Subpoena Seminar Transcript

Introduction by Debra: Lisa Angel is going to start. Lisa is a certified board certified family law specialist. She’s been practicing for over 20 years. So we’re very pleased to have her here. She was formerly on the North Carolina Domestic Violence Commission and has done, seminars around the state about domestic violence and family law. And she’s going to start our subpoena seminar.

Lisa Angel: Thank you. Thank you. Debra. Thank you all for being here. We get this question a lot from mental health professionals. And so we thought, why not do a whole seminar on it to try to clear the mystery surrounding subpoenas that dreaded, document our word that you sometimes receive.

Let’s let’s try again, though. How many in this room have received at some point a subpoena? Yes. Everyone. So just about everyone. So, today we’re going to cover all of the ins and outs of subpoenas. And at any point, we can take questions.

Lindsay and I are going to tag team and do some different sections. But the purpose really, for us being here is to help you know what to do, how to respond, to have a comfort level so that when you do receive this document or hear this word, you know what to do and how to respond.

So let me give you a little sense of what we’re going to cover today. Today we’re going to talk about the logistics, the details, all of the, the figures and deadlines that you need to know. And I call that the what, why and how of a subpoena.

And just so that, you know, in front of you, we actually have something that, we’re going to email to you as well. We call this our e-book, this blue document. The document that you will receive by email actually will have even more information than this one does. We’ve updated it, since we put this to the printer. So the document that you’ll get by email, because you RSVP for this seminar, will actually have even more in it than this one does. But you got in front of you, information that actually Lindsey Willis in our office wrote.

This is also going to go on our website, and we compiled for you all of the statutes. So the rules, the law is all here. And our hope was that not necessarily that you’re going to take this home and memorize it. You could if you want to. That’s okay. But that you have it handy for yourself. So if you need it, you’ve got it literally. This is the law related to subpoenas and to testimony and to privilege. And we’re going to talk through everything that’s in here, but that’s what you’ve got in front of you.

We also have, I’ve done a book about divorce called Smart Divorce. So feel free to take as many of those copies as you want back to your office. We’ve got some up front. If we run out, we can, mail them to you. That’s not a problem. We’ve done this as a resource for clients, and we’re finding that our clients really enjoy it. We’ve worked on it for about ten years. It’s a project that we kind of picked up and put down and kept going back and forth, too. So, we think it’s a good resource for people going through divorce and separation, so feel free to do that as well.

So let’s talk about we’re going to cover the what why and how. Then Lindsay is going to talk about the differences between privilege, confidentiality and hyphen. If you’ve got lots of competing laws surrounding whether or not you can testify, there’s the whole logistics behind receiving the subpoena. But then there’s the issue of, well, I got one. What do I do now? Do am I allowed to testify? I’m allowed to say anything about allowed to get documents. And then the question that everybody really wants is, how do I just stop this? How do I stop? What? Stop the madness. I don’t really want to be involved in this. Nobody. I didn’t sign up for this. I would have gone to law school if I wanted this. How do I stop it? And then we’ll take questions as well.

So that’s a little bit about what we’re going to cover today. Let’s talk first about the, the what of a subpoena. What is a subpoena. And you in in your materials, the last page, we’ve given you a copy of a subpoena. And this is actually what we call and lawyers refer to as AOC form. It means administrative office of the courts. And the courts have told us this is the form we should use. And on this first page is the information related to, when you’re going to testify, what is going to be required.

But a very key consideration about a subpoena to start off with is there needs to be a lawsuit that’s been filed. Some clients will come to me and say, you’re just going to send out a subpoena tomorrow, right? No, no, I’m not going to do that because a underlying lawsuit has to be filed. There has to be a plaintiff and a defendant. Some some type of dispute is occurring. And the lawsuits. Filed in the court system for there to be a subpoena.

So, you know, just be aware that this means there is a civil lawsuit has been filed. And literally you’ll see that at the top of this for it. You know, it’s saying the state of North Carolina, which county and it’s plaintiff versus defendant that will be filled in to the right. Here will be a file number and district versus superior court. And then your name will be listed as the name in person to be subpoenaed with your address and phone number. It doesn’t have to be a home or an office address. It just needs to be an address.

And then there are different ways that a person can subpoena you. One of those, the technical Latin phrase is subpoena duces tecum, which means bring some documents with you. And the word subpoena actually means under penalty. So it means that there’s a reason why, you know, there’s there’s a consequence to this document that so the Latin phrase subpoena means under penalty subpoena duces tecum just means bring documents with you. You can see that on this form anymore because AOC decide to get rid of a Latin.

But occasionally you’ll see a lawyer that likes to put the Latin in there. And so you might see that, that phrase somewhere. But you’ll see here on this form that there’s different ways that you can receive the subpoena. You could subpoena, see one in the beginning here, to appear and testify in court at certain time. And if that’s the case, they’re going to list the time in the courtroom in the place.

