Social Workers as Expert Witnesses in 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 expert witnesses in such areas as guardianship, forensic issues, child abuse and neglect, commitment hearings, education, and family custody evaluation.
As society gets more specialized and complicated, the courts are using the testimony of expert witnesses 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 Social Work Experts Can Aid the Court
A social worker who is called as an expert witness should be able 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?).
* A thorough analysis of the strengths and weaknesses of the case from many perspectives (e.g., clinical, administrative, managerial, supervisory).
* 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?
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.
When choosing social workers as expert witness, lawyers should look for people with qualifications that will help them accurately identify best practice standards, thus adding credibility to their position or allegations. Remember, social workers’ expertise has limits. For instance, the Massachusetts Supreme Judicial Court recently found in Commonwealth v. Frangipane, 744 NE2d 25 (MA 2001) that a social worker was improperly allowed to testify about memory loss and recovery.
The witness was called to discuss traumatic memory in the context of sexual abuse. She did not review any case records, nor did she assess the alleged victim. Rather, she articulated a phenomenon known as “dissociative memory loss,” using her clinical experience and background of attending seminars on traumatic memory.
The Massachusetts Supreme Court did not take issue with the trial court’s admitting her testimony on child abuse or trauma victim experience, but did find reversible error in allowing her to testify about how traumatic memories are stored and retrieved in the brain, which depended on advanced scientific knowledge of brain function. It held that these were physiological matters about which the social worker was not trained and was not expert.
Generally, witnesses must testify to facts, not opinions. The exception to this rule is for expert witnesses. Indeed, an expert witness is on the witness stand to offer an opinion. For this reason a social worker can be qualified as an expert witness only if she has special knowledge, skill, experience, training, or education.
Attorneys should look for social workers who have real work experience and an academic or theoretical background. They should be prepared to answer such questions as: Have you referred to any articles or books in preparing for this case? Which texts do you consider authoritative? Who are the authoritative authors in this field?
Because a case can be won or lost depending upon how well the expert witness delivers information in court, it is important that the experts can speak with authority and know how to communicate effectively. As soon as the expert witness takes the stand, the judge and jury begin to draw conclusions. So, the stature and appearance of an expert witness is crucial in establishing credibility.
Lawyers should seek effective expert witnesses who understand how a lawsuit unfolds through the pleadings, written discovery, depositions, hearings, and trial. The expert is a more valuable asset when there is an understanding of the overall court process, whether it is in criminal court, civil court, or before an administrative body.
Lawyers should especially seek social workers as expert witnesses whose responses to questions are succinct, and who can communicate confidence, sincerity and professionalism. Social workers as expert witnesses should never volunteer information outside their area of expertise; doing so can quickly weaken their credibility. One primary purpose of opposing legal counsel is to undermine the credibility of the expert witness, which can then nullify their testimony.
The ideal social work expert witness will have significant frontline and administrative experience and come across as someone who is unquestionably neutral. Indeed, many attorneys look for an expert witness who has testified as often for the prosecution as for the defense. The expert should be someone who has not changed jobs frequently, is known and respected in the wider social services community, has written extensively in professional journals, and is able to accurately and clearly summarize complex social work issues.
Social workers who have been trained in the use of objective assessment instruments and techniques which have been empirically validated are especially well-suited to be called as experts.
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 usually higher than for other kinds of preparatory work.
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.
By Daniel Pollack, MSW, JD, Professor at Yeshiva University’s School of Social Work in New York City and
Senior Fellow, Center for Adoption Research, University of Massachusetts Medical School, Worcester, MA
Dan can be contacted at (212) 960-0836