Dr. Sharp: [00:00:00] Hello, everyone. Welcome to The Testing Psychologist podcast, the podcast where we talk all about the business and practice of psychological and neuropsychological assessment. I’m your host, Dr. Jeremy Sharp, licensed psychologist, group practice owner, and private practice coach.
This episode is brought to you by PAR. PAR has recently released the Feifer Assessment of Childhood Trauma or the FACT, the first and only comprehensive instrument measuring how stress and trauma can impact children in a school-based setting. You can learn more or purchase the FACT teacher form by visiting parinc.com\fact_teacher.
All right, y’all. Hey, welcome back to The Testing Psychologist podcast. I love today’s episode. This was action-packed, information-packed, and we had a little bit of laughter as well. I’m talking with Nicol Stolar-Peterson who is an expert witness. She is a licensed clinical social worker and the founder of therapistcourtprep.com where she helps therapists prepare for court and deflect it when possible.
Nicol and I got into all sorts of things about going to court: when you have to go to court, how to respond to a subpoena, how to negotiate fees, how to set your fees, what not to do in court, what to do in court, you get the idea. There’s a ton of information here. A lot of the topics we talk about directly address the questions that come up often in The Testing psychologist Community on Facebook. So I think there’s a lot to take away.
Before we get to the episode, I would like to invite the intermediate practice owners and beginner practice owners to perk up. I have two spots in each of those mastermind groups at least at the time of this recording. They will be starting in mid to late November.
The intermediate practice group is for those solo practice owners who have mastered the basics but are feeling overwhelmed and would love to dial in their systems, maybe hire an admin support person, and just generally do better while still staying in solo practice. The beginner practice group is for folks who are getting ready to launch or just launched their practices and would love some support and accountability with marketing, setting your schedule, figuring out which measures to buy, how to set your fee, establish a business entity, all sorts of stuff like that. So if either of those fit you, I’d love to talk with you. Like I said, two spots left in each group. You can book a pre-group call at thetestingpsychologist.com/consulting, and we’ll figure out if the group is a good fit for you.
All right. Let’s get to my conversation with Nicol Stolar-Peterson.
Hey Nicol, welcome to The Testing Psychologist.
Nicol: Thank you so much. I’m very happy to be here.
Dr. Sharp: Well, I’m happy to have you. I’ve heard of you through the Grapevine, through professional connections many, many times over the years. I think I’ve seen pictures of you on Facebook having fun with my friends and I’m like, “I need to reach out to Nicol and see what she’s all about. I’ve heard such good things.” So I’m super grateful to have you. I know you have a lot of knowledge to share with us. It’s going to be great. So, thanks.
Nicol: Thank you.
Dr. Sharp: The first question as usual is, why do this? Why make a specialty of this in addition to the work that you are already doing, but to create something, to be a resource for mental health folks going to court?
Nicol: I think because the work that mental health folks are doing is so important, what could be more important than learning and understanding how to protect your brand and your business by making smart choices when somebody asks at court or asks you to write a letter, or can you come and speak for me in court? Essentially asking a therapist to advocate, which we know in court, when therapists show up in court, 99.9% of the time it’s as a fact witness. They’re there to share information about what they’ve seen, what they’ve heard, what they’ve observed.
And so, I think what I’ve learned over time is that therapists really weren’t given the information that they needed about court and it comes up. And so we all went to grad school and they gave us certain things, but they really didn’t give us any information on how to run our business. And then, of course, the information we would need when people would ask us for these things, or they’re stuck in some type of a custody battle, and they’re trying to get something additional from the therapist.
And so without having that training and you’re just thrown into, sometimes these situations, I became very aware over time that a lot of my colleagues and friends needed help the day before court, or the week before, they were calling me and I was prepping them and helping them understand what the environment was going to be like.
I used to have an earpiece. I remember giving one of my kids a bath and trying to talk to somebody and thinking, this is nuts, and realizing there had to be a better way. And then I met Kelly and Miranda through Zynnyme, and went to their most awesome conference and had it kind of explained to me like, Hey Nicol, you have this thing that people need. And I was like, “What?” Like, yeah, you need to find a way to get it to more people without you because there are only so many hours in the day that you can do this thing. So, how do you help others in a smarter way?
And so then therapist court prep was birthed that weekend. And it was like, oh, people did meet this. This is something. Okay, I get this. And so I started developing therapist court prep. Here we are today. It’s been, I think, surprising to a lot of colleagues the help that is available and the fact that they really do have the skills that they’re going to need there. They just have to be teased out sometimes.
So, I’m just grateful that I have something that can help therapists because I really do believe in the work that we do as therapists and the importance of understanding the steps we have to take to protect it, which is sometimes things we don’t think about. We’re like, oh, we’ve gotten all practice. That’s good. Actually, there are some other things we have to do along the way, and this is one of them because it’s kind of a litigious time, people are involving therapists more and more often in court proceedings. So, I think it’s an important resource. So that’s why I do it.
Dr. Sharp: That’s fantastic. There’s so much in that that I want to dig into, but just a couple of things I’ll pull out right away that stuck with me is looking at it as a way to protect your brand and yourself and your practice. I think that’s a cool perspective that wouldn’t necessarily be the first thing to occur to me. I hope we can dig into that as we go along. `
Nicol: Yeah, it’s called CYA, Cover Your Assets. You need to protect your work. And it’s not enough to just understand the code of ethics just to pass the exam. It’s an ongoing living, breathing expectation. And so part of those expectations, one of the biggest ones is going to be staying in our scope. And when people pull on our heartstrings and ask us, can you do this for me? Or can you do that? And you’re like, oh, I want to help. And what can happen is then we can get led down a road that can be really dangerous for our business, because if we’re out of scope, then we have all sorts of issues that can come up, board complaints, the list goes on.
Our brand is really our name. It’s the service that we provide. It’s the same as knowing no, I know Dr. Sharp because he does this, this, and this. When we go in and we go out of scope, it can spread around. People are like, oh, wait a second. This therapist went and did this. Okay, hold on. And things can change pretty quickly.
So I always think of it as, it’s not a defensive thing. I’m not going to defend my brand but I’m going to stand for it. I stand for my work. I stand for the importance of the work that we do as therapists. And if I can convey that information in a clear way, in a concise way in a court, so that the bench officer has the information that they need, or if it’s a jury, they have the information they need to make a decision, that’s great, but my only job is, to tell the truth, and to talk about facts.
And so, it gets, I think, a little bit cloudy and murky for a lot of us therapists because, again, our heartstrings, and we’ve been with our clients for so long. And so things can change, but it’s our brand and our name is everything in the work that we do, obviously. So protecting it and recognizing what we can and can’t do, really knowing what our limits are and expectations, that’s great. And then, we can take care of ourselves and our businesses, these very important businesses.
Dr. Sharp: Right. Yeah, I think that speaking for myself, especially early in my career, and I think what I see with a lot of my therapists and psychologists here at the practice is that people freak out when the court gets involved. So like you get a subpoena or a client asks you to do something in the forensic setting. And that’s not our fault. I don’t know about you, we definitely did not have any courses in graduate school about…
How do you respond to a subpoena was the most we ever got. It never went to here’s what you actually need to consider or here’s what you do once you get to court. That’s not something that we learned, but you must have had experiences to lead you in this direction, right? And then to somehow decide to make a career of it and get really good at it. I’m curious what that evolution looked like for you?
Nicol: It was rough. The very first trial that I had to sit on, I was terrible. I was a social worker for child protective services. My boss said, “Just read through your case, go in there and tell the truth, and Stolar it’s going to be fine.” I said, okay.
