Transcript

PATRICK CASALE: Hey, everyone. Welcome back to All Things Private Practice. I’m joined today, again, by Dr. Brittany Bate, who is a licensed psychologist, private practice strategy coach, and the founder of Be BOLD Psychology and Consulting, a North Carolina-based primarily telehealth group practice offering LGBTQIA+ celebratory neuroaffirming and trauma-informed care. Her team specializes in individual, couples, family, and group therapy, as well as the psychological evaluations, court-ordered assessments, and forensic evaluations and services.

Brittany also owns Bold Practice Builders, where she helps therapists or practice owners build values-aligned, efficient, and profitable businesses through trainings, masterminds, and done-for-you customizable templates and resources. Damn, I’m surprised I didn’t stumble through any of that.

As a self-proclaimed group therapy enthusiast and jury research nerd, Brittany combines real world self-experience with research-backed best practices, especially when it comes to ethical testimony and witness preparation.

As a queer cisgender woman with ADHD, Brittany is also deeply committed to uplifting other LGBTQIA+ and neurodivergent professionals as they build bold, affirming businesses of their own.

Brittany also just got done speaking at my summit in Scotland. So, you really need to add international speaker to your bio.

BRITTANY BATE: I do. I do. I have to get that one added in.

PATRICK CASALE: Well, welcome back. I know today you want to talk about just kind of how to handle the courtroom and the potential process that comes with it. I know that when therapists receive those letters in the mail, panic immediately starts to sink in, and understandably so.

BRITTANY BATE: Yes. And to be fair, it does for me still, too. But luckily, I have my systems in place, and I have a process down to a T so I know exactly what to do, which helps to lower the anxiety. And that’s, you know, what I’m hoping to give some people some tips on today.

PATRICK CASALE: Love that. Yeah, I could have used that a few years ago when I found myself in a very messy situation that way. And you kind of go into this panic mode, you know? I know for me, it was the only subpoena I ever received in private practice, and it was right before my second throat surgery. And I was trying to explain that to the lawyer, like, “I can’t be in court, like I’m going to be in surgery. And I’m going to have recovery time.” And they’re like, “Yeah, you have to come in.” And I was just like, “Yeah, I’m not doing this.”

And that was really kind of where I stood. I talked to my malpractice, and that was kind of it. And I was like, “I guess we’re just going to see what happens.” And I don’t think that was like the best strategy in the world.

BRITTANY BATE: Well, I think you talked to your malpractice, though, that is always something I say. I still, to this day, call my malpractice insurance and do a free risk management consult every single time, even though I know that what I’m doing is what I’m supposed to be doing. But it’s good risk management. And it’s just good to remind yourself and give yourself a moment to breathe so that you don’t respond immediately as well.

PATRICK CASALE: I think that’s what people fall into, is like, “I want to get this off my plate immediately. I have all these other tasks. I don’t have time for this. I don’t know what to do.” You’ll see a lot of people, like, put out into the Facebook groups, asking questions, getting a lot of bad probably, like, not best practice advice and support.

So, it’s good to know that people like you exist because you can walk the walk, because you’ve done it. You’ve lived that life. You’ve worked in that field. I mean, I think that’s really important when we’re talking about forensics, when we’re talking about dealing with juries, when we’re talking about subpoenas. Like, we should not be just taking advice from anybody.

BRITTANY BATE: No, absolutely not. And there is so much bad advice. Sometimes I just spend, I don’t know, too much time in those groups and just responding to every comment that is poor advice nicely and just saying, “Actually, a friendly reminder.”

And it is so mortifying to me when I see that. And I know that most people don’t get taught this stuff in grad school. We got taught a good amount of this because we were an incredibly forensic-focused practice. And my pre-doctoral internship was in a federal prison. They’re [INDISCERNIBLE 00:05:01] doing evaluations. So, I had a unique experience. But most people do not.

And so, I understand that we don’t know what we don’t know, but it can really cause clinicians some troubles if we’re just kind of following blind advice.

PATRICK CASALE: Yeah, and that happens way too often, not just with this subject, but that’s a conversation for another day. I don’t know how you do it. I could not do that. I would not be able to pick every single one of those comments apart. I just look at it. I chuckled at myself. I’m like, “Jesus Christ.”

So, wherever you want to start. You’re the expert on this. Like, I’m happy to be a fly on the wall for this. So, tell me and the audience, like, okay, how do we start to core proof our practice in a way that we can at least feel a little bit more confident and comfortable?

BRITTANY BATE: Yeah, so where I always like to start is talking about how offense is the best defense. And I really think about two primary things with this.

The first part is having your paperwork prepared in a way that’s going to protect you ahead of time. So, with that, I also think of two main things. I think about consent-related issues and scope of practice. So, making sure that we have a scope of practice statement in our informed consent that talks about what we can and can’t do.

So, for the people who are offering therapy, for instance, your scope of practice is to assess and treat mental health issues or mental health disorders in theory. And obviously, we do a lot more than that. But what we don’t do is evaluations in the context of therapy. We are not evaluating for a person’s parental capacity. We are not evaluating for their child custody. We are not evaluating for reunification therapy unless we are a reunification therapist, and that is our specialized training. So, I think having a scope of practice is really important.

