This Just In
Frequently asked questions about social workers as expert witnesses
Q1. What is a social work expert witness?
A1. Social work expert witnessing services are used extensively by lawyers to assist in the presentation and resolution of lawsuits. The requirements for an expert witness include appropriate qualifications, courtroom experience, communication skills, and the ability to understand the needs of a client.
Q2. How is the opinion of a social work expert witness discredited?
A2. There are three ways to discredit an expert witness: First, the expert’s credentials, knowledge, or experience can be attacked. Second, the premise of the expert’s opinion can be attached. For instance, the literature or testing instruments themselves are flawed. Third, the expert’s conclusions can be attacked. Why couldn’t the expert come up with other possibly explanations?
Q3. Is there a standard by which a social work expert witness must testify?
A3. Two U.S. Supreme Court cases and a change in Rule 702 of the Federal Rules of Evidence changed the way in which expert witnesses can testify in federal court. In 1993 the Court decided Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579. Since that decision, the lower courts have conflicted on whether the “factors” used in Daubert were applicable to all expert testimony. Daubert gave a non-exclusive checklist of factors for trial courts to be used in assessing the reliability of scientific expert testimony:
Can the experts’ theory or technique be tested or has it been tested? In other words, can the expert’s theory be challenged in some objective sense, or is it instead simply a subjective approach that cannot be assessed for reliability?
* Has the technique or theory used by the expert witness been subject to peer review and publication?
* Do we know what the potential rate of error of the technique or theory is when applied?
* Has the technique or theory been generally accepted in the scientific community?
Q4. Does the Daubert decision apply to non-scientific evidence?
A4. The U.S. Supreme Court in its decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), affirmed that the Daubert factors were to be considered for all experts, not just scientific experts. The court said that Daubert wasn’t to be applied mechanically but rather that the reliability and methodological requirements of Daubert were essential to any determination of admissibility of expert evidence. Futhermore, Kumho held that these factors might also be applicable in assessing the reliability of non-scientific expert testimony, depending upon “the particular circumstances of the particular case at issue.“
Q5. How do state courts differ from the federal court system?
A5. State court requirements, of course, vary by state and jurisdiction. Except for Georgia, Kansas, Massachusetts, and New York most states have rules of evidence very similar to the Federal Rule of Evidence No. 702 that was in effect prior to December 2000.
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Social workers as expert witnesses in family and child welfare cases
Lawyers are increasingly calling upon social workers to serve as expert witnesses in cases involving children and families. Roles for social workers are emerging in the courtroom as social work expert witnesses in such areas as guardianship, forensic issues, child abuse and neglect, wrongful death, commitment hearings, education, family custody evaluation, child welfare, adoption, and foster care.
As society gets more specialized and complicated, the courts are using the testimony of expert witnesses (such as social work expert witness, foster care expert witness, social worker malpractice and child welfare worker malpractice) to help resolve cases. Whether defending social workers or agencies, or litigating on behalf of a client, having the right experienced expert witness can make the difference between winning or losing an important case.
How a social work expert witness can aid the court
A social worker who is called as an expert witness may be asked to provide:
- An in-depth analysis of the events and issues in question. For instance, in many states social workers are permitted to make diagnostic assessments.
- A thorough analysis of the procedures, policies and practices used by the social workers and agency to determine their appropriateness, legality, and conformity with current practice (e.g., were child abuse investigation procedures appropriately carried out?).
- Reviewing pertinent documents, evaluating their findings, and developing conclusions regarding the evidence.
- Trial preparation and assistance during the discovery and trial phases.
- A familiarity with relevant and applicable case law.
- Testimony which is ethical, accurate and persuasive. Contrary to popular myth, expert witnesses are sworn to be completely truthful—they cannot ‘fudge.‘ It is important to remember that they are not advocates; their primary duty is to the court, not to the person who retained the expert.
- Special qualifications to testify in a specific case (i.e., Does the witness have any unique publications regarding the issues at bar? Does the witness demonstrate any bias for the plaintiff or defendant? Does the witness offer previous testifying experience? For whom? Which specific cases?
Assessing qualifications for a social work expert witness
Who can be an expert witness and what is required to become an expert witness? Expert witnesses are usually expert consultants who testify under oath about the specifics of a case. They relate their conclusions and opinions about the actions in question. More than ever, social work issues in litigation require the services of expert witnesses. Experts are needed to inform judges and juries on technical matters and national standards of care for human services issues related to the cases brought before them. Choosing a social work expert witness requires critical evaluations of numerous features beyond obvious credentials. When choosing social workers as expert witnesses lawyers should look for people with qualifications that will help them accurately identify best practice standards, thus adding credibility to their position or allegations.
Costs for retaining a social work expert witness
The cost of retaining social workers can vary considerably. They are usually paid by the hour. The hourly fee typically covers reviewing documents, interviewing key people in the case, travel expenses, and any other time spent working on the case. Rates for being deposed or testifying in court are higher than for other kinds of preparatory work.
Conclusion
The growing use of social workers as expert witness will likely continue. Social workers who serve in this role will play an important part in litigation and dispute resolution. Retaining a social work expert witness will not necessarily result in a victory in the courtroom. A credible expert witness, however, can offer invaluable information that can be used to present a more comprehensive case.
For additional information, contact , MSW, JD.