So I did that. I showed up with this big old case file and I’d read it. I got up on that stand and probably one of the best attorneys in the area, of course, was questioning me. I didn’t know what I was doing. I over-talked. I under-talked. I interrupted. I went too fast. I was so worried. I was trying to keep up. I was flipping through this huge folder trying to find things cause I was feeling so rushed. The whole thing was unsettling. I had no idea what to expect in that room. The environment. My nerves were through the roof. I’m sure my leg was shaking. My legs usually don’t shake. You name it. Everything under the sun.
What I realized that day because, of course, I hate feeling like I don’t know what I’m doing. I don’t mind being wrong. I don’t mind getting things wrong and learning something new, but I hate that feeling of just not knowing what I’m doing at all. And I had that day. It was terrifying because it was such an important case. The work is so important that to not be able to convey basic factual information, was really hard and it was embarrassing. I just have this dark cloud over my head. It was just terrible.
So I left and I was like, oh, that’s it. I’m going back to the waiting tables. This is not for me. This is terrible. I told my boss, hey, I saw, “Help wanted” sign down the street at the restaurant. I’m going to go get a job there. And he’s like, just take a breath, take a breath. I just felt terrible and he’s like, “Well, what would you have done differently?” I’m like, “Everything. I don’t even know what to do about that. I didn’t even have to explain what had happened because I think I had this trauma experience of being just completely unsettled and I didn’t know what had happened. I was trying to explain and I couldn’t.
So, I really had to sit with it that night. And then, I kept thinking about the importance of the work that I was doing. So, I went back the next day and I said, “Hey, that was terrible. I’d really like to go learn. I’d really like to understand it.” And so, I was able to go back to that same courtroom, same attorneys who were like, oh, there’s that one.
When I walked in and had to just swallow my pride and say, hey, I didn’t understand anything that happened. And I would like to learn. What really surprised me is they were like, “Okay.” And I said, I just needed explained. I need to understand. And so I sat there and they would explain to me some of the handshakes that happen, even before you walk into the room. They would explain how everybody at that table actually does get along. They’re going to have lunch after even though they seem like they hate each other during that time.
I had it explained the difference between listening for a question and if you don’t get to finish, maybe the other side will pick it up and you can circle back. And just, it was the strangest day of just watching it play by play and recognizing that it’s such a different environment. And recognizing how they look when the social workers walk in with these huge case files.
And that was one of the things that I definitely obviously teach very differently now how to prepare for court. It’s very different from coming in with 5,000 pages and trying to flip it and find something magically. Instead, it’s like, okay, what can we do ahead of time? How can we prepare? What do we need to expect? What’s it going to feel like? What’s it going to be like?
I think being willing to swallow my pride was probably the best thing I could do at that moment in time. And to this day, I’m still willing to be wrong. I’m still willing to get stuff wrong because I think we can always learn. And people who think they know everything, they scare me. They scare me a lot because I feel like they’re dangerous because they’re not capable of learning more. And I always think there’s more. There’s always more to know and there are always new experiences.
And so, with my clients for therapist court prep, first, we do some grounding work and then we talk about what to expect. And a lot of things in life are preparation. It’s just like what we do with our clients is we sometimes are preparing them for situations that are uncomfortable, right? And oftentimes that’s why they’re with us is because there’s discomfort and we’re helping them through that. And so that’s the same thing that I’m doing.
I don’t hold myself out to be an attorney. It is not the same. I am literally a therapist who happens to also be an expert witness. And what I bring to the table is coming from a therapist’s perspective. I’m talking about the facts and understanding what our role is and what our scope is.
And all of those pieces together came out of this horrible day in court. But what’s great about that horrible day is that I was able to then go back years later on a very big case, same attorney. And I was like, “Okay.” I had a notebook I prepared that was a 3-ring binder. I had a timeline prepared. I had tabs. I had everything available to me. I learned how to pace myself. He would ask his questions and I was able to do what I needed to do in that space. And the outcome was extremely positive and the results were amazing. It was so worth it.
I always think back to, and the irony of it being that same attorney, same courtroom, I was like, Ooh, we’re coming back to it.
Dr. Sharp: I love it. It’s like a corrective, emotional experience.
Nicol: Absolutely. And I left just standing tall and you feel like you’ve literally climbed Mount Everest. You just feel amazing because you were able to stand in it. You are proud of the work you’ve done. Be honest and everything works out. But again, it was just getting used to that environment and the expectations of the environment, being prepared ahead of time, and getting organized.
Those are the pieces that I think we just don’t get taught and maybe wouldn’t think of, and our fear sometimes takes over. A lot of the therapists I work with fear really has driven them to a point where they’re like, I called my malpractice and there is an attorney, but he’s not really going to prep me. And he’s just said, oh, everything will be fine. And I’ll sit with you in the depo. And I’m like, yeah, I know us. Our people, for the most part, we like to be prepared. We like information. We like to practice.
So that’s what we do, but yes, it definitely came out of a very traumatic experience. So I’ve been there. I’m the weird courtship because I like court stuff, but I totally get it when somebody says they’re scared. I’m like, “Oh yeah, I remember that. And I remember falling on my face and it sucked. It was woo pride swallowing.” Oh my God.
Dr. Sharp: Right. That’s the part of the story. That’s the thing that sticks out to me though. You had that experience and then you made the choice to go back and figure out a way to do it better. I think a lot of folks get turned off. It becomes an avoidance thing and this huge source of anxiety.
Nicol: We got to go back to practice what we preach a little bit because we’re in the field of helping others move through discomfort. And for some reason, our particular community, I’m not speaking for everybody, of course, but I would say there’s a lot who will just bury their heads in the sand. I’ve heard therapists say, if I get a subpoena, I just don’t respond. I’m like, holy catfish, you have to respond. Are you trying to get pulled over? And you’re trying to find out that there’s a bench warrant out for you. You have to respond. That’s crazy-making, but I’ve heard everything. This is my favorite. I just charge $10,000 for court and then nobody’s going to make me go. But yet they’re cash pay.
I think hourly is like $100 an hour. Like how could you possibly explain that to a judge because it’s not going to go well? And by not responding, that’s when you do get ordered by a judge to show up in court. And that’s the whole thing that nobody needs. Nobody needs that.
Dr. Sharp: Of course, not. I think I’ve heard most of the funny myths that are out there. Well, they are not myths because we’re actually doing them. I’ll take that back.
Dr. Sharp: Yeah, the crazy realities that are. Well, I think those are good. Let’s start with some of that stuff then since it’s coming up because I think people, people have these questions, right.
So right off the bat, let’s do the subpoena thing. And then let’s talk about the fees because both of those are hot topics. We’ll just cover some basics and give people some info that they probably don’t have, or may have forgotten. So you get a subpoena. Let’s start there. You get a subpoena. What do you do?
Nicol: First thing is to make sure it’s for you. I always make a photocopy of one. That way I can highlight and underline on it because I am a very visual person. And I think a lot of us feel traumatized just by getting it. And when we see it, sometimes what I have found is therapists don’t always read them thoroughly. And you want to understand if it’s asking you for records, if it’s asking you for appearance, or both. You’re wanting to understand, is it for a deposition, is it going to be for going to court?
And there seems to be this idea that I hear this all the time. Well, if it’s not from a judge, then it doesn’t mean anything. I’m like, actually it does. You still need to respond to it. You don’t want something from a judge because you’re going to be ordered and that’s a whole different bucket. This is the nicer version.
