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COMMENTARY
How Much Weight Does a Social Worker's
Opinion Carry in Court?
Elisa Reiter and Daniel Pollack ｜ October 10, 2021
How much weight a social worker’s opinion carries in court depends
upon if the social worker is an expert witness, a lay witness, or a
character witness. It also depends upon if the case is a criminal, civil, or
administrative matter.
In the Benchbook in the Behavioral Sciences, written as a guide to judges
and litigators, the authors write:
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When the behavioral sciences are limited to the empirical world, and
based upon only those hypotheses that have properly grown out of the
methodology of science, then they have immediate utility to legal
decision making. When the behavioral sciences stray from the
methodology of science, their spokesmen are no more valuable to law,
than the telephone psychic hotline.
Let’s suppose that parents decide to become involved in growing and
selling marijuana. That activity may be perfectly legal in California or
Colorado, but not in Texas. Presume that:
• Parents wrap 1,200 pounds of marijuana in trash bags — taped, with a
layer of baby powder between the trash bags holding the marijuana, and
an outer layer of trash bags;
• The trash bags, heavy with marijuana, are packed into a truck,
interspersed with the many toys and games;
• The parents transport their minor children in a truck used to haul this
illicit cargo to Texas or to New York (jurisdictions where growing and
distributing marijuana remains illegal);
• The parents are pulled over for a routine traffic stop;
• The drugs are found in the course of that routine stop; and
• CPS workers, advised by police officers at the scene that a massive amount
of marijuana was discovered by drug sniffing dogs, are called to remove
the children from the parents at the scene of the arrest.
There are a variety of issues that flow from this fact situation. The CPS
social workers could prove a valuable asset in presenting testimony
about their observations at the scene of the arrest regarding the
appearance of the children, the excited utterances of their parents, how
the parents reacted to their arrest and separation from their young
children, and how the children might have reacted when first presented
to grandparents as a potential kinship placement alternative. In general,
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social workers can provide valuable testimony in civil, criminal and
administrative matters.
How can social workers prepare for court? Assume there is an allegation
of sexual abuse or an outcry made to a social worker by a child. Bill
Eddy suggests that the social worker who receives such an outcry should
maintain an open mind (a willing suspension of belief), and explore all
theories, including:
• Pre-existing abuse;
• Divorce related abuse;
• Sincere but false allegations;
• Intentionally false allegations;
• Sexual abuse by someone else;
• All pertinent scenarios.
In family law matters, judges must have the agility of an acrobat on a
high wire, balancing immediate concerns about the physical and
emotional well-being of the children against a thorough, unbiased child
custody evaluation. Like any other witness, social workers must
understand that they need to:
1. Tell the truth.
2. Answer the question asked.
3. Refrain from volunteering extraneous information.
4. State their inability to understand a given question.
5. If a compound or multifarious question is asked, containing multiple
parts, learning to ask which question the attorney wants answered first.
6. Answer simply with “yes,” “no,” or “I don’t know,” if possible, and wait for
the attorneys to follow up with additional questions.
7. Stop talking if an objection is raised, and wait for the judge to rule.
8. Be concrete, in notes and in testimony. For instance, rather than
observing that a parent appeared to be “high”, the social worker should
note that the parent had an irregular gait, held on to the hallway wall for
support, had bloodshot eyes and slurred speech, and that the parent had
difficulty remembering the last time they saw their child.
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Regarding appearing in court, even if remotely, social workers must
remember to:
• Dress appropriately. First impressions count.
• Speak up. The court cannot consider what is not heard.
• Be professional. Do not argue with the judge or counsel.
• Review your notes in advance of the hearing. Be able to discuss vital
statistics in your case. A termination or disability case may have taken
years to get to trial.
• Know your flaws. The attorney “backing you” will want to know if there is
a problem or issue in the case prior to trial rather than learning of that
issue during trial.
• Practice. Social workers are often overworked and underpaid.
Nonetheless, they must make time to practice to be prepared for court.
Attorneys presenting social workers as witnesses must present the
witness’ qualifications. “Even if the social worker is not qualified as an
expert, he or she will emerge as more credible or knowledgeable than a
lay witness.” Social workers present to gatekeeping judges with
distinctive viewpoints:
Social work’s unique perspective entails explicit, simultaneous focus on
environmental and structural phenomena that often exacerbate mental
health challenges faced by lawyers’ clients, such as poverty,
unemployment, homelessness, substandard housing, environmental
threats, poor health, and neighborhood violence, among others. Also,
social work is the only human services profession whose national code of
ethics (National Association of Social Workers) highlights the
profession’s particular concern for people who are oppressed and living
in poverty, along with related social justice issues.
Social workers can assure due process of law – or not. In a recent Alaska
Supreme Court opinion, a case involving termination of parental rights
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was reversed and remanded, in part because an inadequate foundation
was laid as to the qualifications of a social worker witness. Cora G. v.
Alaska Dep’t of Health & Social Servs., 461 P.3d 1265, 1283 (Alaska
2020) A while ago, Barton Bernstein wrote that “The social worker has
tools of investigation available to gather and interpret data meaningfully
for the benefit of judge, jury, and clients.”
In a recent administrative case, a plaintiff appealed from her denied
application for Supplemental Security Income. One of her contentions
was that the Administrative Law Judge (“ALJ”) “improperly evaluated the
opinion from Plaintiff’s treating mental health therapist,” who was a
social worker. The court reasoned that the “ALJ afforded … [the plaintiff’s
social worker’s] opinion “partial weight” or “little weight,” noting that a
“social worker is not an acceptable medical source…” The court held:
“However, the ALJ should consider information from ‘other sources,’
such as social workers, which ‘may also help . . . to understand how [the
claimant's] impairment affects [her] ability to work.” Krach v. Comm’r of
Soc. Sec., quoting 20 C.F.R. § 404.1513(e)). Although the ALJ is “free to
decide that the opinions from ‘other sources’ . . . are entitled to no or
little weight, those decisions should be explained.” Piatt, 80 F. Supp. 3d at
493 (quoting another source). Furthermore, an ALJ may not disregard a
medical opinion solely because the opinion is from a nonmedical
source. Allen v. Comm’r of Soc. Sec. As with a treating physician, “[t]he
amount of weight to give such opinions is based in part on the examining
and treatment relationship, length and frequency of the examinations,
the extent of relevant evidence given to support the opinion, and
consistency with the record as a whole.” Williams v. Colvin.”
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Whenever social workers are called to the witness stand, they will be
thoroughly scrutinized. The judge, attorneys, and jury will examine
microscopically everything that is said. Appreciating the appropriate
procedure and demeanor of a courtroom can give added weight to any
social worker’s opinion.
Elisa Reiter is an attorney, Board Certified in Family Law and Child
Welfare Law by the Texas Board of Legal Specialization.
Contact: ereiter@uplawtx.com.
Daniel Pollack is an attorney and professor at Yeshiva University’s School
of Social Work in New York City. Contact: dpollack@yu.edu.