Episode 260 15 Jan, 2025

Therapist Court Prep: What to Say (And Not Say) When Testifying in Court with Tracy Masiello

Therapist court prep, therapist testifying in child custody cases, testifying in court as a witness, what can a therapist say in court, preparing to testify in court

Therapist Court Prep: What to Say (And Not Say) When Testifying in Court with Tracy Masiello

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  • Episode 260 | Therapist Court Prep: What to Say (And Not Say) When Testifying in Court with Tracy Masiello 00:00

Ever had a therapist on your team get subpoenaed and panic? 

As group practice owners, it’s not just about managing our own responsibilities—it’s also about supporting our therapists when they face daunting tasks like preparing to testify in court. In this episode, I sit down with Dr. Tracy Masiello to discuss how to help your team navigate the courtroom with confidence. 

From therapist court prep to understanding what can a therapist say in court, Dr. Masiello shares strategies to ensure you and your team feel prepared and informed.

Whether it’s preparing for a therapist testifying in child custody cases or helping therapists handle other legal scenarios, this episode provides a roadmap for practice owners who want to be proactive and supportive.

Here’s what we cover:

  • The ultimate therapist court prep guide for group practice owners—how to help your team review case files and clinical notes effectively.
  • Common pitfalls therapists face when preparing to testify in court and how you, as the owner, can help them avoid over-explaining or veering into personal opinions.
  • Building confidence in your therapists: Tips for coaching them to stay composed under pressure while testifying in court as a witness.
  • What every group practice owner needs to know about what can a therapist say in court to stay within ethical and professional boundaries.
  • Proactive steps you can take to help your therapist preparing to testify in court, from training to understanding the differences between direct and cross-examinations.

Supporting your therapist court prep doesn’t have to feel overwhelming. With Dr. Masiello’s expert advice, you’ll have the tools to help your team approach court testimony with clarity and confidence.

 

LINKS:

Need extra support? Join The Exchange, a membership community just for group practice owners. 

The Group Practice Exchange Programs + Courses

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The Accountability Equation Book

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Episode 232 | Navigating Subpoenas and Testimony in Mental Health Care with Tracy Masiello

 

CONNECT WITH MAUREEN WERRBACH & THE GROUP PRACTICE EXCHANGE:

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SPONSORS:

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Transcript: Dr. Tracy Masiello

Maureen Werrbach 00:00:00  Hey everyone! Welcome back to another episode of the Group Practice Exchange podcast. Today I have Doctor Tracy Masiello on and she is a counselor, a supervisor, a certified mediator in the Superior and District Court cases, and a court appointed parenting coordinator in District and Family Court. You may recognize her name because she was on the group practice exchange a handful of months ago, and we just had so much fun talking about testifying in court and things related to that. And so today we’re going to talk specifically about just the process of testifying. 

 

Welcome to the Group Practice Exchange podcast where we talk about all things related to group practice ownership. I’m your host, Maureen Werrbach. This episode is sponsored by Therapy Notes. Therapy Notes is my favorite EHR, and it’s one that I’ve been using in my own group practice since 2014. They’ve got everything you need to be successful in your group practice, and they’re constantly making updates and have live support. If you want two free months of therapy notes, go to Therapynotes.com/r/thegrouppracticeexchange.com

 

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Maureen Werrbach 00:02:31  Tracy, thank you for coming back on.

 

Tracy Masiello 00:02:33  Thank you so much for having me. I’m really excited to talk about this, and I really hope that today’s chat is just going to help other therapists feel, you know, a lot more prepared if they ever find themselves on the stand. Yeah.

 

Maureen Werrbach 00:02:44  So to just sort of get us started, I know obviously as a group practice owner and those that are listening, probably most of us have had some amount of experience of being. And this is what our first conversation was about, was like documentation, how to know when or when not to give information out. And like if it’s coming from a judge or coming from an attorney, we did all of that kind of conversation. So if you have questions about that, make sure to look back on the last podcast episode with Tracy. But taking it to the next step, which is testifying specifically. I know it’s a topic that a lot of group practice owners get really nervous about, especially as it relates to the fact that it might be happening to their own employees, clinicians, and the practice.