And then once you have it, you need to determine, okay, is this client yours? And then, always reach out to your client because here’s the thing about subpoenas, they did not magically pick your name out of a hat. It’s not like, oh, I’m going to pick out of this Ms. Stolar-Peterson. I’m going to pick Dr. Sharp. That’s who I’m going to pick. No, somebody gave us up. Let’s see. Who could it be? 90% of the time, it’s going to be our client. They gave us up.
This is when we get to the importance of our informed consent. Back at the point of informed consent, we have to have a court policy in place that clearly states what’s expected and what we will and won’t do in regards to court. However, if they do subpoenas, they’re responsible for the fees. If they do provide us as a witness, they’re responsible for the fees. And then we clarify that.
But if we don’t have that and the subpoena shows up, it’s like, ah! And it makes it very difficult to get paid for something when you don’t have a contract. And when that informed consent with the court policy is not there that says that one thing about the court that clearly states it, that’s where a lot of therapists are not going to get paid for going to court because they might try to bill for it later. But if there’s nothing signed, maybe their client’s just like, actually I didn’t agree to that. I thought you did that for free. So I don’t really have to pay you.
And I’m going to say good luck to that therapist because you should have had that available to your client at the very beginning, right? It should be known from that first session.
Dr. Sharp: Right. Could I ask then, what would you say are the core components of an informed consent policy around court that we should be thinking about?
Nicol: So I will tell everybody, have your informed consent and then have the court policy separate, but do it at the same time. That way, if something comes up and somebody asks you to go to court, you can just email them a copy. PS, don’t forget you filled this out and signed this. These are the fees. These are the limitations and expectations. That way, oftentimes it’s just a deterrent. They’re like, oh wait, I forgot you charge $1000 for court. Ooh, maybe I don’t want to do this. I was thinking in my head like just a code-pay or just a one-hour session. No, actually these are my fees because I set aside my time, blah, blah, blah.
So having it be at the beginning, one clarifies if you do or don’t do court, right? Some people like it. Some people are like, “I’m happy to.” So you can say, this office does not provide court letters, dah, dah, dah, because court letters, that’s something additional, right? If somebody prefers to write them and they can say, we do write court letters, we charge this much per hour. This cannot be charged to your insurance or whatever.
And then the next section is going to be something to the effect of, if you provide me as a witness, however, this is going to be my fee for the day. This is how many days ahead of time I need to be paid. This is how I need to be paid. You also understand that you’re releasing your information because that’s the thing that I think a lot of clients don’t understand is once they say yes, they don’t get to pick and choose which parts of their file become known. It’s everything. It’s Pandora’s box. So I always like to do a session actually around it with my clients, like, Hey, don’t forget we did this, but let’s talk about what this really could mean to let everybody have access to me and to your records.
And so just taking steps through that, like what the fees are. But I think one of the biggest sections that I always focus on is limitations and expectations. I will not be making any child custody recommendations. That’s probably the biggest issue across the board. I have therapists who think, oh, why aren’t we talking about visits?
No, visitation is directly tied to custody and time timeshare. So we’re not doing that unless you have been appointed by the court as the child custody evaluator, and you’ve done it, then obviously you’re not going to be in a position anyway, right? So therapists, stay in our lane, we’re staying in our scope, but we have to clearly state that because some clients will be shopping for a therapist because their attorney told them, go find this. And then they get in there. And the therapist gets asked maybe a month, three, or four, hey, can you write me a letter? And the therapist is like, well, I don’t do that. Well, that’s not really fair to either party.
Wait, let’s talk about that at the very beginning, make a court policy, put it in there. I have one I sell online that’s a copy and paste. If you can take the yay or nay court, but anybody can write their own. You just have to make sure that it happens at the very beginning because you don’t want to end up six months in and not being able to charge for court or not being able to charge.
And I’m not saying you want to go to court, but however, should they subpoena you, here are the fees. So you just want it clearly stated. And then tends to be a deterrent because they forget, they ask you to go to court and you’re like, oh, hold on, let me just send you this one part of the informed consent, because if we send them 20 pages, they’re not going to read it. All of us kind of get traumatized. We’re like, oh, so much paper. Just send them the one piece that they need to look at it and be like, oh.
The other thing is they’re still going to have to sign consent for the release of information. That has to be done before we can release anything. Now, let’s say it’s an older client, we haven’t seen him in a few years and we get the subpoena, we still have to try to reach out and make a good faith effort to try to reach out. We can’t get a hold of them. Okay. And we don’t have consent. I like to respond to attorneys in writing. I like to do it by email. A lot of therapists don’t. I really do. I love paper trails. I’m a huge fan. I’m a huge fan because that shows that I made communication with you, you can’t go into court now and say, oh, she never called or we couldn’t locate her. I’ve got this email.
I would send an email at this time, I’m unable to confirm or deny that this person was ever a client. I don’t have any releases of information on file at this time to be able to release any information to you. That’s it. Then they’re going to call their client, and then they’re going to be like, oh, you need to call so-and-so, and then we’ll have a conversation. And then if they decide to release, okay. But I almost always encourage therapists to have a session around what that release is really going to look like. And then we release.
I prefer always releasing directly to a client if I can, but if there’s a subpoena, it is what it is. I’m going to have to release to counsel. But I love having paper trails. I’m a huge, huge fan. I’ve known, maybe hypothetically, a few attorneys who’ve gone into court and have said, we weren’t able to locate Ms. So-and-so and blah, blah, blah, blah. And I’m like, here’s my email. Actually, we did have a conversation.
So, it’s a lot of CYA. You’re taking steps to protect the communications that we’re having. The fact that we are looking out for confidentiality, whether or not we’re a HIPAA entity, but we’re still making sure that we’re looking out for our clients.
The other issue I think that comes up with this particular area is clients often, they’ll want their file, they’ll want their records and therapists are like, I don’t want to give it to them. Will they be in danger if they see it? Well, no. Okay. Well their stuff, right? It’s their record. They have a right to it unless, of course, we’re concerned about danger. So that comes up quite a bit too which I think has been interesting. And then that’s what I dig in a little bit deeper.
Therapists might say, well, actually my notes aren’t that great. And I’m worried that they’re going to think this, or they thought this during the session, but this is how it looks on paper. And I’m like, well, those are conversations you need to probably have with your clients. So you have a session around it.
Dr. Sharp: Yeah. I have a few questions around all that. So one thing that happens, at least for us, is we will get subpoenas, but then the client, for whatever reason, I don’t think it’s malicious necessarily with any ill intent, but they won’t sign a release of information. Like we can’t get ahold of them or they just don’t send it back. What are you doing in that situation?
Nicol: I haven’t necessarily had to deal with that, but if that does happen, then you have no choice, but to invoke the privilege. So, there are two different ways. You can say, I have, at this time again, there is currently no informed consent that has been signed. There’s no release of information. There’s not anything that I have to give you. I’m so sorry.
And if they still have you come to court because they think they’re going to have a judge compel you, you can say, your honor, I have to invoke privilege because, at this point in time, I don’t have a release of information. This could really hurt my ability to practice as a therapist without having that to release. Now, if the judge compels you and says, no, I want to know what’s in that record, which I’ve never had happen, I’ve only had it invoked a few times, but let’s say that did happen well, you’re kind of weighing your odds.