You can also be asked to appear and testify instead at a deposition. Anybody gone to a deposition? Oh, fine. So a deposition is what we refer to as a discovery method, and discovery is that the time during a lawsuit where we get the opportunity to find things out, we’re discovering things. So it’s a way that we can ask questions of other people before trial. And literally what a deposition is, it’s a time where you’re sitting in a conference room under oath, in front of a court reporter, and then the lawyer for one of the parties is allowed to ask you questions.

So a deposition is where we’re asking somebody questions under oath. The court reporters writing those things down, transcribing them, just as a as a side note, at the end of it, you’re allowed to look at that transcript just and say yes or no as to whether or not I said those things. I had a case recently where the, deponent decided to correct all of his grammatical errors that was sealed to say he wouldn’t- I never would have said “ain’t”, so, but the deposition is a time under oath for somebody to ask any kind of questions. So it’s much broader than what might happen in court. A deposition can be used – it’s what we call fact finding, we’re just trying to figure out what’s out there to figure out what might happen at trial.

A deposition can also be used because we want to tie somebody in to their testimony. We want them to put under oath. This is what you said on this day, so that if you say something different in another court of law, if you say something different at court, we can impeach you. We can use that testimony against you.

So there are different reasons to take a deposition. And sometimes people have multiple reasons. They want to tie down the testimony. Sometimes they’re doing it because they just have no idea what the person’s going to say and they rather know before the day of the trial. So a deposition is one of the ways in which you could be subpoenaed.

The next one, and, this one does not involve testimony, it involves just the documents. So you’ll see that’s about the subpoena. duces tecum, bring the documents. And that’s bring the document to a, certain time and place, and that usually is attorney’s office, and they’ll list the time and place to bring the documents.

Now, once again, I’m talking about the logistics of a subpoena. But next we’re going to talk about what are the objections you can have. What is what about confidentiality? Why are you, why should you even be required to do any of this?

Okay. So that’s a little bit about the, the what of a subpoena. It will physically look like this. Now, there’s a difference between a subpoena and a court order. You’ll see at the bottom of this, who can sign this subpoena? So a subpoena can be issued, meaning that the person signed it by a lawyer. It just, the nature of being a lawyer, we’re allowed to do this. This is my little perks. And you get to be a notary without taking a class.

So. So these are these are some of the things that, we are allowed to do. We are allowed to issue a subpoena, assuming that we meet the rules. And just so you know, the rule is up front here on your, first page of your materials. Rule 45 is the rule that addresses the logistics of a subpoena. Who can be subpoenaed? How did they get subpoenaed? When did they do their objections? What can what are the time? Everything about a subpoena in terms of the logistics is in this rule 45.

So I, as a result of being a lawyer, can issue the subpoena. The other way a subpoena can be issued is if somebody is not represented by a lawyer, but there are party in the lawsuit, so they’re the plaintiff or the defendant. They have another step they have to go through, though. They have to go to the clerk and ask the clerk to issue it for them. And the idea is putting, you know, kind of a check on the system to make sure they’re doing it correctly.

So either a lawyer or a party can issue a subpoena, but it’s not a court order. So a judge is not signing it. And that’s a very big distinction that you’ll find throughout this process. A judge is not ordering this. There are consequences to this subpoena. You do need to respond to it. But a judge did not order this to happen. And we’ll we’ll talk a lot today about why that matters.

The most important reason why that matters is that if you have privilege and if you need to defend your privilege, a court is the only way that can be overridden. So a judge forcing you to testify, ordering you to testify when you have privilege, is really the only way that you can violate your privilege in the court ordering you to do so. And we’ll talk about the logistics of that.

Now, why would you be subpoenaed? And and we’re talking about it in the context of family law. What we do is we represent people going through divorce and separation. So we represent people in child custody actions, domestic violence actions, alimony, child support, property division. And I just wanted to give you a sense of, from our perspective, why are we issuing these subpoenas so that you have some understanding of what what might be going on in the heads of the lawyer who sent one of these to you.

So let’s talk about a little bit with alimony. It doesn’t come up as much with alimony, but sometimes it does. And most often it comes up in the context of the ability to work. So does the dependent spouse have the ability to work? Does the supporting spouse have the ability to work, or are they underemployed? Or do they have a disability that you’ve been talking to them about, that you know a lot about whether it’s an emotional disability, a mental disability, physical disability that would impede their ability to work.

Maybe they’ve presented that to the court and said, hey, I this is the best I can do, this job that I’ve got, even though I made 10 times that right before the word separation was said. So, you know, those are some of the things that a court might be interested in or a lawyer might be interested in hearing about, is what unique information do you have about their, state of mind and about their abilities?

