During bench hearings and bench trials, the social worker's testimony and reports will be heavily used for rendering a judgement. When the social worker goes up on the stand it is important to be mindful of several common errors that counsel and sometimes the judge allows. By spotting these parent's counsel can be better advocates for the parents.
The next part is the reports filled out by the expert witness. Believe it not, there are many reports that appear all the same even though they were done by an expert witness who is supposed to have a special relationship and understanding to the case. I have read many reports that are filled with boilerplate language. The report often contains information that is very similar and generally pulled from a template. Out of say 20 pages of a report, only two pages or so may contain very unique information about the client. The information that fills the other pages may be directly lifted from social worker's report or just general procedural issues. It is counsel's job to really scan these reports and find inconsistencies or vague terms that do not really clarify the issue at hand. The report may read as that the patient suffers from delusions or has anxiety but does not spell out how the patient manifests those symptoms or how they impact their ability to parent. Just like LPS conservatorship, a specialist may incorrectly draw a correlation between the parent's mental illness and ability to parent.
The larger issue is how the court will treat the social worker on the stand. Many times, county counsel will call the social worker up to the stand and the social worker will start spouting opinions as if they were an expert witness. The worker may say that because I say x y or z then this must mean the child is suffering from this unique condition. Many times the court will most likely take the case worker’s testimony at prima facie expert witness testimony. However, can parent’s counsel during cross establish that the social worker is a lay person and does not qualify as an expert witness. The social worker’s testimony should be focused around scheduling, observations, and case planning. The social worker reports should be observations only. The report for the visitations, status report, and review should consist on the social worker’s behalf be only observations. If there is information in the report that renders a judgement or opinion, then should that opinion be rendered by an expert such as a psychologist or DV specialist. If the social worker starts to make statements that reach beyond the scope of their expertise then it is counsel's job to acknowledge that. they are making an opinion to which they lack the credibility.
It will be important to establish the difference between lay witnesses and expert witnesses. Through proper cross counsel can break apart the social worker's expert testimony and credentials. Counsel may be able to ask to voir dire the case worker. Counsel can demonstrate that the social worker's credentials lie in child care and maybe administration. They have not obtained a PhD in psychology or undergone DV counselor training. What tenders an expert as a witness is either their background education or years of experience. Without either of those the social worker is not considered an expert.
Ensure that the social worker keeps to restatement of observations. There should not be conclusions about DV or mental health. If the social worker says I see [this event] then this expert opinion/judgement must follow. Should that not be considered to be overstepping her area of expert witness. If the social worker says that the department believes that this opinion is truth and the social worker is conveying the department’s recommendation, ask “If the department believes that then am I not speaking to the expert who rendered this opinion. Is there an expert whom I should be talking to?” The social worker is not an expert witness so they should not be making an expert witness assumption.
The next point is to see if the social worker can give more descriptive explanations. See if the social worker can give testimony that is not just yes or no but rather shows a picture of the bigger story. Focus on the quality of interaction. Show the judge that prior visits together were not just safe but that there was real bonding. Let the judge feel the impression of the visit through tone and eliciting emotions. Simple but humanizing the visit will help the judge as they are only human too.
Each case is different but in the case that I attended one key theory was showing that DV classes were unnecessary by laying the foundation for discrediting the expert witness in this case, a therapist.
The first thing counsel did was to lay the foundation of improper credibility or at least very limited credibility. Counsel asked questions that lead the expert witness down the desired path whether she wanted to or not. The key during this case was that counsel took his him speaking to the witness and having her reveal that her information was heavily biased toward county counsel/ the department's reports and she had failed to conduct her own independent research. Counsel built the case by asking if she spoke to any of the witnesses on the night of the incident. Did she ask what their version of the facts were? He asked if she based her expert opinion upon independent verified research or document prep during discovery. Through his cross he demonstrated that she had very limited scope and time. Her report was made under little time and based mostly on the department's recommendations. He showed that she did lacked personal investigation into the matter. He revealed how most of the opinion was provided by county counsel/ the department. He showed the court that most of the court documents were prepared by CC/ the department. Through further doc review he showed that the department overstepped its credentials and wrote expert opinions in the reports when they constitute as laypersons. Remember that expert witnesses are credible through education or experience. The department does not have either. By making a show that her research was biased, counsel demonstrated that her research was heavily biased and did not suffice to meet the criteria for independent research and opinion.
A sampling of the questions he asked during cross that led her down the path he desired:
Question 1: take your time to ask: [name of expert witness] would you agree that the opinion that you shared with the judge is only as accurate as the facts that you based that opinion on?
Question 2: And would you agree that the facts that you based your opinion on… if those facts are wrong isn’t it true that that might affect the validity/accuracy of your opinion.
Question 2a: So that I understand it the opinion you shared concerning the need for DV therapy is premised upon jurisdiction report/ detention report/ and status review report. After each one he asked yes or no to make it clear. He ended the list with "is that a fair statement?" By pausing and letting each document sink into the mind of the judge he maintained control over the path and speed her lead her down. By the time she realized where it was going she could not control the flow any more and counsel had done his job proving what he sought.
Counsel expected the expert to say yes. If she had not the court would have seen that the expert was more interested in saying what he is paid to say not what she believes. This line of questioning showed that the information that she based her opinion was heavily influenced by CC/ the department. If there had been an objection asked and answered, he could have rephrased. If the expert witness had chosen to cites their time as an expert witness years then this would have shown that they are only a professional court expert witness and not focusing on their speciality.
Question 3: Would you agree [name of expert witness] that if the facts that you were provided and based your opinion on; if those facts are wrong isn’t it true that that might affect the accuracy or validity of your expert opinion.
Counsel proceeded to ask the expert to interpret the facts of the case as presented and viewed by the defendant. At this point counsel is showing that the expert opinion may differ should there not be bias in the reports and evidence provided to her.
Question 4: Now, [name of expert witness] do something for me. In this case the father testified that the DV incident was a single incident. That the mother did nothing wrong. Having shared those facts with you do you feel that based on those facts assuming that those facts are accurate do you feel that the department’s recommendation for DV therapy is excessive and inappropriate?
Counsel is asking a question that should be a yes or no question.
Question 5: Let’s assume just for a minute that those are the facts and not the ones provided by CC. Having shared those facts with you do you feel that the situation assuming that the facts are true and accurate that this incident would have constituted a need for DV treatment? It is a yes or no question
The expert witness said something to the effect of:
If the facts are just as you described them to me then yes the agency’s decision to order DV therapy would be inappropriate and excessive.
Counsel ended with:
Thank you and please consider this for cross. I know DLSS has not had much time for discovery.
This hearing demonstrated that with effective witness control, he lead her down a path that he desired. He controlled her statements without making it obvious and most importantly he showed that her evidence was biased and lacked independent study. Cross examination does not need to be extra complicated or loud. It needs an element of calm and control and most importantly a plan of action.
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