Okay. So is it a judge being unhappy with you or the board and the judge has the ability to put you in a little cell. So I’m going to go with the judge. That’s who I’m going to answer to at that point. You do have to decide. I can’t say either one’s better than the other, but when I think about the judge holding me in contempt or having to deal with the board, and I imagine the argument from the board is I have a judge compelling me, ordering me in a court of law to do this thing that I know is unethical but at the same time, I’m being told I have to do it by a judge who can put me in jail? So hello.
As long as you get on the record, I think what I’m invoking privilege and here’s why, blah, blah, blah, then I think more likely than not a typical judge is going to be like, okay, well, like, hold on. Let’s maybe step back for a second and see what else we can do.
The other thing with that is I think a lot of therapists will invoke privilege on behalf of minors because oftentimes one parent or the other is trying to tug and pull and trying to get the information. And what I, at least my experience with some amazing judges has been a recognition of the importance of the relationship that therapist has with the minor. And they don’t want it damaged. And they’ll say, okay, you know what? We’re not going to compel because this kid needs somebody to feel safe with. This information is just to get better. It’s not going to be used as some tactic in court to win points. So, I think as long as we’re ethical, that’s everything. And we’ve voiced that. But sometimes we just have to clearly voice it to the bench officer so they understand.
Dr. Sharp: Sure.Thank you. Let’s go back to the fee thing. That’s come up a couple of times and then we will circle back to how you actually respond to a subpoena. So you brought up the fees. Let’s talk about it. How do you set your fees for forensic work?
Nicol: Okay. What is reasonable? It’s good to have an idea of what others are charging, like what makes sense for you, but again, there’s always going to be a therapist who charges $100 an hour and a therapist who charges $500 an hour. So you just have to figure out where you fit as far as that and whatever your hourly cash rate is.
The way that I figure out a court rate is if you are going to have worked, let’s say eight hours in your office. And we’ll just go low. We’ll say everybody’s making $100 dollars an hour, so $800, right? Okay. So then that person will probably maybe consider charging $1000 for a day because we’ve got drive time and lunch. And they’re not able to be at their office. They’re not able to conduct work.
The other thing I don’t usually agree to is being on call. I don’t like being on call. I think it really messes with your practice. So really getting a set date and time is important. Some therapists will agree to charge for a half-day or a full day. You just don’t know how long, but the problem is maybe you’re only up there for an hour, but you couldn’t book three more clients because you thought you were going to be at court. So it’s still lost fees. So that typically is considered reasonable. So, if a judge asks you, how did you come up with your fees? You can say, well, I charged you this much. And then this is what I would have lost. So basically this.
Now, maybe you want to charge more for court because you’re going to include maybe prep time. That’s okay. Maybe you’re going to charge $200 an hour, right? Okay. So maybe that day is actually going to be $2000, but in that fee, you’re going to include prep. You’re going to include time away from your business. You just have to be able to reasonably state how you came up with them.
To say $10,000 because I don’t want to go to court, it’s only going to piss off a judge. Right? That’s like, are you kidding? They’re looking to us as fact witnesses. You’re here to bring information so I can make a decision and understand what’s going on. And to say to me, basically, nope, I didn’t want to come here and I shouldn’t have to, I charged this just so I don’t have to, you’re taking advantage. It’s not reasonable. So I would imagine that the judge would be like, actually, you can take $1000 for today or maybe you can go for free. So be careful.
When I hear the crazy fees, I’m like, how is that reasonable? And how is it ethical? I get that. You don’t want to go, but is it really feasible? Is it ethical? Does it feel good to you? And I think that’s where people forget, it’s your client that’s getting stuck with that bill. It’s not the attorney. It’s the client. So, let’s step back. I’m not saying do it for free. Absolutely not because I know the stress that therapists go through before court, but be reasonable. And so some people will charge maybe a prep fee and then their daily fee, or they’ll just put it into that fee. It’s really what you’re comfortable with, but again, is it reasonable?
Dr. Sharp: Yeah. So let me see. Let me run a couple of situations by you. I’ve heard and seen folks take your hourly rate for whatever you do in your private practice, testing or therapy and double it. And that’s your court fee? I’ve heard that as a rule of thumb.
Nicol: If that includes prep, but otherwise, what is it that’s so special about what you’re doing at court, and how are you going to show that that makes sense for drive time or lunch time? Again, when you break it down, if you’re sitting, imagine explaining it to a judge. That’s what I say by any fees.
Imagine just explaining it to a judge. And if you sound ridonculous then probably not the best way to go, but if it makes sense and you’re like, oh, okay, I get that. I’m charging double because it takes more preparation on my part. I’m doing this. I’m doing that. I’m away from my office, blah, blah, blah. Okay, I can buy that. But again, what’s your argument for it, right?
Dr. Sharp: That’s fair. Okay, so the next question is, do attorney fees figure into this at all? Because at least in our area, I think in a lot of other areas, the typical fee for an hour for an attorney is much higher than an hour of a mental health professional’s time. That’s also something that I’ve thought about is can we make our fees commensurate with the other advanced educated individuals in the courtroom?
Nicol: I think that’s fair if you’re testifying as an expert. I think if you are going into that room as an expert, I think because if we’re talking about fact witnesses, I don’t think that’s fair because you’re not bringing this additional information. You’re not bringing this additional teaching opportunity of specialized training and experience. Okay, that’s something.
I think if we’re talking to folks who are in the area of testing, and you’re just doing the testing and you’re just doing evaluations, then I think it’s fair to consider because you’re essentially testifying as an expert versus a treating therapist. So they’re very different things in my world. So treating therapists, fact witnesses, right? There’s a very tiny group of folks who are treating and are also experts. I don’t go into that world. I keep my two worlds separate because it can get really, really dicey.
But if you’re just going in as let’s say, you’re just doing the psych testing and then you’re going to testify about it, that is an area of expertise. You are going to be most likely vetted as an expert. There’s going to be a […]. And then if you’re testifying as an expert, why not get paid like one? And there are actually lists of fees that are available online for free of what different experts in different areas. So you can look and see Ph.D. versus an MD, like what are they charging to get an idea of what is reasonable. Is mine so far out there? Oh, it’s not. Okay. That might be something to consider.
Dr. Sharp: Sure, so this is where I tell my humiliating story. So the first time that I got called to testify, yeah, I’ll join you here, the humiliating part was around fees.
So I went through this whole process. I went to court, did the testifying. This was a case through a local DHS department. It was on me. We didn’t agree to any kind of fee ahead of time. That was just sort of compelled to be there. And then, I sent them… Well, let me back up. I did so much research on what my fees should be. I looked online. I probably found some of these lists you’re talking about. I thought I was being very deliberate and conscientious and I sent them…
Nicol: You gave them the contract for those amazing fees that you were looking at?
Dr. Sharp: No contract.
Dr. Sharp: Of course not. No, that would be too diligent.
Nicol: Okay, research.
Dr. Sharp: Yeah. So I sent them this invoice and God bless this attorney who came back to me and was like, Dr. Sharp. I don’t really know how to say this, but these fees are higher than anything we’ve ever seen on any invoice. And I was like, oh my gosh, I am so embarrassed. And I tried to explain. I was like, oh, I’m so sorry. I did this research. I thought it was. And he was like, that’s okay. We’re going to need a new invoice though. And I backed it down.
Nicol: Let’s talk about the government if we can.
Dr. Sharp: Yes.
Nicol: Okay, because there’s a difference. Definitely, that’s a great opportunity for that.