The other very important thing about alimony, which is somewhat unique to North Carolina, is that alimony is fault based in North Carolina. This is the only way in which fault matters that much in our, you know, in our statutes and the alimony, in North Carolina, if a dependent spouse has committed adultery and the supporting spouse has not condoned that in any way, meaning they haven’t forgiven it, they haven’t reconciled after they found out about the adultery, they didn’t stay together and kind of work on the marriage. Then that dependent spouse is barred from receiving alimony no matter how long the marriage was.

So we could be talking about a 30 year marriage, which might have lifetime alimony associated with it normally. But if the dependent spouse had an affair, they’re out of the ballpark on alimony. And that is a huge, significant financial, consequence.

So there are times in which we’d like to know, was there a discussion of an affair? Was there discussion of a reconciliation after an affair? It it’s, it’s not just, interesting information to a lawyer. It can be critical information for either client for the supporting or the dependent spouse.

And so you could get caught in that tug of war. Maybe you had. Marriage counseling with the couple where they discuss the affair. Maybe your client, confessed the affair to you. Was talking about the affair openly with you during the entire, therapy sessions. So? So that becomes very important. And in alimony context, it’s critical information because, the the party themselves, they’re not, they’re either going to try to not testify or maybe they’re not going to testify truthfully about it. And so we’re looking for third party information.

Okay. Then of course, the other area where we talk about it, custody, a child custody trial, anything and everything, every tiny detail about a person’s life is technically relevant in a child custody setting. I mean, it’s hard for me to find something that’s not going to be potentially relevant in a child – now, is it going to be dispositive? Meaning is, is it going to be something that a court is definitely going to care about? Maybe not, but it’s going to be relevant in a child custody setting.

So you’re going to hear about – maybe you never even met the children. Maybe you didn’t really even hear about the children that much. But you know, whether or not mom or dad has been struggling with prescription drug abuse. You know, about whether or not mom or dad has had trouble with alcohol or whether or not there’s been domestic violence in the house. So you, even if you have really not been involved with a child, you have information, potentially, that a court is very interested in related to child custody.

Now, under these circumstances, and we’ll talk about this distinction a lot. You, the circumstances I just described, you are a what we call a fact witness, which means that you are describing things that you saw, and I, I tend to, call fact witnesses. People, like, with a car accident. Was the light green or was light red when you saw that, did the person run through the red light or not? You’re describing something that happened, and that’s the information that you have.

An expert is someone who is describing what they think should happen, giving an opinion on the circumstance, saying, well, I think that this client actually is not disabled or is disabled. I think that this parent should have custody, should not have custody. Those are opinions. And unless, in my opinion, unless you’re hired to do that, you really should stay away from that area.

And there we’re going to talk about the reasons why. Because it is going you’re going to get sucked in. Somebody is going to want to pull you in. If you you start expressing an opinion and you’re not going to get paid for that expert opinion. So there’s multiple reasons why, if you are the fact witness, you stick with the facts.

And, we have yet talked about how to avoid being the witness at all. But if you are the fact witness, you stick to the facts. You avoid the opinions unless you’ve been hired to be the opinion expert witness.

So the question is, what happens in that false scenario I just described about alimony, where a couple does go to marriage counseling, tries to reconcile, and it doesn’t work. So what the case law talks about in reference to condemnation. The case law looks at more than just the marriage counseling. So they’re looking at things like, it’s actually very explicit. It says did they have sex afterwards. Did they, after they the spouse knew about this affair, did they have a sexual relationship? Did they hold themselves out as staying together? Did they stay living together? Did they work on the relationship?

So condemnation is, is more than just going to the marriage counseling. It also needs to incorporate other things, but they can then separate. It didn’t not work and it still have, that the fault have still technically have been condoned. And technically condemnation is something that the court has to find. So they have to hear the testimony and decide, yes, this this did happen because it’s a defense that the dependent spouse could raise.

So the question is, what happens if I, if I say these very vague things in the notes and could I be compelled to testify about them? Yes, potentially. And, we’re going to talk about the circumstances regarding that, but that is where the court is overriding the privilege.

So if the privilege is there, and there’s two ways in which that privilege can be overridden. One is the client waives it. Client says, I know I have privilege, but I, I’m walking away from it. And the other is in which the court overrides it. The court says, no, we’ve decided it’s in what we call quote unquote, the administration of justice interest for us to know.

And as a practical matter, we tend to see court doing it more in child custody settings because they feel like a child’s best interest is important, whether or not they would do it solely to get at the alimony information, that’s up to a court, but I see that less often, because a court views that as getting in the way of therapy sessions

Question from audience: Will you talk at some point then about how you can write it-

Lisa Angel: Absolutely, yes. So let’s talk about and that’s next. Let me get through this part here. Service. How do you get served with a subpoena? It’s actually pretty easy. You can get served by certified mail. You could get served by someone over the age of 18 just giving it to you. So it doesn’t have to be the sheriff. It could be the sheriff, but it doesn’t have to be, it could just be a person of some sort, you know?