 

Maureen Werrbach 00:03:25  And they feel like almost like that extra layer of detachment in a way, because it’s not about their clients and their case. So it feels like there’s some ownership without like full control as the clinician. And so I’m interested to hear your initial thoughts about that feeling is maybe normal for practice owners, but like that it’s something that can be managed as a group practice owner. Absolutely.

 

Tracy Masiello 00:03:48  That is a very valid feeling. I think we all have it. Yeah. We do feel like we kind of have some ownership and some protection of our client and of our clients notes and off the records. And so when we’re being asked to share it out into the world where you know, what you testify about or what you share is going to become public knowledge. It’s going to be in a record that other people can access. It’s really intimidating, and we want to be protective and we want to minimize what we share. And that’s actually a good thing. That’s what you should do. We’ll talk more about that in a little chat today.

 

Tracy Masiello 00:04:16  Yeah. But at the same time we have to recognize that we serve an important purpose. And when there is a hearing, oftentimes we do have information that’s valuable to the court. And it can be, you know, helpful to our clients in some cases for us to be able to testify. So we really just have to take that deep breath. Yeah. Focus on what is the goal of this hearing, what is the purpose of it for our client, and then how can we fulfill the need that the court has while also being protective of our client? And that is a delicate balance. It’s a really tough tightrope to walk sometimes. Yeah, but there’s lots of ways to do that. There’s lots of ways to prepare and we can chat about that today if you’d like.

 

Maureen Werrbach 00:04:59  Yeah. So I want to start with the most basic, which is what are some of those common scenarios where a group practice owner or a therapist in a practice might be asked or called to testify?

 

Tracy Masiello 00:05:09  It can sometimes be if, let’s say you have you’re seeing a child client or one of your clinicians is seeing children and there’s a custody dispute.

 

Tracy Masiello 00:05:18  Oftentimes, parents want the therapist to come in and testify about treatment or about what the child has faced or experienced or talked about. And so they want to use that in the custody dispute, usually because they have a position that they’re taking and they’re trying to support or refute that, you know, a specific position. There’s other times, too, that we might have a client who’s involved in a criminal matter. They might have done something. And so, you know, they’re going to treatment. They talk about that. So then the expectations that the therapist will come in and talk about, you know, what is the treatment that the client is receiving. Are they making progress. Some of those types of things. We have some clients who are court ordered into therapy. Reunification therapy comes to mind. That’s typically a court ordered therapy where a family is working with a family, trying to help re-establish a connection between a child and an estranged parent. And in those cases, it’s very common for the therapist to be asked to testify multiple times and give updates to the court as they’re working with that family.

 

Maureen Werrbach 00:06:14  That makes sense and gives a good scope of different scenarios, especially for maybe newer to private practice clinicians who have yet to be asked to testify in court. We’ve had a bunch of different scenarios in my own group practice, so we have a good amount of experience with it just across our practice. We’ve been around for 13 years this year. So I think the more years you’re in private practice, the higher the likelihood that you’ll be asked to testify. What are some of the steps that clinicians can take to prepare themselves? So obviously there’s like one part which is being asked and like the logistics around what to share, what not to share, how to share and all that. But like, what are some things that clinicians can do to prepare themselves for courtroom testimony?

 

Tracy Masiello 00:06:59  Yes. I’m really glad you asked about that preparation piece, because really, that is crucial. You know, we are used to the therapy room and it is a much different space than the courtroom. And I cannot stress enough how much preparation is going to be helpful and important.

