WHEN ATTORNEYS COME COURTING: TESTIMONY SKILLS. “Alcohol abuse” - The use of an alcoholic beverage which impairs the physical, mental, emotional, or social.

WHEN ATTORNEYS COME COURTING:

TESTIMONY SKILLS

“Alcohol abuse” - The use of an alcoholic beverage which impairs the physical, mental, emotional, or social well-being of the user. 42 CFR § 2.11


“Drug abuse” - The use of a psychoactive substance for other than medicinal purposes which impairs the physical, mental, emotional, or social well-being of the user. 42 CFR § 2.11


“Drug abuse” - The use of a psychoactive substance for other than medicinal purposes which impairs the physical, mental, emotional, or social well-being of the user. 42 CFR § 2.11

“HIPAA” - Health Insurance Portability and Accountability Act of 1996, Public Law No. 104-191, 110 Stat. 1936 (1996)

“Individually identifiable health information” - A subset of health information, including demographic information collected from an individual, and:

(1)Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and

(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and

(i) That identifies the individual; or

(ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual. 45 CFR 160.103

“Protected health information” - Individually identifiable health information that is (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. 45 CFR 160.103

“Protected health information” - Individually identifiable health information that is (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. 45 CFR 160.103

“Disclose or disclosure” - A communication of patient indentifying information, the affirmative verification of another person's communication of patient identifying information, or the communication of any information from the record of a patient who has been identified. 42 CFR § 2.11

“Patient” - Any individual who has applied for or been given diagnosis or treatment for alcohol or drug abuse at a federally assisted program and includes any individual who, after arrest on a criminal charge, is identified as an alcohol or drug abuser in order to determine that individual's eligibility to participate in a program. 42 CFR § 2.11

“Patient" - A person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction. Texas Health and Safety Code § 611.001(1)

“Treatment” - The management and care of a patient suffering from alcohol or drug abuse, a condition which is identified as having been caused by that abuse, or both, in order to reduce or eliminate the adverse effects upon the patient. 42 CFR § 2.11

”Treatment” - The provision, coordination, or management of health care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party; consultation between health care providers relating to a patient; or the referral of a patient for health care from one health care provider to another. 45 CFR § 164.501

RULES TO FOLLOW

42 Code of Federal Regulation (42 CFR)

VS

45 Code of Federal Regulation (45 CFR)

• 45 CFR is HIPAA

• 42 CFR deals with Confidentiality Of Alcohol And Drug Abuse Patient Records

• Under either 45 CFR or 42 CFR disclosure may be made if the patient has signed a release in proper form prior to the disclosure.

45 CFR

• Covered entity (read provider) may disclose:• 1. Pursuant to a court order so long as no

more information is disclosed than is authorized by the court order.

• 2. Pursuant to a subpoena if there are satisfactory efforts to notify the patient or get a qualified protective order.

42 CFR

• An application must be filed which does not identify the patient whose records are being sought.

• The application may be filed as an independent suit or in a pending lawsuit.

42 CFR• The patient and the person holding the records

from whom disclosure is sought must be given:• (1) Adequate notice in a manner which will not

disclose patient identifying information to other persons; and

• (2) An opportunity to file a written response to the application, or to appear in person, for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order.

The hearing on the application must be held in the judge's chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the person holding the record, unless the patient requests an open hearing.

• An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find that:

• (1) Other ways of obtaining the information are not available or would not be effective; and

• (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.

• An order authorizing a disclosure must:• (1) Limit disclosure to those parts of the

patient's record which are essential to fulfill the objective of the order;

• (2) Limit disclosure to those persons whose need for information is the basis for the order; and

• (3) Include such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services.

PRIVILEGE

• Under both 45 CFR and 42 CFR the patients records are privileged.

• Under both 45 CFR and 42 CFR the privilege may be invoked by either the patient or the provider.

• You should INVOKE THE PRIVILEGE!!

