Deposition, Not Damnation
Introduction
Over the course of my career as a private investigator I frequently worked for insurance companies investigating worker’s compensation or disability fraud. I was asked to testify in court but I never had to as the thought of my presence had the defendant in many cases accepting an offer from the insurance company which resulted in the matter being settled. My report did the work for me. I was all set to testify and ready to go.
This time around, I was dealing with the courts as an intern counselor though. I was incredibly nervous concerning this. A part of that was my clinical judgement being under scrutiny for the first time. Despite past related experience, I was nervous. In hindsight, I should not have been. This was in essence something to just be expected. This experience in my internship was exponentially valuable. This prepared me for the challenges ahead in my current position in community mental health. I will discuss the why behind the subpoena first and then discuss lessons learned.
Context
I was subpoenaed due to me being the therapist for an individual who was injured in a major industrial accident which almost cost the client their very life. This industrial accident involved the client’s commercial transport vehicle colliding with a semi-truck. They thankfully survived. They had an intense case of Post Traumatic Stress Disorder afterwards. Being caught in anything that reminded of them of that day was a significant trigger... The insurance company that represented the careless and now deceased individual who injured my client argued that since my client made progress in therapy, it was now Generalized Anxiety Disorder.
Again, this was the first time my clinical judgement was under scrutiny in regards to the legal system and it had me nervous. As the day grew closer though, I grew more confident. This was just a deposition, not a damnation. Being subpoenaed was intimidating, turning over my notes was intimidating, but in the end, it turned out fine. A colleague I had at the time thought it was highly intimidating. In his close to fifteen years of practicing he had never been subpoenaed. After it happened, it did not seem intimidating to me at all. The process of getting a subpoena though can knock a person off kilter due to the demanding legal language it uses. The verbs compel and command are hardly as warm as a dinner invitation or an invitation to a seminar for free CEUs in our field.
Subpoena
The subpoena I received came via first class mail. It asked for the entirety of my progress notes while treating this client, and I was ordered to be deposed at a date that would be selected in the coming months. Despite the shock of this to a new counselor, my internship supervisor informed me that she and I should have seen this coming due to the pending litigation. Regardless, it made my internship certainly more interesting and empowering! I never thought I would ever again have any contact with the legal system after having left private investigations. Again, this was a worthwhile process in the end as although as the odds of me testifying in court or being deposed is always possible. I will speak on that later.
Many counselors including former coworkers have told me that they never have had the experience and it scares them. My own therapist informed me that it is not as big of deal as people make it out to be and he informed me that I would do fine with my experience and the fact that I treated this client with a precise treatment plan that was largely based on evidence-based therapies. He informed me that the lawyer of the insurance company would likely not be interested in my testimony as I was an intern at the time. Unfortunately, his inclination of this particular attorney not being interested in my testimony was incorrect. This lawyer, in hindsight was looking for a weak link and as the intern, this litigator suspected I was the weak link by default and in turn there they waged an all-out war on my client and my clinical expertise. I learned much from this experience.
Three Lessons Learned
Here are three lessons learned from this civil deposition that I will cherish throughout my career going forward as these are applicable to all counselors in any kind of setting.
Tell the whole truth, and nothing but the truth: These are legal proceedings. While a judicial officer is not present, a counselor is still under oath. This proceeding is between you, your client’s lawyer and whoever is representing the opposing party regardless if they are the plaintiff or defendant. Of course, there will be a court reporter, but they will be in the background typing away largely. Telling the truth is nothing new to us though. Our ACA code of ethics informs us that we have a principle of veracity. This has us either answering what is appropriate to answer in a deposition or simply stating “I don’t know.”
The client can still be cared for despite the prying eyes of lawyers and the parties, pernicious or otherwise that they represent: In this proceeding the lawyer representing the insurance company asked me a question that had nothing to do with the trauma my client experienced from the accident. It happened to involve something intimate that was not this lawyer’s business nor anyone but my client’s business. I told this attorney that I would not divulge this information. The attorney told me that they could depose me again and get a judge to rule on the matter. I informed her that I would welcome the involvement of a judicial officer. I did this as again nothing was relevant about these intimate matters to the presenting clinical problems of PTSD.
The client is still our client during a deposition. There are limits to what the court needs to know, especially an overzealous attorney who does not represent the court as a whole. This is why I asked for the judicial officer’s involvement as I had hope that any rational trier of fact would find that this other information had nothing to do with the client’s diagnosis of Post Traumatic Stress Disorder. I also made the comment to this attorney on the record that their questions were inhumane and were attempting to minimize my client’s trauma. The principle of Fidelity from our code of ethics was at play here as I was continuously demonstrating that my notes continued to show that my client still in fact had PTSD, despite making some improvements in therapy.
Psychotherapist, protect yourself. The attorney representing the insurance company who was deposing asked if I wanted to sign off on the record right away or reserve my signature. I chose to reserve my signature. While this was a civil proceeding and the court reporter seemed competent, I wanted to review the transcript before I was to sign off on it. It is better to look over what was recorded in the proceedings rather than just accept what they have taken to attempt to preserve accuracy over what was said. I wanted to make sure what I had said was reflected accurately in the record. To me this was a prudent choice.
Application & Conclusion
This deposition was not a horrible experience like I was expecting it to be. The deposition was merely a transition in my career as I went from being just an intern counselor into becoming the real deal that I am today. In the long term, I view this experience as a useful one as it prepared me for work at a community agency where I do many assessments on individuals that are mandated by the court system or by the department of corrections. The number one difference between this civil matter I discussed is that the stakes are highly different regarding to the reasoning behind getting deposed. I am frequently As I continued in my role performing the assessments on these individuals, I know the likelihood of me being deposed is even greater than before.
The next deposition if it should come will likely be in a criminal or family court. Stakes will likely be different rather than just punitive or compensatory damages. Rather, the stakes will be involving liberties and parental rights. The child welfare system in Illinois frequently calls on therapists to provide reports of client progress in relation to progress on the reunification of children with parents.
This experience was a useful one for me as it allows me to share the lessons I learned for others as well as remember these lessons for myself. It is my hope this article shares with you the lessons I learned within this deposition.
Original Source Link: https://www.linkedin.com/pulse/deposition-damnation-brandon-c-hovey-ma-lpc-ncc-daqwc/
