by: Kristin W. Roscoe, J.D.
Staff Attorney
The Therapist
March/April 2020
Reviewed November 2022 by Alain Montgomery, JD (CAMFT Staff Attorney) 

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According to the ancient Chinese military strategist Sun Tzu, “The art of war teaches us to rely not on the likelihood of the enemy’s not coming, but on our own readiness to receive him.”¹  Whether you work with children in contentious custody battles and receive regular subpoenas or have yet to receive a subpoena in your 20 years of practice you should be ready to receive a subpoena to testify. 

In Part I of this article series, you will learn the tools necessary to best serve your clients when called to provide testimony at a deposition. These tools will help you to avoid living out Sun Tzu’s admonishment that “the worst policy of all is to besiege walled cities” by unnecessarily going to battle with the legal system.²

What is a Deposition? 
A deposition is a formal interview taken by an attorney of a witness who has been placed under oath.³  It is one of an attorney’s tools when conducting discovery in connection with a case. If you receive a deposition subpoena, be sure to review the subpoena in its entirety as you may also be commanded to bring documents with you to the deposition.

How You Will be Notified
Unless you are a party to litigation, formal notice of an attorney’s request for your appearance at a deposition will come in the form of a deposition subpoena for personal appearance. You may, additionally, receive advance informal notice of the attorney’s intention to command your appearance from your client. However, until you have been formally served with a subpoena you are not obligated to appear at the deposition.⁴

It is important to remember that if you receive a subpoena to testify at deposition you are not in trouble. Before you are served with a subpoena, you may receive a call from the process server to set up a time for in-person service of the subpoena. This inquiry is done as a courtesy so that you do not get interrupted by a process server while you are in the middle of session. It is common for attorneys to hire a vendor to serve a subpoena on their behalf and also to make copies of records if those are requested in addition to testimony. The vendor is just an extension of the attorney for purposes of addressing the validity of the subpoena and the use of such a vendor does not render the subpoena any less valid. 

A common misconception is that a subpoena issued by an attorney requires no action. Attorneys can and do issue valid subpoenas.⁵  A deposition subpoena for a legal matter in California issued by an attorney representing any party to the litigation that has been personally served on the intended witness is a valid subpoena.

Ethical Obligations to the Legal System
A marriage and family therapists who give testimony in legal proceedings testify truthfully and avoid making misleading statements. Marriage and family therapists inform the court of any conflicts between the expectations of the court and their ethical obligations or role limitations. Marriage and family therapists should anticipate that clients, attorneys, or the court, might ask them to offer opinions or information beyond the limits of their knowledge base or expert role. In such circumstances, marriage and family therapists safeguard their professional objectivity by clarifying these issues with the court and respectfully declining to offer such testimony.⁶

Marriage and family therapists, regardless of their role in a legal proceeding, remain impartial and do not compromise their professional judgment or integrity. Marriage and family therapists understand that their testimony and opinions are impactful on legal outcomes. Marriage and family therapists use particular caution when drawing conclusions or forming or expressing opinions from limited observations or sources of information.⁷ 

Do I Need A Lawyer?
Depending on your malpractice insurance company, your policy may include deposition coverage for an attorney to be assigned to represent you at the deposition. If you receive a deposition subpoena, call your malpractice insurance company to determine whether you have this coverage. Attorney representation at a deposition is beneficial as you may be asked questions that are outside the scope of your license or competency, or are otherwise inappropriate for you to answer. If this happens, an attorney can place appropriate objections on the record and may instruct you not to answer the question(s). Additionally, an attorney will be able to prepare you for the types of questions you may be asked and will give you helpful tips on the best ways to answer certain questions (e.g., answer only the question asked). Attorneys also can wield their professional leverage to move deposition dates or locations and may even be able to get the deposition taken “off calendar” in certain circumstances. CAMFT strongly recommends contacting your malpractice insurance company or separately engaging an attorney to represent you at a deposition. 

