴ CAMFT Code of Ethics § 10.1.
¹⁵ CAMFT Code of Ethics § 10.5. 

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in