 

Tracy Masiello 00:07:15  So first things first is really just to pull out that case file and read through the entire thing. You know, make sure that you are crystal clear on all that timeline of events. So it’s really crucial to review, you know, the file to make sure that you’ve looked at your clinical notes, any assessments that you gave and how they scored. What this is going to do is it’s going to help you stay focused on the facts, but it’s also going to keep you grounded if opposing counsel tries to throw you off with a tricky question, which often they will do.

 

Maureen Werrbach 00:07:46  Yes, that’s actually what I feel like is the most anxiety provoking is I’ve experienced, I have not. Knock on wood. Had to and I don’t. I guess I shouldn’t need to knock because I don’t see clients anymore, but I have not personally had to testify. But as a practice owner, I have had to be with many of my clinicians who’ve had to. And that was my one experience that I always took away was like the anxiety that I experienced observing opposing counsel challenge things that the clinician was saying and how it is.

 

Maureen Werrbach 00:08:17  I don’t want to say like a dance, but like it’s like a you can’t just say what you want to say in a lot of ways, right? You know, there’s a way to sort of communicate and you can’t communicate like from emotion only, which I feel like would be really hard to do. You know, being kind of pushed and being like, you’re not a therapist, you’re actually pushing in a not good way about like the way you’re asking this question. And that happens a lot, obviously, because they’re not mental health professionals. Right.

 

Tracy Masiello 00:08:43  Let me just take a minute, because some of your listeners might not be familiar with the court process. So when you are on the stand, typically there’s going to first be the direct examination. That’s usually going to be the, you know, the attorney who subpoenaed you, who wants you there to be giving certain information. And that really is going to be the easier part of testifying. Yeah. Because again, this is the person who’s called you to testify, and they just want to establish that you’re credible and they’ll basically walk you through all of those key facts of the case that’s going to support their argument.

 

Tracy Masiello 00:09:11  You might say they’re the more friendly of the two, if you will, if you can say that in this situation. So the questions here are usually going to be open ended. Right. It’s going to let you explain your role in the case what your observations are. Talk about your professional background. So they might say something like you know can you describe the therapeutic process that you used with your client or what were your observations during the sessions. So really open ended and just trying to get certain information. My caution here for anybody testifying in direct examination is that you really need to stay factual and don’t drift into opinions or personal judgments. And that can be challenging, especially again because we feel protective of our clients. We want to show them oftentimes in the best light. But this is where you get to really clearly present the facts of your clinical work. And again, the attorneys, you know, going to be more supportive and friendly in tone. But remember that your responsibility as the clinician is to provide that objective information.

 

Tracy Masiello 00:10:10  So he answers you. To be clear, they need to be really concise and they need to be really focused on the clinical facts. So when you’re preparing, when you’re reading through that case file, that’s what you want to be pulling out is those facts. You want to remember how many times did you see them. You know, what interventions did you use? You know, if they had assessments, what were the scores? That’s the information you want to prep so that when you are under direct examination, you can be really clear and really concise. And it’s so important really to avoid over explaining.

 

Maureen Werrbach 00:10:44  That I think would be my issue. I’m autistic. And so a lot of what I’ve experienced with myself is the need to be understood. And sometimes over explaining can come with that. And so I can imagine, neurodivergent or not, this need to want to want to make sure that people really understand and that happening through over explaining.

 

Tracy Masiello 00:11:03  And I think sometimes to just the tone of the courtroom, we feel almost like we’re on trial, even though we’re just there as a witness.

 

Tracy Masiello 00:11:09  And so we feel like we might want to justify our clinical decisions, but don’t do that. Just state them right. An attorney is going to ask you a follow up question if they want more details, but if you offer them more information than they’re asking for, it can just lead to confusion. Or more importantly, it can create those opportunities for the opposing counsel to challenge you during cross-examination.

 

Maureen Werrbach 00:11:33  Yeah, that makes sense.

