Nancy Davis, Ph.D.
Joseph R. Davis, Esq.

Professionals who work with children and adolescents quickly discover that child abuse is a common cause of dysfunction in children. These professionals readily accept that becoming familiar with the symptoms and treatment of child abuse is necessary to be a competent child therapist. In recent years it has become clear that a working knowledge of the ground rules for interacting with the legal system is also a critical dimension for health care professionals working in this area.

Preliminary Observations:

It is probably fair to say that most health professionals would prefer to stay as far away as possible from legal proceedings regarding their cases. This is hardly surprising given the fact that the legal dialog seems designed to confuse, the parties are often hostile or emotional, and the proceedings themselves are unfamiliar and confrontational. Add to that the fact that the legal system often appears to have precious little concern for the time and inconvenience of necessary witnesses. All things considered, legal proceedings are not the kinds of affairs to which one could be expected to seek an invitation!

The purpose of this article is not to convince that you should relish such opportunities, but rather to make the terms and proceeding a little less intimidating and, hopefully, to encourage additional efforts to educate yourself regarding the rules and procedures in your particular jurisdiction.

Child abuse allegations may arise from a multitude of situations, and surface in a variety of legal proceedings. For example they may first come to light in the course of counseling sessions with children experiencing emotional difficulties, medical examinations, and child custody proceedings related to divorces or separations, or a myriad other ways. Child abuse allegations may become the subject of criminal investigations and prosecutions, civil suits for recovery of damages, and/or domestic relations proceedings.

Frequently, parties to these actions, usually acting through their attorneys, will decide that information, testimony or records of a health professional would be useful to resolution of the case. In this situation there are strong and, in many cases, valid, competing interests which must be weighed to determine whether such information is properly disc losable at all, if so, what kinds of information are properly disc losable, to whom it should be provided, and when it is appropriate to do so.

Every state and the federal courts have statutes and court-issued rules of procedure which govern the process of making requests for information from parties and potential witnesses, and the general categories of such information which are available ("discoverable"). However, these rules often are not the full story. The rules of "privilege", (including the doctor/patient and therapist/client privileges) in a particular jurisdiction are not in all cases reduced to statute or regulation. These privileges have their foundation in principles drawn from the English "common law" which form the basis of much of our state law, but are often modified by state statute. These rules and statutes are interpreted and refined by scores of court decisions in each jurisdiction. This court-made law is just as binding as the statutes and court rules, but much harder for a layman, and sometimes even lawyers, to know and apply to a particular case. This circumstance, coupled with the adversarial nature of our court system, explains, in part, why the rules often seem so elusive and unclear.

Despite this, in every state and in federal court, the court rules provide that the parties to the legal proceedings, through their attorneys, are expected to conduct much of the pre-trial discovery of information with a minimum of court supervision. The court is generally becomes involved only when there is a dispute between the parties as to the allowable scope of discovery, or if a non-party resists the requested disclosure.

There are four primary factors which control the type and degree of disclosure which may be required by a health care professional: (1) the type of legal proceeding (i.e., criminal, civil); (2) the parties to the proceeding (that is, who has filed the suit and who is being sued or prosecuted) (3) the stage of the proceeding, and (4) the relationship between the parties, and between the parties and the witnesses. Each of these is briefly addressed below.

The Nature of the Proceeding. Legal proceeding may broadly divide into two major categories: criminal and civil. In criminal cases, some governmental entity, (county, state or federal government) is seeking to charge an individual with violation of a criminal statute. Criminal matters generally will be titled ("styled" in legal terminology) as: "State of Maryland vs. Johnny Jones", or "Commonwealth v. Baker".

Civil matters, on the other hand, are generally disputes between two or more private parties, in which one party (the plaintiff) seeks money damages or a court order to compel or to protect against some action by the other party (the defendant). Titles of civil matters will normally have the names of the two private parties, e.g., Debbie Delong v. Henry Delong, or if a minor is a party, "Julie Jones, a minor, by her next friend, Sandy Shallot v. Damon Kalot". Juvenile or domestic relations proceeding may be styled "In the Matter of Susan X" or similar terminology.

If you receive a document related to a legal proceeding, it should have the names of the parties and the name of the court in which the proceeding is pending. The name of the court may or may not helpful in identifying the type of case, as many state trial courts handle both civil and criminal matters, and even juvenile and domestic relations cases.

Nancy Davis is a therapist who specializes in treating trauma and abuse. She has testified as an expert witness in over 130 legal proceedings. Dr. Davis is the primary author and the practical advice about dealing with the system reflects her views.

Joseph R. Davis retired as Chief Counsel of the FBI in 1994, has served as legal counsel to a Congressional committee and now works as a compliance officer. He is licensed to practice law in Florida, Alabama, Virginia and the District of Columbia. He assisted in the description of legal procedures and principles.

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