So. So it’s it’s not a huge burden. It’s not very challenging for someone to, receive service. You can what? You can do what we call accept service, where you can say, look, just send it to me. I’m not going to raise service as an issue. And most people do, because it’s so easy for us to get a subpoena served that it and, it’s, it’s worth it for you just to say, fine, give it to me and then I’ll raise my defenses. But the service issue is generally not a huge issue.

Okay, so what if you ignore it? Bad idea. Yeah. Don’t. We’re going to give you lots of ways that you can address it and respond and object. But ignoring it is just a bad idea. There’s contempt of court, there’s sanctions, there’s lots of bad things that can happen to you. They’re all in the book for you. But it’s better for you to use the strategies that we’re going to talk with you about today.

Okay. So Lindsay’s going to talk about the privilege now, and she’s going to talk about the distinctions between privilege and confidentiality. But privilege, in essence, is the shield that you can raise, the subpoena itself, the logistics of it. Everyone has the right to send to you. Fundamentally, no matter what you may want to have happen, a lawyer is going to have the right to send you a subpoena.

Lindsay Willis: Okay. So if you guys want to look at page six of your law handout that we have here, this is where we’ve listed some of the relevant privilege statutes. There’s certain relationships in North Carolina that our statutes protect and, you know, provide people with some sort of this idea of privilege.

There’s an attorney client privilege. There’s doctor patient privilege. The ones that I’ve listed here are probably more pertinent to your practice, but there’s counselor privilege. There’s school counselor privilege, there’s psychologist. There’s marriage therapy privilege. All of them are listed in here. But basically, it says that any judge, any judge can, can court order you to bypass your privilege.

And so that’s like the big takeaway that everyone’s concerned about. Well, I have this privilege. I know that I have this privilege is protected by statute. A judge can can compel you to disclose whatever it is you’re asked to disclose. Anyway. This only can happen with a court order. So the subpoena alone, this can’t force you to testify. So this one, unless your client consents to it and gives you a waiver, this cannot force you to testify or bring documents or anything like that.

It’s a court order that’s going to have to be what, what’s in place. And so logistically, you know, more often than not, if you’re, if you’re subpoenaed to come testify in court at a hearing, what’s going to happen is that you’re going to take the stand and you’re going to raise your privilege, as Lisa said, like a shield. This is my, this is my privilege. I have privileged information. I’m not going to share it. This is the statute that says I don’t have to.

And then the judge will then say, okay, well, this is important. I need you to go ahead and disclose that ruling on the bench. That’s sufficient for a court order. You don’t have to be issued a document in advance saying the judge says, yes, you have to do this. You can be in certain circumstances. But if you’re compelled to, if your subpoena asks you to come testify in court, you get, after you raise your privilege, and then the judge is either going to say yes or no.

Like Lisa said, in custody, it’s more likely that knowledge that you have will probably be important, and the judge will want to know. They want to act in the best interest of the child. They want to know all of the information. So kind of in the pursuit of justice, the judge would be more compelled to, ask you to disclose your testimony and, you know, share whether you’re an expert witness or not, share your opinion.

If you are an expert witness, that’s going to be more likely in an alimony trial, maybe not so much. If you’re in a custody hearing and maybe the attorney has subpoenaed you to talk about something that’s not really relevant to child custody, maybe there was an affair, and the judge doesn’t think that really should matter. Then the judge may say, no, we’re not going to ask you to go ahead and testify and you’re done for the day. But logistically, that’s that’s really how it works.

So you get served with your subpoena. We’re going to talk about different ways you can respond to it a little later on. But the big question everyone always wants to know is why I have this privilege. What’s it good for if the judge can can compel me to say this, this, you know, protected information? Anyway, the reality is, like Lisa said, it’s really kind of it’s, it’s to allow the judge to really, kind of act in good faith. Have all the facts and details at hand. And like I said, for custody, it really is of utmost important for the judge to get a full picture of really what’s going on.

Okay. So we’ll go ahead and we’ll talk about confidentiality was really kind of false. Touches the tip too. So, confidentiality is different from your statutory privilege. So the law says this is privileged information. These are privileged relationships. HIPAA, as you all know, is out there. And HIPAA kind of protects patient records and patient information. The federal, it’s federal law. What’s important to take away about HIPAA is that HIPAA can’t preempt more stringent state law. And because our state law already says you cannot you cannot disclose without waiver or court order, then HIPAA basically kind of points to the exact same thing.

So it can’t, that’s already as stringent as it gets is, basically how it’s viewed, the state privileges. And so HIPAA can’t make it more stringent. Excuse me, the other way around. So basically what it does is point you right back to your privilege. There are certain things that the Department of Health and Human Services have suggested in responding to a subpoena that would be worth knowing. One of the things they suggest is that you always notify the patient. So that’s something that I know we’ll talk about. You know, sometimes it can be a little bit harrowing. Do I tell this person that I got a subpoena, or should I just try to go ahead and get myself out of it beforehand? HIPAA would like you to go ahead and notify them.