 

Tracy Masiello 00:11:34  And then I think we talked about this a little bit last time. But the other issue with sharing too much information at any point in testifying is you can end up unintentionally violating HIPAA. Right. So if you’re asked if both parents brought their child to therapy and you say yes, mom brought her five times, dad brought her eight times, you’re answering more than what was asked about. Right? It was just yes or no. Did they bring her? So now you’re disclosing information about treatment that was unnecessary for answering that attorney’s question, and only what they ask about is technically what’s covered by a court subpoena or compelled testimony.

 

Tracy Masiello 00:12:07  So if you give more information than the court needs, right. And what they need is going to be covered by the attorney’s questions. In theory, that puts you at risk of violating your client’s privacy and confidentiality about treatment. So even when you’re under pressure during your testimony, you really want to slow down, listen to the question carefully, and just give the most minimal response that’s going to answer the question.

 

Maureen Werrbach 00:12:31  And my assumption is like if they need more, they will ask a follow up question.

 

Tracy Masiello 00:12:35  Exactly.

 

Maureen Werrbach 00:12:36  Yeah.

 

Tracy Masiello 00:12:37  Right. And also, given that concise answer is going to help keep you from embellishing facts, sometimes we unintentionally want to make ourselves sound really great, or the client sound really great, and we might not accurately present the facts and not intentionally. Not like we’re trying to perjure ourselves or anything like that. But maybe in trying to make what we did sound really well justified or our own nervousness, we might kind of pump up the facts a little bit, kind of give the opposing counsel so much to latch on to during cross-examination.

 

Tracy Masiello 00:13:08  Yeah. So again, when you’re preparing, it’s really important that you really focus on the facts and just the facts. And then the next stage after the direct examination that’s going to come into the cross-examination. The cross-examination is really where things get more challenging. Opposing counsel’s goal is really often just to discredit your testimony, find inconsistencies in what you’ve said. Just like what you were talking about a minute ago. So the types of questions that they’re going to ask is going to be really pointed, right? It’s often going to be ones that can be answered yes or no in nature. So they might not ask about your observation, but they might just say, isn’t it true that your client was non-compliant with your recommendations? Or can you guarantee that your assessment of the client is completely unbiased? So the difference between cross examination and direct is that the questions are often going to be leading. Yep, the attorney is going to try to put words in your mouth. They’re sometimes going to try to get you to agree with how they have now framed the situation.

 

Tracy Masiello 00:14:12  And that can really feel intimidating, because ultimately, their questions are designed to corner you or to make you second guess your answers. So this is again where it’s important as you’re preparing, as you’re testifying. You have to remember you are not there to advocate for your client. You’re not there to take a position in the case. You are just there to stick to the facts. Answer the questions as briefly as possible and really avoid volunteering any extra information. So if you can answer it with yes or no, that’s what you should do, right? Don’t give an explanation unless you’re asked directly for more details. Right. Again, anytime you give additional information, you open up the lines of questioning that might not be in your favor. So if you’re asked, can you say with absolute certainty that this client will not regress? A simple response would be no or no. I cannot make that guarantee. That’s going to be a whole lot safer than launching into an explanation about all the possible outcomes.

 

Maureen Werrbach 00:15:12  Yeah, and I could see that being very hard because it feels like you’re answering, like, not in support of your client in a way for at least for that question.

 

Maureen Werrbach 00:15:20  Right. And you might, with that connection you have with the client, want to show all the ways how that isn’t true.

 

Tracy Masiello 00:15:28  Right, exactly. So my best advice, whether it’s, you know, direct examination but even cross examination. Stay calm. Take your time. Listen to the question. Remember, there’s no rush to answer the questions. It is okay to pause and think before you respond. And as therapists, we’re good at that, right? Remember, this is not a conversation we’re having. We don’t have to respond immediately to keep that flow and that give and take going. Like we would do a normal conversation. This is more like therapy. In this case we’re kind of the client. Yeah. Because As a therapist, we often let a client make a statement, right, and then we just sit in silence. Well, use that tool in the courtroom. They ask a question. We’re going to let it sit, and we’re just going to sit in silence, and we’re going to process, and we’re going to think about what exactly what was asked.