Why Are You Being Deposed?
If you have received a subpoena to testify in your professional capacity then you are likely the treating therapist for an individual who is involved in the legal system in some way. If this is a current client you may already know that they are in the midst of a contentious divorce or that they were involved in a car accident. Generally, unless you are a retained expert witness, a child custody evaluator, or a party to the litigation, it is a safe assumption that the mental health of your client is in some way relevant to the proceedings. For example, your client may have a diagnosis of posttraumatic stress disorder due to a complication from a medical procedure for which they have filed a malpractice suit against the treating surgeon. As a result of the diagnosis, the client seeks compensation for the psychotherapy services you have provided and opposing counsel is trying to determine whether your sessions are related to the traumatic event. 

Where Will a Deposition Take Place?
In California, the attorney who issues the deposition subpoena chooses where the deposition takes place. This choice is limited to certain geographic constraints. The deposition location must either be within 75 miles of the therapist’s residence or within the county where the action is pending and within 150 miles of the therapist’s residence.⁸ 

There may be unwritten exceptions to where the deposition takes place based on custom and practice within the local legal community. For example, it is the custom and practice in the San Diego legal community for the deposition of a healthcare provider to take place at the witness’s attorney’s office or the place most convenient for the witness (most often their office but it could be their home). If you are represented by counsel, they will know if such a local custom and practice exists in your area. If you are unrepresented by counsel, you can request the deposition take place at your preferred location though there is no requirement the deposing attorney acquiesce to your request. 

Do I Need to Appear for a Deposition?
Yes. Unless you are excused by the attorney who issued the subpoena from appearing at the deposition you must attend the deposition at the date and time noticed in the subpoena. If the date and/or time of the deposition does not work with your schedule (e.g., for a pre-planned vacation you already have tickets for), either you or your attorney can request the deposition be re-calendared or canceled. If an attorney re-calendars the deposition or cancels it entirely you want to make sure you have the confirmation from the attorney in writing for your files. A therapist who fails to comply with a deposition subpoena in any way may be held in contempt of court. 

Do You Need to Appear if My Client Instructs Me to Assert the Psychotherapist-Patient Privilege?
Yes. Upon receipt of a deposition subpoena, the appropriate first step to take is to contact your client to determine whether your client will waive the psychotherapist-patient privilege to permit you to answer questions.⁹  If your client elects to waive privilege you will want to get their written authorization to provide testimony at the deposition. If your client instructs you not to answer questions, then it is your ethical obligation to assert the psychotherapist-patient privilege on behalf of your client. Upon being asked anything about your treatment of the client the appropriate response would be, “I decline to answer on the basis of the psychotherapist-patient privilege.” 

Even if you have been instructed by your client to assert the psychotherapist-patient privilege you must appear if the deposition is still set to go forward. At the outset of every deposition, you will be asked general biographical questions such as your name, what your address is, your date of birth, and your occupation. You must provide truthful testimony regarding any general questions asked of you.¹⁰  Once the attorney begins to ask you questions regarding your client then you must assert the psychotherapist- patient privilege and decline to answer the question asked if you have not obtained prior authorization from your client to testify. 

If the attorney continues to ask you questions about your treatment of the client, you must continue to respond with this objection language. There may be a point where either the deposition is concluded (and possibly continued to finish on a later date) or the attorney may call the judge to argue for an order compelling your testimony. If the judge is called and finds that your testimony is relevant to the proceedings, the judge may issue a verbal order for you to answer any further questions. If you then refuse to answer questions you run the risk of being held in contempt of court for violating the judge’s order.¹¹  For this reason, it will be helpful if you advise your client ahead of time of this limit to confidentiality so they can speak with their own attorney. Alternatively, in advance of the deposition, you can seek a release to speak with the attorney who issued the subpoena to advise them of your intent to assert the psychotherapist-patient privilege at the time of deposition. In doing so, the attorney may decide it is not worth the hassle to obtain an order compelling your testimony and may determine your testimony is no longer needed. At this time, you would request the attorney provide you with written confirmation that the deposition has been canceled. 

Who is in the Room?
At a minimum, you can expect that addition to yourself and your attorney (if you are represented), there will be a court reporter and the attorney who issued the subpoena. A majority of the time there will also be an attorney present who represents the opposing party. The court reporter is an individual licensed by the state who will capture all spoken words throughout the deposition and transcribe them for use in the legal proceedings. If there are more than two parties or it is a high profile case, there may be additional attorneys so be prepared for a potentially crowded room. If an attorney exercises their right to video record the deposition, there will also be a videographer present. Parties to litigation also have a right to attend depositions so they may also be present.