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Human services and law: Integrally connected
We look to courts a lot these days. It seems that not a single day goes by when courts are not featured on the national newscast. By habit—and, one hopes, still with awe—we cling to courts as a last refuge for justice. Perhaps we grasp too tightly. Courts cannot solve our problems for us. Most often, they mediate interpretations of our own indecisiveness. This is especially true regarding human services. We turn to courts to deal with one social problem after another: abortion, child and elder abuse, involuntary electroshock treatment, stalking, battered women, repressed memory, parental kidnapping. And the list goes on.
The language lawyers use is a major obstacle, keeping human services workers and lawyers from understanding one another. This column attempts to bridge the language gap. Though language may define our experiences for purposes of general thought and communication, law codifies our experiences for legal purposes. It assumes a complex set of relationships to which individuals must adjust. The nuances of law are explained and illuminated by each unique lawsuit. But the core meaning of law is derived from a previous consensus based upon generalizing, abstracting, and categorizing. Sadly, by dividing society into discrete statutes and court opinions, there is a loss of continuity. The stitching of legislative codes is not as seamless as a legislator ever imagines.
Traditionally, law and human services do not have a common communications meeting ground. One leans toward arcane written exactitude, the other to speech that is emotional and intuitive. Law distinguishes only between legal and illegal, rather than between acceptable and unacceptable, or better and best. It consciously does not make distinctions except where society wants a legal separation. The subject matter common to both—social justice—is forcing them to work together on behalf of the same clients. To do this effectively, the professionals of each discipline must quickly learn to understand the language of the other.
Perhaps we don’t realize how much law affects human services and human services workers. As human services becomes ever more complex, law is inevitably implicated. The importance of human services workers being acquainted with legal concepts cannot be understated. The more you understand how critical legal reasoning works, the better equipped you will be to distinguish between policy and practice considerations, and the less often lawyers will make decisions for you that you could readily make yourself.
Prior to being able to communicate effectively with lawyers and legislators, it is necessary to have some knowledge and appreciation of how the legal system works. This column hopes to introduce you to the fascinating world of critical legal thinking and how that thinking has recently been applied to real-life human services situations.
Perhaps we think of law as very orderly and human services as not so orderly. The merits of this hypothesis will not be debated here. What does seem to be clear is that law is bringing an orderliness of language to certain areas of human services, welcome or not. At a time when human services is being greatly influenced by law and the lines between them may be blurring, the imprint of a more rigorous language may be beneficial for human service professionals, and the knowledge that certain legal categories exist on paper but not in reality may help lawyers realize that achieving social order and social justice is not so easily done.
Our disciplines are not as insular as they once were. Pride of profession may lead to a perception of the client as fitting into either law or human services. This is a mistake. If the disciplines are perceived as too discrete from each other, the gap between them is apt to be exaggerated for the sake of self-definition, and distrust and suspicion will only grow.
is likely seen by human services workers as a set of elaborate statutes, saturated with directives pertaining to the minutest aspects of life—all written in a foreign language. In fact, law is a process, just like human services. There is a blending and an overlap between law and human services that should be celebrated, not disdained. For the sake of our mutual clients, we need to work flexibly with each other. Far from losing the unique identity of each profession, it is likely that each will grow richer, and a deeper appreciation of ourselves and our clients will follow.
The above essay is excerpted from Social Work and the Courts (Brunner-Routledge, 2003)
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Being Deposed
Given the increase in litigation against human service agencies, administrators and staff need to be aware of the process and what might be expected of them. One they may encounter is a deposition. With out proper preparation, it can be an unsettling experience.
A deposition is a sworn oral or written statement or testimony requested of a witness who may be unable or unavailable to appear in court, due to illness or limitations on the court’s jurisdiction. It usually takes place after a suit is filed, although it may be done prior if it would “prevent a failure or delay of justice” (Federal Rules of Civil Procedure).
Any situation that prompts a lawsuit to be filed can also cause a worker to be deposed. Examples include allegations of improper conduct in an abuse investigation, sexual harassment in the counseling setting, employment discrimination, a breach of confidentiality, or a failure to property follow mandated agency procedures.
* When a deposition is taken in anticipation of its use at trial, it has several advantages:
* The person being deposed (deponent) relates knowledge close to the time of events in question, thereby minimizing concerns about faulty memory;
pocket watch* Based on the deponent’s testimony, additional evidence may be required or prove unnecessary;
* The element of surprise can be avoided;
* Both sides can evaluate the demeanor, believability, and emotional tenor of the witness.
There are also disadvantages:
* Depositions are expensive to conduct. The cost of attorneys, stenographers, and reduction to print mount quickly;
* A deponent may feel compelled to be adversarial rather then fully open and forthcoming;
* If the matter does come to trial, there may be a lack of spontaneity. Witnesses may become rigid in their recollection and description of events.
At a deposition, deponents swear or affirm before someone authorized to administer oaths that the testimony they are about to give is truthful. Often the stenographer who records the testimony will administer the oath. The deposition also may be done in writing (called and “interrogatory”) or by videotape.
Various kinds of questioning may take place, depending upon whether the witness is “hostile” or “friendly.” Witnesses retain certain “privileges,” including attorney-client privilege (depending on the state). Therefore, the worker’s attorney may object to certain questions being posed by the opposing side.
The deponent reviews and signs the deposition - usually before a notary - after it has been transcribed. This will ensure that the stenographer accurately recorded what was said and did not substantively change, clarify, or “fix” the testimony.
Only a small percentage of human services workers are ever deposed, but the potential is always there. If you are called as a witness to give a deposition, your attorney should thoroughly prepare you beforehand. Your familiarity and comfort with the process will make you credible and convincing witness.
The above article appeared in Policy & Practice, 62(3), 26.
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