SUBPOENA

A command to appear at a certain time and place to give testimony on a certain matter. Black’s Law Dictionary (See Rule 176, Texas Rules of Civil Procedure)

SUBPOENA DUCES TECUM

A court process, initiated by a party in litigation, compelling production of certain specific documents and other items, material and relevant to facts in issue in a pending judicial proceeding, which documents and items are in custody and control of person or body served with process. Black’s Law Dictionary

BASICS• May be issued by clerk, attorney, or an officer

authorized to take depositions.


authorized to take depositions.• May be served by sheriff, constable, or any

person over 18 who is not a party.



person over 18 who is not a party.• Witness must be served with copy of

subpoena and any fees required by law ($11).



person over 18 who is not a party.• Witness must be served with copy of

subpoena and any fees required by law ($11).• Witness must comply with subpoena unless

discharged by court or party summoning witness.

BASICS

• A witness may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served.

BASICS

• A witness may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served.

• A party may be served through his attorney and the distance limits do not apply.

BASICS• Documents or materials may be withheld if

they are privileged provided certain steps are taken to notify the party subpoenaing the records that the privileged documents have been withheld.

BASICS• Documents or materials may be withheld if

they are privileged provided certain steps are taken to notify the party subpoenaing the records that the privileged documents have been withheld.

• The witness may serve written objections to producing documents. The witness need not produce the documents that an objection to producing has been made.

BASICS• The witness may request a protective order

from the court and not comply with the portion of the subpoena from the witness seeks protection.



• The court is suppose to protect the witness from undue burden and expense. This would be one of the objections made.



• The court is suppose to protect the witness from undue burden and expense. This would be one of the objections made.

• If the witness fails to obey a subpoena without an adequate excuse may result in the court holding the witness in contempt.

CONTEMPT• A willful disregard or disobedience of a public

authority.• Two types of contempt:• A. Direct – in presence of Court

– Court may punish immediately, without a hearing

• B. Indirect – out of presence of court– Must have a hearing and proof of conduct

Punishment

• Fine (up to $500 per act)

Punishment


• Jail (up to 6 months per act)

Punishment


• Jail (up to 6 months per act)

• Coercive (put in jail until comply but not over 18 months)

DEPOSITION

The testimony of a witness taken upon oral questions OR written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon trial of a civil action or criminal prosecution. Black’s Law Dictionary

DEPOSITION

• Used for:

• 1. Discovery; or

DEPOSITION

• Used for:


• 2. Tie down the witness’s testimony.

DEPOSITION

• Used for:


• 2. Tie down the witness’s testimony.

• 3. Six hour time limit.

Conduct During the Deposition

A. “Objection, form” or “Objection, leading” as to any question asked.

B. “Objection, non-responsive” as to the answer to any question.

C. Witness may be instructed not to answer – used to assert privilege or protect witness from abusive questioning or to obtain a ruling from the Court.

If a witness refuses to testify the parties may recess the deposition, go to court and ask the Judge to rule on objections, order the witness to testify, and hold the witness in contempt if the witness refuses.

The witness may be placed in jail until she or he complies and testifies but not longer than 18 months.

Deposition on Written Questions

• Like oral deposition but uses written questions.

• Direct questions are served with the deposition notice.

• Cross-questions, redirect questions, and recross questions may be served.

• Deposition is taken by the deposition officer, not the attorney.

• Notice is given in same manner as oral deposition.

• May require the production of documents (often used to prove business records so they are admissible).

NON-PARTY DISCOVERY• May request documents and tangible things

without a deposition.• Must describe items with “reasonable

particularity”.• Except in limited circumstances, if seeking

non-party medical or mental health records must notify non-party.

• Give 10 days notice then serve subpoena.

“THE RULE”

• Actually two rules authorizing the court to exclude persons other than parties and their spouses from the courtroom during testimony being given at trial.

• Rule 267, TEXAS RULES OF CIVIL PROCEDURE • Rule 614, TEXAS RULES OF EVIDENCE

• The witnesses must be sworn and admonished that they are not to converse with each other or with any other person about the case other than the attorneys in the case.

• The court may also exempt from The Rule a person whose presence is shown by a party to be essential to the presentation of the cause. Expert witnesses are often allowed to stay in the courtroom to facilitate their testimony.

• If a person violates The Rule they may be disqualified from testifying.

• If a person violates The Rule they may be disqualified from testifying.

• Even if a person is exempt from The Rule they may disqualify another witness who is under The Rule by talking to them.