Depending on the circumstances you may feel the need to bring a friend or loved one with you for moral support. However, if you bring someone with you who is not your attorney, they will not be permitted to accompany you into the room where the deposition takes place and will be asked to leave. Additionally, there are issues of client confidentiality if you were to discuss the matter with your friend without a release from your client(s) to do so. 

Do You Have to Wear a Suit?
No. However, keep in mind that a deposition is a formal legal proceeding and the attorneys will be dressed professionally. Additionally, attorneys have the option to video record your deposition and the image of you in your pajamas may not be the professional image you want to project. Regardless of what you choose to wear be sure to dress in layers. The attorneys’ primary concern is the comfort of the court reporter. If the court reporter wants the room at 60 degrees, the room will be 60 degrees. 

How Long Will You Be There?
 Except under limited circumstances a deposition will not exceed seven hours in length¹²  It will be rare for such a lengthy deposition of a healthcare provider to take place. Such a long deposition typically (though still rarely) might occur if your treatment is at issue, such as if you are a party to malpractice litigation. Otherwise, because most therapists will provide testimony based on their role of the treating therapist you can expect to have a shorter deposition. Typical depositions for treating providers do not go beyond two hours in length, though it varies depending on how long you treated a client and what the underlying litigation issues might be. Remember that from a practical standpoint there are only so many questions attorneys can ask you regarding a client you saw four times.

Do You Get Paid?
Yes. However, the amount you are entitled to will depend on the circumstances of your appearance—either as a percipient or expert witness. The starting assumption of many attorneys will be that you will be called as a percipient witness. Under those circumstances, any witness called to provide deposition testimony in a civil action is only entitled to receive $35.00 a day plus actual roundtrip mileage calculated at $0.20 per mile.¹³  For example, if you appear for a deposition ten miles from your home you would receive $39.00 for your appearance ($35.00 appearance + $4.00 roundtrip mileage). 

If you are called as the treating therapist, you should instead argue that you are entitled to expert witness fees. Any treating therapist who is asked to provide either opinion or factual testimony regarding diagnosis or reasons for a particular treatment decision made is entitled to be paid their reasonable and customary hourly or daily fee as an expert witness.¹⁴While this provision is laid out in statute you should be prepared for the attorney who issued the subpoena to pushback against this request. For this reason, it may be helpful to have an attorney who can make this argument on your behalf before the deposition. 

What Can You Expect?
Your deposition will be recorded stenographically by a court reporter.¹⁵  After the deposition, the court reporter will produce a document called a deposition transcript that looks like a movie script of your exchange with the attorney(s). You will have an opportunity to make any corrections you deem necessary before the transcript is considered to be “final.” One thing to keep in mind as you review the transcript is that if you change something in the transcript from a “no” to a “yes” for example, it may affect your credibility if the matter proceeds to trial or arbitration. Finally, the deposition may also be video recorded by a certified videographer. Given the expense of this service, this is usually limited to times in which the therapist is directly involved in the litigation.

The attorney who takes your deposition may or may not be the attorney who issued the subpoena. Another attorney from the law firm may show up in their stead. This means even if you have prepared to sit across from Attorney Mary Poppins for seven hours, her colleague Attorney Freddy Krueger may be the attorney to take your deposition. 

When everyone has settled into their places, the attorney who requested the deposition will instruct the court reporter to place you under oath. The oath is your formal attestation that the testimony you will provide is the truth. If you knowingly provide false testimony regarding a material fact, you risk prosecution for perjury.¹⁶

Once you have been sworn in, the attorney will begin by setting the ground rules for the deposition by addressing some of the following topics so everyone has a common understanding of what is about to occur: 