And then HIPAA would also like for you, in the alternative, if you can’t HIPAA ask that you, seek a protective order or somehow then you kind of pursue the motion to quash the subpoena so that you’re not sharing that confidential information. And then you may even have your own confidentiality agreements in your office that you use with your patients, but anything is going to be superseded by that state privilege. The judge can still get you on the stand, and the judge can still say, this is important to this matter. I need to know, you know, what was said in these sessions or, you know, that sort of thing.

So now we’ll kind of talk about how we’re going to respond so you can contact the patient, which is generally a good idea. Go ahead and tell that person because you don’t know that person, the person may say, “Yes, that’s my attorney. They want you to testify really kind of on my behalf, or I know it’s good information that you’re going to share”. They may go ahead and consent.

If they consent. You want to make sure you get that waiver in. Writing has to be signed and them have to be notarized, or you think that it needs to be in writing and needs to be signed. And you need to be make sure that it covers exactly what you’re going to be testifying. So you need to kind of be specific, make sure that it’s not just some generic kind of waiver form that just says, “Yes. If my attorneys ever called to court, I will always agree that he or she can monitor any excuse me, my, counselors call to court. Then he or she can kind of testify about everything and anything that I’ve said in here”.

You want to make sure that’s kind of tailor down and that the patient knows what they’re signing. So if you sign, you know, you present them with that sort of waiver with all their other intake forms. They’re not necessarily going to be understanding everything because they’re getting bombarded with with paperwork. But the best the best course of action always is to go ahead and contact the patient first.

So contacting the patient we do that because it’s a HIPAA requirement or a HIPAA suggestion, maybe not a requirement, but I have a suggestion in dealing with a subpoena. And then like I said, the patient can either, consent to it or that maybe the patient says, absolutely not. Under no circumstances we’re moving forward with this objection. So those are the kind of the three, the three things that we’ll talk about with that.

The next thing that you want to do, really almost automatically is go ahead and call that attorney who issued that subpoena. This can save you a lot of time. It can save you a lot of hassle. One thing that it can do is that it can actually allow you to avoid testimony, maybe. And you pick up the phone and you talk to the attorney, and the attorney says, well, it sounds like, you know, you weren’t really involved in her case when the incident happened that I want testimony about. And maybe the attorney really doesn’t know how much involvement you had.

A simple phone call and actually speaking with that attorney can really limit can either limit the scope. They can say, okay, well, we don’t need all five years of client records, which we’ve subpoenaed. Maybe we only need it for this three month period. Or the attorney can actually, after you speak with them, end up thinking, well, no, this isn’t actually going to be worth it. I don’t know that I need to have this person actually come to court anyway. So it can, I mean sometimes just that simple phone call can kind of get you off the hook without having to go through the formal motion to object.

Another thing that contacting the attorney can do is the attorney can kind of work with you. We are all required when we go to court to be at calendar call at 9 AM, and then we don’t know whether we’re going to get reached that day or if it’s going to be at right at nine or at noon or at two. The judge will have everyone present a calendar, call all attorneys and parties, and then basically kind of create his or her calendar that, that morning.

So if it looks like you’re not actually going to if we know that if I have subpoenaed someone, I know I’m not going to get reached till two based on when I show the calendar call and the judge says, okay, come back at two, then, you know, maybe we can have an agreement where you stay at your office and you’re kind of on standby for me. And then when I get it, in, an idea from the judge about when we’re going to get reached, I can say, okay, can be here too, but that saves you the hassle of showing up at nine with everybody else, only to hear that you’ve got to you’ve got 3 or 4 hours to kill, and then you’re going to turn around and come back. So that’s another way.

If the attorney wants you to testify, they’re really going to do everything they can to kind of make it smoother, you know, easy for you to kind of get there. And be a part of it if they do want your testimony. So we’ll talk now about how we formally object.

So we’ll talk now if you want to formally object, so your patient isn’t going to consent. In order to formally judge, you have to have certain grounds. So one of them that it would be that this is unduly broad and burdensome. One is that it’s not there’s not a reasonable time to respond. And these are the kind of things. One is the is that it, it embarks on the privilege issue. These are reasons there’s grounds that that allow you, by statute, to object to your subpoena.

So if this exists, you know, what if it says five years worth of client records, okay, that’s probably going to be unduly burdensome. And that’s broad. So, those are just reasons that the big ones kind of that would be the reason for you to go ahead and object.

And then where the process is, is that you have ten days from the time that you’re served with that subpoena to go ahead and either seek your protective order or file a motion to modify, which would be to kind of narrow the scope or to file a motion to quash. And so it’s a very short, that’s a short timeline. Ten days will fly by like that.

And so we suggest that as soon as you get your hands on that subpoena, if you know right away my patient is not going to consent. I know that this that I want to raise my objection. What we suggest is that you go ahead and consult with attorney pretty quickly.