 

Tracy Masiello 00:16:16  And once we’ve thought about what was asked, then we’re going to think about the most concise way to answer that question. You have the fewest words possible. And then we’re going to give our answer. We don’t have a time frame in which we have to answer a question. There’s no timer. There’s no buzzer. So in fact, the longer we take to answer, probably the less questions they will ask because they need to move on. So slow down. Be comfortable with silence. Only instead of being the client who’s processing, it’s going to be you doing the processing and then deciding what you’re going to say next.

 

Maureen Werrbach 00:16:52  To that point. Is there like any specific phrases or language that mental health professionals therapists should avoid using when they’re testifying in court. We heard a lot of what you should and shouldn’t do when you’re testifying, but are there any specific phrases or language that you think of?

 

Tracy Masiello 00:17:09  Yes. Be very careful not to talk about a diagnosis, not to do anything that sounds like you’re being an expert.

 

Tracy Masiello 00:17:17  Okay. So you want to be very careful about that. Now, if they ask a specific thing like, you know, what is the diagnosis on file, you can answer that. But sometimes they will ask, so does this person have PTSD? You know, what are the symptoms of PTSD? You don’t want to answer that question because you’re not there as an expert witness, right? That’s expert testimony where you’re educating the court about the specific disorder. That’s not your role. Your role is a fact witness. When you’re testifying about a client, which is basically what did you see? What did you observe? You know, what did you hear? Only things that you know directly about, again, what interventions did you use? What statements were made directly to you? How many times did they come? Did they pay for their sessions? Those are facts. Yeah. But talking about what are symptoms of a disorder or what are the merits of a certain treatment or intervention that leads into expert testimony or weighing in about whether or not you think a parent is doing a good job of parenting their child.

 

Tracy Masiello 00:18:22  All of those things put you in that role of an expert witness, and now you’re in a dual role relationship. And that’s not what’s covered by your subpoena. And that’s not your role. And that’s out of the scope of what you’re there to do. They will often ask those questions for many different reasons. We don’t have time to go into today. So your answer should just be that I’m here as a fact witness and that goes beyond my scope. Perfect. And just don’t answer it.

 

Maureen Werrbach 00:18:48  Awesome. So my last question I know we’re getting to the end. Here is what advice do you have for therapists who might be being called in in terms of like how they can maintain composure and confidence when they’re testifying again.

 

Tracy Masiello 00:19:03  Know your case inside and out. Yep. But two points I want to make. One is don’t take anything that was not subpoenaed in the courtroom or onto the witness stand with you. Anything that you bring to the witness stand, whether it’s your purse, a briefcase, a file, a post-it note can be scrutinized by the court and used by either side.

 

Tracy Masiello 00:19:21  It can become fair game. Leave everything at your seat. Don’t bring it with you. I recommend never bringing a file into the courtroom if it wasn’t subpoenaed. Because, again, if it’s there, they can try to get that entered into evidence. They can even pull your little post-it note. I’ve literally seen people have purses on the stand, and attorneys see papers and ask to see what those papers were, to see if it was something that they could use in court. If you take it to the stand, it’s fair game. So leave everything behind. You can sometimes take a timeline and it goes out of what we have time to talk about today. But there are ways to craft a timeline that can be helpful. There are ways to craft a timeline that could be harmful, but having a timeline of the facts can sometimes help keep you on track and focus your testimony so that you don’t end up oversharing. And so there are some ways to use that really effectively. And then the other tip I would say is that when you’re testifying something that I recommend doing, and I do this every time I testify, is if I’m asked to elaborate on something from memory.