1. You are under oath. Even though you may be in the informal setting of your office, the testimony you provide has the same force and effect as if you were in a court of law. 
2. The court reporter is the most important person in the room. The court reporter can only record one person speaking at a time, so it is important to wait until a question is asked before responding. 
3. You must give audible responses. If your response to a question is “uh-huh” you will be prompted to provide an audible “yes” or “no” response. While at that moment it may be clear what you mean, on paper it may be less clear and the transcript is what matters. 
4. Do not answer a question before it is asked. Until a question is fully asked you do not know what is being asked of you. Besides putting yourself in a position where you may inadvertently volunteer information, it also helps keep a clean record so that you are not speaking over the attorney and making the court reporter’s job more difficult. 
5. Do not guess. This admonishment reminds you of your ethical duty to provide truthful testimony.17 You may, however, be asked to provide your best estimate. To distinguish between a guess and an estimate think about your wallet. You probably have gone into your wallet in the last day or so and have a general idea about how much cash you have and could provide an estimate of that amount. However, if you were asked how much cash I have in my wallet because you (presumably) have not opened my wallet it would require a guess on your part. 
6. If you do not understand a question, ask for it to be rephrased. Depositions can be long, and attorneys are human. An attorney may completely bungle a question’s syntax or ask you a question that makes absolutely no sense. Instead of answering the question you think they may have meant to ask, you should ask the attorney to re-phrase the question until you understand what is being asked of you. Alternatively, if the attorney realizes they are going off course with the question they intend to ask they may stop themselves, state “strike that,” and re-start the question on their own. In that case, only respond to the re-phrased question. 
7. You can ask to take a break. Depending on the circumstances under which you were called to provide testimony, you may have a brief deposition or you may be there for several hours. It is your right to ask for any breaks that you need. You will, however, be required to answer any question that has been asked of you before a break may be taken. 

Can the Other Attorneys Ask You Questions?
Absolutely. Even if you receive a subpoena from one attorney, the opposing counsel will have the opportunity to ask you questions. If your client authorized you to waive the psychotherapist-patient privilege for your initial testimony, it is appropriate to confirm that the client wants you to waive privilege for questions from opposing counsel. If your client requested you assert the psychotherapist-patient privilege in response to questions from opposing counsel, then you must do so. As previously discussed, counsel may call the judge in mid-deposition for a ruling compelling your testimony so be prepared to answer any questions.

Conclusion
Receiving a subpoena to provide deposition testimony is something every therapist may encounter at least once in their career. The most important thing to remember is to consult with your client to find out whether they are waiving the psychotherapist-patient privilege or would like you to assert the psychotherapist-patient privilege. Once you have your client’s direction in hand then your ethical and legal obligation is to appear and provide truthful and objective testimony. Given the ethical and legal pitfalls when providing testimony therapists should contact their malpractice insurance provider for attorney representation at the deposition itself. It may also be beneficial to consult with CAMFT’s legal staff before any action is taken in response to a subpoena. 

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Kristin 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 Sun Tzu, The Art of War 36 (Barnes & Noble Books 2003) (1910). 
² Id. at 15. 
³See Code Civ. Proc. § 2020.210(b) (“Instead of a court-issued deposition subpoena, an attorney of record for any party may sign and issue a deposition subpoena. A deposition subpoena issued under this subdivision need not be sealed. A copy may be served on the nonparty, and the attorney may retain the original.”). 
⁴ Code Civ. Proc. § 2020.220(c). One exception to this rule is that if you are a party to civil litigation no subpoena is required to compel your appearance. Instead, a notice of deposition is all that is required to compel your appearance. 
⁵ Any attorney of record for a party to litigation is permitted by law to issue a subpoena. Code of Civil Procedure § 2020.210(b). 
⁶Code of Ethics § 10.1. 
⁷ Code of Ethics § 10.5. 
⁸ Code Civ. Proc. § 2025.250. 
⁹Evidence Code § 1014. 
¹⁰ Id. 
¹¹Penal Code § 166. 
¹² Code Civ. Proc. § 2025.290(a). 
¹³ Government Code § 68093. 
¹⁴ Code of Civ. Proc. § 2034.430. 
¹⁵In addition to stenographic recording, a deposition may also be recorded by audio or video technology pursuant to Code of Civil Procedure § 2025.330(c). 
¹⁶ Perjury is a felony in California with the penalty of up to four years imprisonment. Penal Code § 126. 17 CAMFT Code of Ethics § 10.1. 

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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 this article.