One is that it’s a short time frame for you to respond by a formal objection. The other is that it’s an actual legal motion that has to be drafted. It’s not like the ask form. The subpoena is where you can kind of fill in the blanks and say, okay, here’s my motion and go have it filed at the courthouse. You have to actually have a drafted motion citing your reasons. And attorneys can do that very easily.

And so, we recently actually we gave a seminar last week on the same topic, and we heard from that seminar, there was someone who offered input that she was recently, kind of got involved with a subpoena, and she went ahead and called her malpractice carrier. Malpractice carrier provided her with a free attorney who walked her through the entire process, filed the motion. You know, the judge can still compel after you filed a motion, the judge can still do that. But she kind of had this free resource that she found really, really helpful.

And so if you ever have any questions, if you ever think you’re going to need to object to the subpoena, that’s kind of a good resource I would I would point you to. So that’s if you’ve got, if you’re going to be subpoenaed, if you’re subpoenaed to bring documents or testimony to court, you’ve got this formal motion that you have to file. If you’re subpoenaed to bring documents or testify at a deposition, you can actually submit to that issuing party written objections.

So you can actually just write your list of written objections. Here’s the statute. And this is why I kind of what we want you to have this in your office for, for, you know, you guys. So you know what the law is. You can kind of just listen to written objections and you can send that to the issuing party. Again, the law says it’s another ten day deadline. So it’s kind of something you want to be proactive about and handle fairly quickly.

What that does to you is, the issuing party will receive your written objections. And what that does is kind of kicks it back over to them. Then they have the burden to go ahead and get a court order. So then they’ve got to actually go have a hearing and have the judge say, no, this is important. Despite your written objections, we want this person to go ahead and show up at the deposition and give testimony or bring documents.

So that’s kind of the process for the formal objection. It’s a little bit, you know, if you’re going to be in court, you got to move forward with your formal, actual written motion to quash. If not, if it’s deposition, you have the ability to kind of raise this on your phone. But again, the same ten day time frame for that.

Lisa Angel: Let’s talk a little bit about, what happens if you get there and you’re on the stand and you’ve got the subpoena in front of you, so you raise the privilege issue and you say, “I have privilege, and therefore I’m not going to testify”. And then the judge says, “No, I’ve decided I’m ordering here today that you do testify”.

Then I want to give you a sense just of, what, what are the parameters, what are the things to be looking out for, and just about anything that occurred, once the judge has waived and opened that privilege, just about anything that occurred in your sessions, a lawyer is allowed to ask about. And then each lawyer has the right to raise objections related to hearsay or to relevance, or to, you know, whether or not something is speculative, but the, the lawyers have the right to ask you, and then the judge will make the determination as to whether or not those objections would be sustained or overruled.

One of the really important tips, though, to keep in mind, and it’s really hard to do, especially, when you care about your patient and you’re concerned about their welfare, maybe you’re concerned about the child, is to stick to being the fact witness. Stick to being fact witness is the key consideration because unless you’ve been hired as that expert, you really should not step into that, rabbit hole that they’re going to want you to step in one of the lawyers, then all of your dozen. But one of the lawyers wants you to step into this hole, which is what do you think should happen? Well, what do you know? What do you think about this child? What do you think about this person’s ability to work?

And you don’t have to answer that question. Just because somebody asked you for an opinion doesn’t mean you have to give an opinion. Now, personally, that’s really challenging for me because I like to give opinions. But but, but keep that in your head when you’re up there on the stand.

Okay. So, we talked some about extension of time already, but you have the right to ask for extra time. And as an aside, we’re telling you about your formal objection, your formal, motions that you can file. As a practical matter, a lot of lawyers would be okay if you said, “Hey, I’m, just so you know, I’m not going to give you these documents, their privilege. So do what you need to do”. And there’s plenty of circumstances where a lawyer says, “Okay, fine, you’ve raised the objection and I’m going to go ahead and ask for the court order now”.

It’s not the best course of action, really. Your best course of action is if you have free legal services through your liability insurance, use them. But as a, as a practical matter, you need to find some way, shape, or form to raise the privilege, and you need to know that that has either been waived or the court has ordered you to testify. But that includes your notes, that includes your records. Everything is privileged until either someone consents or the judge orders it. So we can keep saying the same thing over and over, I know.

Okay, separate from this is confidentiality and your ethical duty to maintain confidentiality. So we have been using the word privilege. And that’s because it’s in the statute. And, and that’s that statute that created a shield for you. And the concept is no one would ever tell their therapist anything if they felt like they were going to testify.

And then the court has decided the general, assembly has decided that there are some circumstances where, too bad. But, you have separate from this and I have separate from this agreed, as a result of the license that I have with the, Board of Law Examiners, that I’m going to maintain confidentiality. And so that is a ethics board issue that’s totally separate from that privilege issue. And it’s something that it makes sense to get some help with.