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Nicol: If you are subpoenaed by the district attorney or the public defender, you are going to get whatever set government rate. Now, if you are agreeing to be their expert, you need to agree upon, ahead of time what they pay their experts because they will have certain fees they’re allowed to and certain ones they’re not. And then definitely the same is true if you’re dealing with dependency court or family law, depending on which state you’re in and you’re talking about foster care issues, they’re going to have set rates as well for their experts. And so, anything with the government, again, you have to clearly understand ahead of time because otherwise, you’re going to get whatever they pay.
Dr. Sharp: Yes. So, that situation came up probably a year ago with two of my psychologists where we got into and the government rate, at least here is, let’s say a third of our regular forensic rate. And so I had a lot of questions about that with the attorneys and the folks involved just to try to figure out, do we have to do this? This is so much lower than…
Nicol: You don’t have to take the clients. And that’s the thing. You have to decide who you want to be in business with. And some people really like working with the government because they know they’re definitely going to get paid. They know it will take forever, right? Typical red tape, but it’s a lower rate, but it’s consistent work. Whereas others might prefer to charge a higher rate and not work with the government, but then at the same time, there are some risks of clients paying, not paying that sort of thing.
And then I think also what we see, there’s a trend with therapists and with experts who are doing testing and that sort of thing where you will have, like the newer therapists or the interns, who are taking on the government cases because they’re getting paid a lower rate. And so we see this across the board.
And so, some agencies will decide, okay, everybody’s going to donate. We call it donate. Let’s say, you’re used to making $200 an hour, and this is going to pay you $50. They’ll say, okay, we donate. We’re each going to take two of these a month and then we’re going to tell the government, we have a cap of 10. We only can take 10 from you because we feel like it’s important work. We still want to do it, but we can’t keep our business open if we do it this way.
So you just have to, from a business perspective, can you afford to do it and then, decide to, because I think it is a great opportunity to do the work that’s so important, especially with kids that need it the most. Decide how many like how you would decide how many sliding scales you would offer, that sort of thing. It’s the same concept. Okay. Well, we can only take 10 a month or we’re going to use these. These will be our teaching cases, and this is where we’ll teach our interns and we’ll take them through step by step to try to figure it out. But again, they are almost always going to be at a lower rate.
Dr. Sharp: So in this situation, and I think I’ve heard through my network and Facebook group, this happens fairly frequently. This was a situation where we did the evals with these kids. I don’t even know, let’s say six months before the court situation came up.
So we did the evals not knowing that it was going to go to court and then lo and behold, six months later, they asked two of my psychologists to come and testify as to the results of the evaluation. And that’s where we kind of, we didn’t get into it. It wasn’t contentious at all, but there was a lot of back and forth around like, so this is the rate that you pay, but we didn’t know, we didn’t really consent to do this. Are we compelled to be there?
Nicol: So let’s clarify from the very beginning whether or not you’re taking them. And then what the fee is. But at the same time that court policy, look, here’s the deal, especially if it’s going to be directly with the county or with the state, this would be the fee if you want any of us to be able to come. But a subpoena is a subpoena. You got to go. And if it means you’re not getting paid, it does suck, but they’re also going to know, here’s the deal, if we screw over this one agency, they’re not going to want to work with us. And we need them.
We need these evaluations, but here’s what I’m going to say for any psychological testing. If any of you are doing, sometimes we call them 730s and it kind of depends on what state you’re in, but if you’re doing some type of an evaluation, whatever it is, I want you to 99.9999% of the time assume it’s going to court to save yourself the grief because somebody somewhere wants a forensic assessment of something.
And the purpose of that 99.99999% of the time is in a court of law. They’re going to want to know how that shows up? How does that influence this? How does that do that? And yes, in the DSM PS on page 25 where it says, hey, these diagnoses are not hammer to the nail, but their guidance.
And it even says the court should like with caution, right? But here’s the thing is when we do an evaluation and let’s say you’re doing something like an MMPI or you’re doing a PSI or whatever it is, and the court wants to know more about it because of the testing, hopefully, the writing is clear enough that they can understand it. But oftentimes, they’re going to question how come you didn’t do this test? How come you chose this one? Explain to me this. Because if that testing is not perceived as supportive of one of the parties, that party has a right to question the person who performed that testing, who decided on that testing to say, this is why we would use this instead of something else.
And knowing that ahead of time, any time you perform a test or an evaluation, something to that effect, you can expect that somebody is going to have questions and that they have a right to ask you why you chose this, or why you chose that, and that sort of thing. So, I would just say to know that ahead of time and at the very beginning, especially figure out who your contact person is.
If you’re dealing with a government entity, say, show me what the let’s say, PR sounds terrible, Fellas would be, what the expectations are. Let’s sit down and have a conversation about what we can, and can’t do, what it’s going to look like and what you would need from us specifically so that we’re not racing to court, losing clients, and this, because we like this, or we want to keep helping, but we’re still running a business and government with all the love in the world I say this, they forget that because they don’t run like a regular business.
And we’re trying to keep the lights on. We’re trying to pay for our staff. And when you’re a government employee and you’re not in that administrative role of figuring out who’s going to get paid what, you’re just there to make sure things get done, they don’t get the kind of stressors I think sometimes that go on for somebody who’s not a two-week paycheck kind of person, which we’re not. Private practice is a very different beast and the stressors that come with that.
So I think maybe if you can sit at the table with that person and understand and have a conversation, it could really change how you guys work together, and maybe you can agree to a higher rate. Maybe they’ve only ever paid $250 an hour because that’s what this other therapist was billing. Okay, well, our therapists bill at $300, or maybe you really bill at $400 and you’re like, well, we’ll do it for $300 because this is for children who are in foster care, like whatever, but I would just sit with them maybe and have a deeper conversation as to like how to get kind of in that place of agreement, whatever that agreement looks like.
Dr. Sharp: Yeah, I like that. Just as maybe a procedural piece too, something that we learned in that process was, it’s important who signs the informed consent. So, in that particular case, we had the foster parents sign the informed consent, but it came to light that, well, you should actually have somebody from the government entity sign the informed consent because they’re going to be paying for it if you go to court.
Nicol: And they’re truly the ones that have custody of the kids. The foster parents are providing care. They’re fostering. They do not have custody. Think of it like that. They live there. It feels like custody, but legal custody is with the agency. And so having them sign off and in agreement to what is, or isn’t going to be used, that’s extremely important for a lot of different legality issues, but we can.
Dr. Sharp: Another can of worms.
Nicol: A whole can of worms.
Dr. Sharp: Yes. Let me ask another question around these. I’m really hammering on this, but these are the things that get tripped up. So, super naive question, but who pays for these fees? Is it the client? Is it the attorney? Who do we send the bill to? Who should we expect to be paying us in these situations? Not government-oriented. Let’s say these are private clients.
And the reason I think it gets mixed up is because often we are contacted by attorneys or by the court, and then yeah, it comes up. It’s like, well, who do we send this bill to?
Nicol: 90% of the time that bill is going to go, typically it’s going to go to your client. You’re going to invoice them. And oftentimes if they’re wanting you to show up at court or depo, you’re going to agree that you’re going to get paid maybe seven days ahead of time. So that way you have that in place.
I’ve had as a fact witness once where the law firm actually cut me a check, I think because they had whatever kind of a setup with the client where they had a certain amount that they were going to be spending on experts. I wasn’t coming in as an expert. I was just a fact witness, but they, for whatever reason, determined that they were going to cut me the check that day. And I was like, okay, but the majority of the time it’s going to be from the client.
