December 2018

Are You Prepared for Subpoena and Court Testimony?

By Daniel DeCino, Ph.D., and Phillip L. Waalkes, Ph.D.
Being subpoenaed and testifying in court on behalf of students are two experiences school counselors usually like to avoid. Anxiety, confusion and general uncertainty are emotions most school counselors experience when they are unexpectedly subpoenaed and eventually testify in court. Consider: if you receive a subpoenaed at school and eventually testify in court, will you be prepared?
 
We recently studied school counselors’ experiences of being subpoenaed and testifying in court. We knew of several colleagues who had these experiences, so we wanted to hear their stories and others’ and gather takeaways to share with school counselors. We interviewed school counselors in several states and asked them to share the most significant memories of their legal experiences.
 
Most school counselors we spoke to were served at work or in other personal locations. They almost always felt surprised as a sheriff or other court certified person handed them a subpoena. If the case made it to court, typically only a month to two weeks passed between the subpoena and court date. Most school counselors reported feeling out of sorts and nervous in the unfamiliar courtroom location and situation. School counselors shared that being on the stand felt like it lasted an eternity, yet in actuality averaged between 10 and 20 minutes. After testifying, school counselors usually returned to their workplace, debriefed with a colleague or with other trusted individuals, and went back to work. The school counselors who participated in this study offered several helpful suggestions for other school counselors.
 
We share the takeaways from our study here to help you be better prepared if and when you receive a subpoena and testify in court. Most of these are recommendations to use before a subpoena is delivered rather than after one arrives.
  • Keep a copy of the ASCA ethical standards nearby and consult them regarding what to do if legal issues arise.
  • Have a copy of an ethical decision-making model. The STEPS model (found in “School Counseling Principles: Ethics and Law,” fourth edition, by Carolyn Stone, Ed.D.) can be a useful tool to help you sort through your options and make rational and informed decisions moving forward. Several other models are available online for school counselors to use for ethical decision making.
  • Utilize local, regional and national professional support services. Consider consulting with ASCA, state associations and other local resources in the event of a subpoena and eventual courtroom appearance. These organizations may have suggestions that may not be otherwise available to you in your area. ASCA has several useful blog posts and other information school counselors can consult.
  • Request that your school district and state organizations offer professional development on laws pertaining to school counselors in schools and your legal options if you are subpoenaed and appear in court. Professional development opportunities on legal issues pertaining to educators also would be a great way to stay connected and engaged with others on what is typically an intimidating topic.
  • If you have district or school legal counsel, obtain their contact information and engage proactively in conversations with them. This may help alleviate confusion if you need to contact them and have some of your legal questions answered. 
  • Engage in conversations with your administration about what to do if you are subpoenaed and testify in court. If administration is unsure, take this opportunity to schedule a meeting and help develop a legal preparedness protocol – this could assist school counselors throughout your district. Developing a strategic plan with administration promotes better communication and stronger relationships
  • Have a colleague ready to support you if and when you are subpoenaed and testify in court. Setting up another school counselor who can cover your duties in the event you are subpoenaed and testify in court may be an invaluable resource and support system. Other school counselors understand the severity of the legal issue at hand, understand elements of confidentiality pertaining to the situation, and can support you while you navigate unfamiliar territory.
  • Finally, find a school counselor who has had experience with subpoena and court testimony. Ask them to share what they learned, what they would do differently, and if they would be willing to mentor you on these topics. Leaning on the wisdom of others can be a vital and useful resource for school counselors who have yet to be subpoenaed.
Being subpoenaed and testifying in court can be an intense experience. Preparing yourself for such experiences will equip you with knowledge and support to face a situation that is potentially disruptive.
 
Daniel A. DeCino, Ph.D., is an assistant professor of counseling and psychology in education with the University of South Dakota in Vermillion. Contact him at daniel.decino@usd.edu. Phillip L. Waalkes, Ph.D., is an assistant professor of counseling with the University of Missouri, St. Louis.