Now, generally speaking, ethics boards allow you to testify when a court orders you to do that. And that’s the way it is for me. Although my ethics board says I have the right to say no to the judge under certain circumstances, that they leave it up to me. But some ethics board say, “No. If a court orders you to testify, you need to do that”.

So having your own sense of what your individual licensing board says on these issues is also a good thing to do. But I just wanted you to have the distinction between, confidentiality really relates to your own license, and privilege is a statutory right that your patient has.

Okay. Now the thing, the slide that we did not have on here, maybe the most important slide, you get the subpoena and then the judge waives the privilege. You’re there all day. How do you get paid? How do you get paid? So this, I want to give you a sense of just some practical tips here.

One is that first, let me tell you what the law is. And the law is very depressing. If you are a fact witness, which most of you are going to be a fact witness, if you were hired to be an expert, then that’s a whole different situation. You’re in fact witness. You got sucked into this. You have the right to go get $5 from the courthouse for your testimony as a fact witness. And I’ve been doing this 20 years. I’ve only gotten that $5 for, two witnesses that asked for it. I went and got it for them. But, don’t give up hope.

So, the the thing that you need to consider is the contract and the agreement that you have with this patient from the very beginning. Now, I hear a lot of, my clients say to me, “Oh, my therapist, I find something in my therapist doesn’t testify. And so that’s in the agreement I signed. So my therapist doesn’t testify and they’re not subject to a subpoena”. And the lawyer hears that and says, “Well, that’s that’s nice, but it’s meaningless because I can issue a subpoena and I can subject you to a subpoena”.

So it’s not a bad idea to say because it maybe it deters people from doing it. Maybe it discourages somebody from doing it. But I think a better course of action for you is to have in your contract the consequences if you get subpoenaed, and the consequences are financial. So you lay out “Okay. Yes. If you do, I don’t want you to subpoena me. I think it’s a bad idea. But if you do do it, here are the consequences. This is my right. If I testify, this is my right. If I do a deposition or whatever you want those, that to be”.

And, then you have a contract that if you wanted to sue that person to collect those fees, you could. And it’s clear from the beginning what the fees are, because a lot of times I, like I just said to a client yesterday, you got to find out what those fees are and go ahead and pay them because I want this person happy when they testify. I want them to like the situation. So. And I want them to be there, and I want them to not give me a hassle, and I want it to go smoothly.

So, but the person had it in their contract already, and so it was very clear. And I didn’t have to argue with my client about what they should or shouldn’t pay. I said, “You signed that contract from the very beginning. They were very clear about what those fees were. And now it’s coming to that point”.

So, in general, that’s a better course of action and everybody’s clear on what’s going to happen. They can decide if they fundamentally if they, you know, don’t want to take that risk. Maybe they decide, you know what? That testimony isn’t worth $1,000 to me or $3,000 to me or whatever it is. So just keep that in mind. That is most likely the better course of action.

Now, if you are the expert witness, and that means you’ve been hired in that capacity, potentially there is a court order about you as an expert witness. And in that court order, there’s going to be, provisions for the fees if there is a court order about expert testimony. I can’t say that with 100% certainty, but most of the time there are provisions about the fees. Who’s going to pay them? What happens if somebody doesn’t pay them and all the consequences?

And then you have things like contempt of court and the judge right there saying, “That’s definitely going to get paid”, but the judge really doesn’t have the authority to force anything to happen related to a fact witness, you need to have that in your contracts. Make sense? Questions

Question from the audience: It can be forced to be a, expert witness?

Lisa Angel: Okay. So the question is, can you be forced to be, an expert witness? Not if you don’t answer the question about what your opinion is. So you say I don’t have an opinion on that. You can always be subpoenaed, and you can always be asked questions, but you are not going to be required to offer an expert testimony.

So if you say, I don’t I don’t have an opinion on that. I don’t have enough resources. I didn’t talk to enough people. I don’t have an opinion on that. “Does this child have ADHD?” “I didn’t, I didn’t test them. I don’t know. “Don’t you have an opinion on whether or not this child has ADHD?” “No, I didn’t do a diagnosis of this child on that. That wasn’t. That wasn’t what I was hired to do. I was hired to talk to the child about their separation and divorce.” No. You back off. Question. Another question? Yes.

Question from the audience: I remember being in court and the attorney tried to get me on a day of court to be expert witness, and I can’t remember if they allowed it or not based on my knowledge of the patient.

Lisa Angel: So the question is the day of court, somebody, a lawyer, was trying to get you to elicit an expert opinion. So they’re trying to do it on the fly and they’re trying to get something for, maybe a low cost there. So so you have right to say, you know, “No, I’m not doing that. I don’t have enough information. I don’t that’s not how I would present expert testimony”.