Now, the question is who’s the client, right? That’s always the question. Who is the client? And that’s probably one of the bigger issues is determining who’s the client. When it’s the government, we’re talking about a PD or we’re talking about a DA, then they’re going to be cutting a check. So it’ll come strictly from the county. And usually you need to have, I always say, keep a W9 with you, just to make life easier because they’re probably going to ask you for it. Keep an invoice. That way you can just hand it off. But I like emailing again, paper trail. It’s always nice. So I email a lot of that, but most of the time it’s going to be the client.
If it’s a public defender, if it’s a DA, it’s going to be typically going to come from the government and you have to deal with them and fill out whatever paperwork in order to get paid from them. If you are going in as an expert. So let’s say you’re doing the testing and you’re doing the psych evals, again, you had a client who said, I’m going to do this. Now, if that client talks with whatever law firm and the law firm says, okay, well, we’ll pay for the person who did your testing and they want to cut you a check, that’s fine.
It’s not like you’re bought and paid for by the person who writes the check. It has nothing to do with it. The person writing the check is paying for your time, not for your opinion. They’re paying for your time. And so, your statements, your statement of facts if you’re coming in as a fact witness, or if you’re coming in as an expert, your opinions, they’re never paid for, it’s your time.
So, that was probably one of the best things I got from it. I went to an expert witness training by Seak and one of my trainers, his name’s Jimmy, who appreciated this, but he talked to, he was like, you guys it’s your time. And it really is because the truth is the truth. And it’s just a matter of like the rest of us. We all show up at work and we get paid a certain rate for doing our work. And that’s it. It’s doing our work. It’s not paying for somebody to say yes or no. It’s just paying for your time. And then it’s up to you to show up as the ethical person that you are, and to tell the truth and to provide that information so the court can make whatever decisions they need to.
Dr. Sharp: I like that. That’s an easy rule of thumb.
Dr. Sharp: Yeah. That’s nice. Let’s talk about facts versus experts. I hear a lot of confusion around this as well. And you’ve mentioned this a few times, so let’s break that down.
Nicol: Sure, let’s make it really easy. A fact witness is going to be your typical therapist who has a relationship with their client. They’re aligned with them. They’re working with them. Maybe they’ve worked with them for six sessions, maybe it’s been six years. I don’t know, but as therapists, it’s okay to be biased because it helps us do our job. It helps us to be on the side of alignment with our clients. That’s okay. Bias always sounds terrible. It’s always used in a horrible way, but in our world, it’s expected. So we are biased when we are the treating therapist. We are working with them.
Okay. Now, facts only. So if you are the treating therapist, again, I say 99% of the time, you are going to be the fact witness. You’re talking about what you’ve observed, what you’ve seen, tasted, smelled, it’s the basic senses, right? It’s facts. What you saw, maybe you saw a fight in the parking lot. Maybe you saw a black guy. Maybe you saw a kid go in the fetal position when dad was brought up, who knows?
You’re talking about the facts. We’re not doing the whole forecasting. Well, do you think in the next two years that this person could be violent and blah, blah, blah, blah? Come on, please. I can tell you based on my experience, my observations, this is what we have today. That’s it. Okay.
So then we move over. Let’s say we’re moving over the world of expert witness. Expert, witness, very different. They do not have a preexisting relationship with the client. They’re coming in to do a test or coming in to do an evaluation. They’re coming in to do an assessment of a case maybe, but their whole job is to show up and to provide information to the court in different ways.
A lot of times we’re teaching about something very specific that we happen to know about. My area of expertise happens to be child welfare. So I’m going to talk a lot about the standards, what’s expected. I’ve never met any of the people on the case. I don’t talk to the social workers. I don’t talk to the clients. I just get it all, sometimes it’s 30,000 pages and I’m going to go in and I’m going to review, but I’ve never met these people. I don’t have that relationship. Maybe I’ve seen them, a picture of them somewhere, but I don’t know. I don’t have that with them.
So I don’t have bias. I’m going to do an objective review. I’m going to provide that to the court. But again, I don’t have that preexisting relationship. And so that allows me then to come in and just be really objective and say, this is what I see. This is my opinion about this. This is my opinion about that based upon my training, my experience, and my education.
But again, that’s very different from what we just talked about as being a fact witness. Being an expert is a strange spot to be in because you’re going to get vetted. You’re going to get […] Someone’s going to decide whether or not they find you truly to be an expert, whether or not they agree with everything on your CV. Is it really reflective of what you’re talking about? That sort of thing. Do you have the training, the education, and experience to be an expert in what you’re talking about, to say, I think this?
It is very different from a fact witness because all they have to do is tell the truth about the facts. They’re not opining. That’s a big difference. One is just providing facts. The expert witness can opine. We can have opinions about things because of these, this, this, this, this, and this. So they’re very separate. They’re intended to be separate.
A good example of this would be a forensic interviewer for children. There are CPS workers or DCFS, whatever you want to call them, who are going to go out in the field and do an investigation. And let’s say a child discloses sexual abuse, they’re going to let them finish whatever they’re saying. And then they’re going to try to get them over typically to some type of forensic interview. It might happen that day. It might happen in a month, depending on the forensic interviewing calendar and all the things.
So the whole purpose of that interview or not being that social worker is they don’t remove kids. Their only job is to talk to kids all day long in that room and to talk to them using typically like the 10 step interview, which is a very specific style of interviewing. Then when they go to court, they can talk about that style of interviewing and why it’s important. What the testing shows. Why that is the best style of interviewing for children? Then they’re going to also talk about the fact that they never met that kid before. They didn’t know that kid. They just did that interview. Maybe they had to do two interviews, but that’s it.
Their whole job is very forensic, right? It’s just this one thing versus having the social worker do it when there’s an assumption that, like they could take me away. So I’m going to tell them whatever I think I’m supposed to. That’s very different from going into forensic space and then having it recorded and having law enforcement on the other side of the mirror and all those pieces.
So again, it’s like, what’s the purpose of what the work is that we’re doing? Therapists again, 99.9% of the time, they’re going to come in as a fact witness. If you’re coming in as an expert, you’ve been hired to do an evaluation, an assessment, or review, you’ve been asked to give an opinion because you have a very specific area of expertise, whatever that might be. They just stay separate. And that person is providing opinions. The expert is providing opinions based on their training, education, and experience.
Dr. Sharp: What about those situations where we do an evaluation with an individual or a kid, and it was not for the purpose. We weren’t originally retained for the purpose of doing an evaluation for the court, but then we ended up again, like six months down the road where the families are now going to court and they pull in the evaluation results and pull us along with it. Where does that fall?
Nicol: Are you saying you’ve also been treating that kiddo, and then you also need to decide to do an evaluation to try to… Is the purpose of the evaluation to help treat, or to assess? What’s the purpose?
Dr. Sharp: Yeah. Let’s see. I’ll give you a great representative case. So typically when we do evaluations, we’re not doing any treatment at all. So, families, let’s say parents will contact us and say, Hey, my kid’s been struggling in school and he’s having meltdowns at home. We’d like to do an evaluation to figure out what’s going on.
So we do the assessment. Maybe we diagnose the kid with a learning disorder and some depression or a behavioral disorder. We don’t do any treatment. We do the evaluation. We give them the results. They go on their way. Six months down the road, they’re in court because parents are getting divorced, and lo and behold, there was something going on that was influencing the kid’s life, or they think that. So that’s kind of a representative situation that we might run into.