 

Tracy Masiello 00:20:19  In other words, they’ve not handed me a document, you know, that I can look at, and they’re just asking me to testify something about the client or the case I will always preface my statements with, as I recall, or as I remember it, or from what I remember. I always hedge it. So instead of saying my client missed four sessions with me, if I’m not looking at my notes, I’m going to say, as I recall, my client missed four sessions with me. So now if an attorney, the opposing attorney says, well, actually it was five. Well, I’ve kind of already given that caveat that I’m going from memory and I’m relying on memory. So it has a really different feel. If I just say, you know, they missed four and it was five, now it looks like I’m not credible, right? I as I remember they missed four, but they missed five. I prefaced it and softened it. So I basically have acknowledged that this might not be exactly accurate.

 

Tracy Masiello 00:21:08  So I sometimes will do that every single statement, even if I am 100% sure I do it anyway, because there could be that memory glitch. Or I might think I’m 100% sure I’m actually wrong. And so it might be really annoying to the attorneys, but I do that the whole way through, especially during cross-examination.

 

Maureen Werrbach 00:21:27  You’re also giving and saying this like we’re humans, right? Like we can make mistakes and that that’s okay. And, you know, one way to sort of soften the consequences of maybe not knowing the information or forgetting a piece of the information is by kind of softening it there.

 

Tracy Masiello 00:21:45  Exactly. It just gives less room for an attorney to have that gotcha moment and try to discredit you for not being factual when you really do make an honest mistake. You know, we can’t remember everything. Yeah.

 

Maureen Werrbach 00:21:55  I really appreciate you coming back on. Like I was saying before I hit the record button on this episode, I had done an episode with you a handful of months ago and really was surprised by how much I enjoyed it, because I just had this preconceived thought that talking about testifying, talking about going to court is just it’s a scary thing.

 

Maureen Werrbach 00:22:18  It’s like the feel of talking about it, you know, similar to like HIPAA, it’s like legal and not a fun topic and can be scary. And so I kind of went into it being like, people are going to listen and they’re going to learn, but it’s not going to be like fun information, right? And I had so much fun that I was like, we need to have you on again. It’s just the way you talk about this stuff really eases tension. I even have talking about this kind of stuff. And so I’m just really appreciative that you came back on. I know you have so much knowledge that we it would take dozens and dozens of podcasts episodes to get through it. But I just want to say I appreciate coming on. For those who might want some support. How do you support clinicians in this arena, and then how can they find you if they need that support?

 

Tracy Masiello 00:23:05  Absolutely. So I would say testifying as a clinician doesn’t have to be as daunting if you approach it with that right mindset.

 

Tracy Masiello 00:23:11  If you know what to expect and you have all the little tips and tricks, it’s actually not as scary as it seems in the beginning, because we’re not trying to do this when we’re in graduate school, right? You just hear about it and it is legal, and there are big implications that it has for us ethically and our license and just a lot of different things. So if somebody is unsure about how to handle a subpoena or a court testimony or just wants to be prepared for that when not if that they’re ever subpoenaed or asked to testify. I actually created a course. It is approved for continuing education credit by NBCC. It’s called May it please the court clinician subpoenas and testimony.

 

Maureen Werrbach 00:23:50  I love that title.

 

Tracy Masiello 00:23:52  It’s really just a step by step course that goes through the entire process from when that subpoenas first handed to you all the way to leaving the witness stand. And you’re done. So it handles everything. And I also have a free guide on tips for handling a subpoena and one for testifying.

 

Tracy Masiello 00:24:09  So you can find all of that on my online course website which is Resolution Academy. Com. You can also find me through my group practice which is reaching resolution PLLC in Charlotte, North Carolina. And I’m always happy to chat and just help clinicians feel prepared because this is really an important aspect of our work. And so I am always willing to help and share knowledge however I can.

 

Maureen Werrbach 00:24:33  Thank you so much. We’ll make sure to put all of those pieces of information in our show notes too for those listening. And again, I appreciate you coming on a second time.

 

Tracy Masiello 00:24:41  Thank you so much for having me. As always, it’s been a pleasure and just so much fun talking with you.

 

Maureen Werrbach 00:24:46  Thanks for listening. Give us five stars on whatever podcast streaming service you use. And I’ll see you next week.

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Resources

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