And if you say no, they’re they’re kind of stuck. If I’m, if I’m going to have expert testimony, I have hired that person in advance. I prep them in advance, and I paid them in advance. So, and then they know what are the parameters? What are they going to be an expert in? What is what are they going to be asked about and not asked about?

And I know that in advance, and they know that in advance, because you’re not an expert in every field, you’re not an expert in every area. Maybe you’re an expert in child, but you’re not an expert in marital therapy or you know, vise versa so that is the better course of action. But somebody was trying to, you know, see what they could get pushed in. And you have the right to push back.

So the question is if you’re an expert does all this happen beforehand? And the better course of action is always to be paid ahead of time and to, have prepped ahead of time so that you know what’s going to happen on the stand. I’ve never had, had hired an expert and not prepped them ahead of time. That, to me, is a disaster. Because I have no idea what they’re going to say. They don’t know what I want them to say. Or, you know what I’m trying to get at?

It takes a long time. I’ve seen it happen in court where it. Everyone’s confused about what the other person’s asking. So you have the right to demand that too where you say, “Look, if you want me involved in this, this is what’s going to happen. I’m you’re going to pay me in advance and we’re going to prep in advance. So I know, generally speaking, what are you going to ask about? What are the issues?”

You know, do you need to know exactly what’s going to happen on cross-examination? Maybe not, but it’s a good idea for you to know what’s an issue so that you’re maybe you read an article ahead of time or maybe you, you know, refresh on some area ahead of time so that you’re not blindsided and you start saying things that you really haven’t, you know, updated yourself about.

How does a court determine whether or not somebody is an expert? Another might be how do you kind of market yourself as an expert, but how how court determine someone is an expert, there is a test associated with that. And fundamentally the test is could you give us more information than we could get otherwise? Could you provide us with helpful information on a certain area?

And there, you know, it would be a little bit more for me to get into, to give you all of the steps that go into eliciting someone as an expert, but it’s it’s not that hard, generally speaking. Sometimes we agree on that so that we don’t have to use court time with it. We, the lawyers, exchange the CV’s in advance and look them over and say, “Okay, but we want to limit it to this topic area”. That’s generally what I try to do, because then I don’t spend my court time on going through someone’s CV.

Sometimes the lawyer will, just submit that CV, let the judge look it over and say, “Okay, I see that this person has enough background in this area that I’m going to say they’re an expert in this, but not an expert in this”.

So and the question is about a criminal complaint, which we have been talking in general about civil. And there are certain, rules that are different related to a criminal subpoena. And, it is the case that in a criminal, any, any information that the prosecution has, they are generally going to be, hopefully, disclosing it to the defense. So that is going to be a normal part of things.

And that, to a certain extent is the case in the civil setting. In the civil setting, when I issue a subpoena, I don’t have to tell the other side I did it in advance, but after it’s been issued, I do need to tell them that I did that. And then I also have to give them the right to review the documents that I received. I don’t have to send them, but I have to give them the right to do it.

So if you have, you know, put up that shield of the privilege it got, you know, shut down because of the court order, you, you’re done at that point. Now, we would contend that HIPAA, would say it’s a good idea to notify the patient that that’s happening and ask for their consent, but you’re you’re done at that point in terms of your obligation. In terms of whether or not to talk to them,  I don’t know, you might want to talk to your ethics boards about like the best way to navigate that. And you also, like I said, there is the resource, of your liability insurance carrier that could help you through it as well.

Okay. So that’s an overview. Wanted to tell you a couple things about us, which is that, we are happy to come to your practices and do lunch and learns. We do this a lot. We can do it on this topic, but we also can do it on alimony, child support, child custody, divorce issues. So feel free to sign up for that. Email us and we’ll we’re happy to do that.

Also, as Debra said, our website is a huge resource. We are constantly updating it. We have videos. We’ll probably have this video up there, as well. We have, all the forms to all the statutes are on there. We have a child support calculator, alimony calculator, attorneys fees calculator. We have a place where people can put in their property, distribute property and, do an asset allocation. So we are adding to it constantly.

We have different levels of service that we provide. One is where clients are trying, if clients are trying to do this on their own, we provide what’s called Rosen Online, where people pay $200 a month. They can stop and start if they want. And through that process, we have a lawyer in our office who answers unlimited questions by email and provides all of the forms and statutes and resources that anyone could need. So if they say, “I need a motion to change venue” and they’re representing themselves in court, we we provide that to them. And then, you know, it enables that client to decide, well, do I need more services or do I not? So I think it’s always a really good resource for people.

We have a forum online where you can post a question, and Lindsay Willis will answer that question online for you. And we also have, we’re always posting different eBooks, one of which is for the absolute divorce process. We have all of the information of how to do an absolutely divorce from beginning to end, on your own. So all lots and lots of resources for people during the process, always adding to it. So definitely consider sending your patients to that. And if you need more books, we’re happy to send that and we’re happy to hang out for questions. But thank you very much for being here.