Nicol: Again, think of it from a teaching perspective. A lot of times when we see clients, we’re getting a snapshot. We don’t get the whole film. We get a snapshot and the snapshot in time. And I think when I was writing the evaluations, at the end, I would always put something like, if there’s additional information or something that you know, blah, blah, blah, that could potentially change the outcome of this.
I always put in a blurb about that because it’s true. There’s always more. We’re never going to get it all. We’re never going to get it all, not in the testing, there’s just no way. We’re getting snapshots and it’s like putting it together and trying to make sense out of the puzzle and yet some of the pieces are not there and you’re like, okay, what does the picture look like? Okay, well, I’m missing an eyeball. I’m missing afoot but okay, I can see the picture.
And oftentimes I think that’s what we have to convey is like, this is, again, it’s a snapshot. It’s not going to be the whole. So these are the impressions. And again, we’re not going to be forecasting, because I think forecasting can be dangerous. I think there’s I’m sure some folks out there who are capable of it, but if you’re just coming in for a quick evaluation, forecasting is not something I would probably get on board with because, if something does happen, you’re in a tough spot, right? And I don’t know that any of us have that magic crystal ball. That’d be great if we did. But I would just say for those particular situations, I would just recognize that, again, something additional information if they asked you.
I’ll give you an example. Dr. Sharp, when you agree that you weren’t privy to this information about mom and dad and their life, like yes, that’s true. We weren’t provided with that. Okay. Well, isn’t it true that that could have possibly influenced the outcomes of this particular test if you would have that information? Yes, that’s true.
That’s all you do. You just answer truthfully and honestly. And again, we can only do what we have in front of us. We just can’t do it any other way. So you just told the truth. That’s it.
Dr. Sharp: That’s it. That’s easy.
Nicol: It’s so easy.
Dr. Sharp: I think that’s a great springboard to talking about mistakes that we might make or maybe tips for once we’re in the courtroom, but I am going to close the loop on how to respond to a subpoena. So is there ever a time when you can ignore a subpoena? And if not, okay, thank you.
Nicol: I see you want a new set of bracelets.
Dr. Sharp: Okay. I don’t need any bracelets. Okay, anything else to say about how to respond that we haven’t already covered?
Nicol: I think we’re pretty good. Emails are great. Talk to your clients. Make sure you’ve got consent. If not, if you’ve got an invoke privilege, sometimes you do have to show up to a deposition knowing you’re not going to be able to say anything. Somebody needs to show up to court. But knowing that too, because somebody didn’t sign, I always bring one to court in case they didn’t just in case, but I want to go off to the side and not do it in front. I don’t want them to feel like they’re under duress. I want to have a conversation and make sure they understand what they’re signing. They might’ve just not gotten a hold of me or something like that. But for the most part, I think we’ve covered it. Yeah.
Dr. Sharp: Great. All right. So I know we could do a whole series of episodes on how to behave in the courtroom. So I’ll put that caveat right at the front, but do you have any sort of big picture recommendations for once we get there and people are asking us questions, things that we might trip over things to keep in mind?
Nicol: Sure. I always start with the basics, like just as a therapist, ground your feet, make sure your feet are planted on the ground. For females, sometimes you don’t know if it’s going to be an open well or not, which means that, I always wear dress slacks because you’re typically going to sit in an elevated position. So you’re already crossing your legs, like a whole thing, right?. You’ve just nothing you need to worry about. So be comfortable. I always wear pants that have elastic because I breathe really big. I don’t need to be constricted and pass out. Wear something comfortable but professional. Almost always, I’ll be in a suit for court because I want to look the same as the attorneys in the hallway and not to look like a warm inviting therapist, which we usually do.
Dr. Sharp: Can I jump in and ask a question about that?
Dr. Sharp: In two situations, I have had the opposite experience. And I wonder if it makes a difference. Two of the times that I’ve gone to court have been in rural areas. I don’t know if that is a factor or not, but I was the best-dressed person in the room.
Nicol: If you’re concerned about that ask, I’ve had been to a few courtrooms that I was surprised because I saw arms, I saw a woman wearing a dress that had no sleeves and I thought, oh my gosh, that would never fly in these other courthouses, but it was more rural. So again, if their attorneys, I mean, they would just ask, what is the dress? I want to make sure of that. And just they’ll say, oh, well I usually wear a polo shirt then you know you’re probably in a polo shirt.
But I recently had a colleague who went to court thinking it would be rural and showed up in jeans and a tie and a button-down shirt and was reprimanded for not showing up in dress slacks. So ask ahead. It just doesn’t hurt. Ask ahead. No, I totally hear you on that. And I do think about that too when I’m going to go and I’m going to testify is, where I will be kind of fitting into what everyone else, but usually if you’ve met the attorney, you see how they dress, but depositions, they tend to be more lax, is again, ask.
And if everybody else is in a t-shirt at the deposition, but you’re the one being videotaped. You’re the one that’s dressed up. So you have to know ahead. I always take my suit jacket out of the plastic. I pop it on and then it goes right back in the plastic when I go back to the car because I hate wearing suits. The same thing with flip-flops, all the way till I get there, and then I put on my heels. So dress comfortably.
I tend to wear an old watch. I don’t wear my apple watch to court because I feel like it’s going to be the one day that it’s going to beep and I don’t know how to turn it off. And I like having a dial because I actually will look at it and I will count four seconds if anybody’s familiar, four-square breathing. I do the four seconds of breathing in, breathing out. I hold. And that helps me slow down because core, as you can tell, I talk fast.
So I work really hard. So if I’m in a courtroom, I want to make sure that I’m being clear, concise, and explaining so that the person who is writing down every word that I say it’s clear to them, and there are no mistakes, but if I’m talking like this, the way I’m talking with you or what a mess. I’ve been told I can talk at 200 words per minute.
Still sorry. Sorry to that court reporter. My bad. I’m getting better, but pacing [01:03:00] myself is listening for the question, right? Always listen for the question because here’s the thing. They’re going to ask a question and guess what happens after that?. Somebody may have an objection. We have to wait for it. We have to give them a chance to object. And then we have to wait for the judge to decide what’s going to happen. So, I learned this at a different training which I loved because I love taking little tidbits that are helpful. This is from attorney Bronstein. Hilarious guy. He said, here’s the deal. When they sustain the objection, sustain has an S that means shut your mouth. Sustain- shut your mouth. Overruled- open your mouth.
And if you’re still like, Hey, wait, what was that thing I heard about on the podcast? Oh, crap. I got in court. Look at the judge and the judge will say, you can go ahead and answer, or you’re not answering that. They appreciate it when you look to them because that’s their house. Look to them, show them respect. There are some times where I’m like, I’m listening to the question, somebody sustained or I don’t know what happened. And I’m thinking, oh crap, because I’m already thinking of my answer. I will look at the judge and wait. And the Judge will say, so you can go ahead and answer. And that gives me sometimes two extra seconds of like, okay, I can get my thoughts straight because still, my adrenaline’s going when I’m in there. I want to do a good job. I want to make sure that I’m being clear.
And if I make a mistake, we make mistakes in court, you can say, I’m sorry, your honor. Earlier I said something I wanted to clarify. Oh, okay. Go ahead and clarify because they want it correct on the record. So you can say, I said 10, it was really 6, I apologize. I was thinking about it. It’s six. Okay. Thank you so much. And then that might open up somebody. Oh, I have a question about that. Okay, we’ll answer it.
But the biggest mistake, there’s probably two, that call that colleagues have made in a courtroom is, getting defensive. That’s probably the biggest, because man, we’ve got some ego stuff going on. As therapists, we feel all the things and it feels like it’s an attack on our work, on our abilities, on what we know, what we don’t know. I think we’re just one group of people that overthink and second-guess ourselves, I would say more than most.