Social Workers Licensing RegulationsNOTES

Section 781.409 Rules Relating to Licensing and Regulation of Social Workers requires the licensee to keep “accurate and legible records of the dates of services, types of services, progress or case notes, intake assessment, treatment plan, and billing information;”

TESTIMONY

If you are called to testify in a deposition or court proceeding, your subpoena will identify which attorney is calling you, the time for you to arrive and the location or court to which you are to report. The attorney who has subpoenaed you will likely be in contact with you soon after you are served.

• If this is your first time to testify, you will want to ask about where to park, what is the expected length of time you should allow to be there, where to wait until you are called into the courtroom along with any other questions you may have.

1. Speak and act professionally when responding to the call.


2. If this will be your first time to testify, try to visit the courtroom and listen to others testify prior to the day of your testimony.


2. If this will be your first time to testify, try to visit the courtroom and listen to others testify prior to the day of your testimony.

3. Allow yourself enough time to park and get to the courtroom. Be on time.

4. The judge will call witnesses into the courtroom to be sworn at the beginning of the hearing. You will then return to the waiting area outside remembering that you are now a sworn witness.

4. The judge will call witnesses into the courtroom to be sworn at the beginning of the hearing. You will then return to the waiting area outside remembering that you are now a sworn witness.

5. It is common procedure for the court to exclude all witnesses from the courtroom while others are testifying. This is to insure that the testimony of one witness does not influence the testimony of another.

6. Remain alert while waiting outside the courtroom.


7. Dress, act and speak professionally when on the stand.



8.Tell the truth.



8. Tell the truth.

9. Do not be intimidated by the attorneys. They are simply representing their clients. Never lose your temper or argue with an attorney.

10. Remember that you are there to answer questions, not convince the judge or jury nor “protect” your client.


11. LISTEN TO THE QUESTION, pause and think about it before answering.


11. LISTEN TO THE QUESTION, pause and think about it before answering.

12. Answer questions directly with “yes” or “no.” Direct your answer to the attorney who has asked the question then stop.

13. Speak clearly and distinctly. Remember that everyone must hear your answers.


14. Answer only what you know.


14. Answer only what you know.

15. It is okay to say, “I don’t know” or to ask that a question be clarified or reframed. Do not answer a question you don’t understand.

16. Be careful of questions containing absolutes, i.e. all, never, none


17. If the judge asks you a question, turn and face the judge to respond.


17. If the judge asks you a question, turn and face the judge to respond.

18. If you realize you have given an incorrect answer, ask the judge for permission to correct yourself.

19. If your testimony is interrupted for any reason, stop talking. This is especially true when it is interrupted by a question from the judge or counsel's objection.

19. If your testimony is interrupted for any reason, stop talking. This is especially true when it is interrupted by a question from the judge or counsel's objection.

20. Remember that all documents taken by you to the witness stand can be examined by either attorney.

21. If you are asked who you discussed the case with, be honest and tell the court who you talked to. On the other hand, discussions with your attorney are privileged and confidential.

21. If you are asked who you discussed the case with, be honest and tell the court who you talked to. On the other hand, discussions with your attorney are privileged and confidential.

22. Once your testimony has concluded, the judge will excuse you. At that time, you will be free to leave the courtroom.

• Your letterhead• • • • DATE:• • Re: CAUSE NO. • Client: • • • Dear______________________,• • I am in receipt of your subpoena and will plan to be at the courthouse _________to testify at the time you designate in

the aforementioned matter. At this time, I have cleared my client schedule to assure availability. I charge a minimum retainer for trial testimony of $_____ for four hours availability to be paid prior to the day of trial. One-half ($____) is refundable to the client if my office is given 48 hours notice of hearing cancellation due to a mediated settlement agreement between the parties and the case is not reset. This gives me some opportunity to again try to schedule clients during that time. This fee includes court preparation for the hearing as well as travel and parking expenses. I will wait to hear more information regarding timing from you but have, in the meantime, cleared _________________ schedule of clients to be available. It is my understanding that I will be back in my office to resume client hours no later than _______ m. therefore my ____________ schedule has not been cleared. I look forward to working with you on this most interesting case.

• • • • Sincerely,• Jane Doe therapist