There’s good and bad in that, right. But in this space, here’s the deal. It’s not about you. You are there to tell the truth. It’s just so simple. You’re just there to tell the truth. And if it starts to feel defensive, look at your watch, do some four-square breathing and just take a second, take a sip of water, just slow things down. Do not feel like you have to go at some speed. It doesn’t matter. If somebody is talking like this, but Mr. So-and-so, isn’t it true that dah, dah, dah, dah? I’m sorry. Could you repeat that or slow that down for a second. I wanted to hear it. They’ll repeat it for you or they’ll have it read back to you. And that gives you more time to just take a breath.
Listen to what you’re being asked. It’s better to say, I don’t know if you don’t know the answer than to come up with something because you’re perjuring yourself. And we get nervous as adults. I should know that. I should know that. Sometimes you just don’t know. And you’d have to tell the court. I don’t know, or I don’t understand the question.
I work with kids when they have to testify in court. They’ve been a victim or witness of a crime and we have a nonprofit. And one of the things that we do is we prepare them and we talk about not understanding a question and saying, it’s okay to say, I don’t get it. Can you say that differently? And they have to reword it for you. That’s fine.
The other can be, if you get asked a forced option question, right? So a yes or no, for us, a lot of the time because of the way our work is, and like what we talked about earlier, snapshot, It’s not always a yes or no. It can be sometimes. It can be a maybe. It can be, at times. It can be, often. It could be so many things, right? I’ve had attorneys get frustrated, but Ms. Stolar-Pearson, you could have answered that with a yes or no. I say I can’t answer that with yes, no because that would be incorrect. And I’ve been asked to tell the truth and the truth is this.
Sometimes that is how it looks right. Sometimes this. So again, be comfortable with not knowing. Be comfortable with saying I made a mistake. Just tell the truth and it all tends to work itself out. But I would say the other big issue that I think comes up is, therapists will not come prepared. I would say go through your case.
I create myself like a three-ring binder so that I have everything I need. I create a timeline for every single case I do. I want the beginning, the middle and edit those hotspots. Maybe there was a day that a client showed up with a black eye and maybe there was a day where there was no show. Maybe the data canceled because they’re moving because there was domestic violence stuff, whatever it is.
But by having that timeline available to me, it keeps me calm and it keeps me from flipping through a million pieces of paper. And if I make a timeline, I’m going to bring copies. I’ll bring like four copies because the judge is going to want a copy, the attorney is, because whatever I show up with everybody gets to see. And I want to make sure that I don’t get dinged for that.
But at the same time, what it tells the attorneys is I’m ready. I know my case, and you’re not going to waste my time or try to get me nervous by saying, well, what date was that? And what date was that? And then you’re like, oh my gosh, where is it? No, no, no, no, no. Everybody will wait for you. And judges like to keep their calendars. And so when they see an attorney doing this, it’s like, okay, do we really need that date? Or what’s going on? And it’s a tactic and that’s fine, but why not have that appreciation of being prepared, and have that timeline ahead of time.
It takes that tactic away. And now you’re feeling more comfortable because you can see your whole case in front of you just, and it helps jog your memory. It helps you remember stuff. So you’re not constantly asking to look at your notes. And any time we look at our notes, I always say, your honor, may I look at my notes? Yes, you may look at your notes to refresh your memory. And you know, I’ll look at them and say, okay.
Those are the big things in the courtroom. A courtroom is a place where I tell therapists, if you get a chance, go ahead of time and sit in court. So you can typically sit in family law court, not dependency for confidentiality reasons. You can sit in a court where they just do restraint in orders. You can sit in criminal court unless they’ve sealed the courtroom. That’s a great opportunity to, first of all, get comfortable with where you’re going to park. Where’s the courthouse? What do the rooms look like? Where are you going to be walking to sitting, standing?
When you go in, if the deputy or the bailiff asks you,do you have a case? No, actually, I’m a therapist. I’m going to be testifying here in another week. I just wanted to get a feel for it. Oh, okay. Go ahead and have a seat. We’ll tell you where you’re supposed to sit. Don’t wear headphones. Don’t wear sunglasses on your head. And you just sit there and you get used to that environment and it makes it so much easier when you come back because it’s not so scary. You’re not like, where am I going? Or what’s it going to feel like? You already know those things. And you’re like, oh, that’s what the judge looks like.
Dr. Sharp: I like that. Yeah, make it more familiar, less scary.
Nicol: Yes. All those things.
Dr. Sharp: Awesome. Oh my gosh. This has been so good. I know there’s so much more that we could talk about. but I will close with a question. If there are folks out there who are thinking to themselves, for some reason, I would like to do more of this. I would like to get into this world. Are there resources? I know you obviously have an amazing resource. Are there other resources that folks could look into, training, entities that can help with that?
Nicol: Yeah, if they’re interested in getting into expert witness, I really like Seak, which is spelled S-E-A-K. They seem to offer, I think probably the best that I found for experts on, testifying, on kind of organizing your business and marketing and writing reports and all of those amazing things. So that’s been great. For fact witnesses, I don’t know of any other resources other than therapists cour prep, because I looked and really didn’t find anything. And so I always tell them, utilize your malpractice insurance because you’re almost always going to get an attorney that’s included. It’s paid for by your malpractice. Why wouldn’t you?
But at the same time, there are some clients who will feel like I need more. I need to do some one-on-one with you to feel like it. I need to talk to another therapist who’s been in this situation. So it just depends. But I really haven’t found a lot of facts. And then I’ve been looking for years for expert, but Seak is the one that I really enjoy. And, I actually signed up for another three training, I think with them because they’re that good.
Dr. Sharp: That’s great. Well, all those resources will be in the show notes. We’ll definitely link to therapist court prep. I just appreciate your time. This has been great. And I hope one day we get to hang out together and actually have a good time face to face.
Nicol: One of these crazy conferences, I’ll see you. But thank you for highlighting this. I just think it’s really important for therapists to know that they have some help. What I’ve heard from therapists is they listened to one of my podcasts and they’re like, it was so helpful. I’m like, “Yeah, listen to them more. They’re free. Go for it.” That much information. You may not have to buy anything. You could just keep listening to podcasts.
And I love the work that you’re doing. So thank you for highlighting that. And I think it’s really, really helpful and you probably don’t realize it right now, but you’re probably saving somebody’s practice.
Dr. Sharp: One can hope. If one person’s practice is saved,
Nicol: It’s worth it, right?
Dr. Sharp: It’s worth it. Awesome. Take care, Nicol. Thanks so much.
Nicol: Thank you.
Dr. Sharp: Thank you so much for tuning in as always. I really appreciate it. It has been awesome to see the growth with the podcast over the last few months. I sort of lost track, to be honest. And we passed half a million downloads a few weeks ago, which is truly incredible. Thank you to everyone for listening and spreading the word and growing the audience.
Like I said, at the beginning, if you’re an intermediate practice owner or a beginner practice owner, I’d love to chat with you about jumping into a mastermind group and getting some accountability and coaching. You can get more info at thetestingpsychologist.com/consulting. All right, stay tuned. I’ve got some great episodes coming up. Take care in the meantime. Bye, all.
The information contained in this podcast and on The Testing Psychologist website is intended for informational and educational purposes only. Nothing in this podcast or on the website is intended to be a substitute for professional, psychological, psychiatric, or medical advice, diagnosis, or treatment.
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