And then, knowing the informed consent laws in your specific state, especially for minors, and deciding what you want to do at your practice. Also, there’s a lot of conversations around, you know, can a 16-year-old consent? Or can we get one parent consents?

And in some states, yes, you can. And that can get a little bit tricky down the way when another parent finds out, or the parent revokes consent, or the parent wants to just cause trouble with your license because you did not get consent from them. So, getting really clear about how you want to handle consent for parents and minors.

At our practice, we have it in our informed consent and in our background form that we require any parent or guardian who has legal custody to sign our consent forms. We do not have to do an intake with all of the parents or guardians, that is up to them. They can choose to do an intake with us and pay for it on their own. But they don’t have to. We do need to have them sign, though, if they have legal custody.

If someone’s alleging they don’t have legal custody, or this parent is saying I have sole legal custody, then we require the most recent court order or custody agreement that shows us that, so that we have it on file. That’s kind of like the first part, just right from the beginning, making sure that we have consent, and it’s in our paperwork.

The second part of our paperwork is making sure that we have our fees outlined for any and all things court, because we need to get paid for our time, and we deserve to get paid for our time.

And I think the second most common thing I see in Facebook groups when we’re talking about subpoenas is questions about, how do I bill for this? Can I get paid for this? And it’s always harder, but not impossible, to go back after the fact and do a like a supplementary fee agreement. It is much, much easier if you can point to the one that’s already been signed, and that is your guiding light in terms of what you charge and what you do.

So, if you’re listening to this and you do not have a fee agreement or fee statement yet in your informed consent, please add one now. And that will make things a lot easier moving forward.

PATRICK CASALE: Yeah, do it immediately. And I think too many people are just defaulting to, like, whatever consent forms are auto-generated in their medical record system, because it’s like, “I don’t know what to add. I don’t have the capacity.” But these are the things that will save you a lot of stress and frustration in the long run.

And I’ve seen fee agreements, and I don’t know, I’m sure you have as well, referenced in these situations. And then, for the subpoenaing lawyer or person in general to drop it because I’m not paying this.

BRITTANY BATE: Yes, exactly. And I think, especially, after you tell them and remind them what you can and can’t do, and what you can and can’t speak to, then it’s definitely not worth [CROSSTALK 00:09:40]-

PATRICK CASALE: Right.

BRITTANY BATE: …the client to pay it. They’re going to have exactly what’s in your notes, or they’re not going to get the answer that they want. And you’re very clear, you’re not going to give them the information, because ethically, you can’t. Whether you want to or not, whether you personally have an opinion about custody or not, you cannot ethically give that. And so, a lot of times they will drop it. Even though they are attorneys, and it is quite literally their job, and they do this day in and day out, they are not mental health professionals, and many do not work with mental health professionals day in and day out. So, they truly don’t know what they don’t know either. And once we tell them, they’re like, “Okay, just kidding, we don’t want you at all.”

PATRICK CASALE: This is too much of a hassle. Goodbye. Yeah, I think that’s super important. So, foundationally, that sounds like a great first step.

Now, what I think a lot of people will say, “Okay, I have that in place.” But now I get that letter in the mail, and it’s certified, and I have to go answer and respond to it in a certain amount of time. And I don’t know what kind of subpoena is actually something I have to comply with.

BRITTANY BATE: Yes. So, and I guess just a general sort of default here, obviously, every state law is different. You want to check your own state laws and make sure that what I’m saying is consistent in your state. But in many states, I would say the majority of states, a subpoena from a attorney is not something that you have to comply with, but you do have to reply. And that’s where I see a lot of bad advice.

And again, it can be state to state. It might be that in some states you can just ignore it, but in the majority of states, and definitely in North Carolina, where I practice, you cannot just ignore a subpoena. You do have to reply. And then, you have to cite one of the options on the back. They give you several options about why you are not going to do what they’re asked. And usually, what we can cite is privileged information and/or undue burdensomeness.

I also see attorneys trying to get folks to come into court or to send the records within five days, and that is unduly burdensome. That would also be something, you know, for you, with your throat surgery, it would be unduly burdensome for you to come in after a throat surgery and give testimony. So, those are the ones that you can usually cite.

And again, your liability insurance can walk you through what to say when you are responding to the subpoena, but do not reply. I give this example because it’s a real-world example, and it was me personally, and I think it’s important.

So, I was subpoenaed by an attorney for a case that I was working on, as was another mental health professional that was involved in some capacity. And I went through all my steps that I go through. I called my liability insurance. I reviewed it. I used some language that they gave me. I replied via email to the attorney and said that this is the reason why I cannot. And then, if I had to, I could move forward with a motion to quash, and then in another one. But they ended up telling me, “No, it’s fine, never mind.”

Apparently, the other mental health professional did not reply. And they were ultimately held in contempt of court for not replying. And that judge held them in contempt. They did not hold me in contempt, and they did not make me come, because the attorney ended up not needing me to come, but because the other person just did not reply, they were held in contempt.

And I know that sounds scary, and it is scary. It’s not the worst thing that’s ever going to happen to you, probably.

PATRICK CASALE: Right, right.

BRITTANY BATE: But we’d rather not, so reply.

PATRICK CASALE: Yeah, so just that checking the box and that response could have saved a lot of stress and overwhelm in that situation.

BRITTANY BATE: Yeah, absolutely.

PATRICK CASALE: Yeah. That makes a lot of sense. So, you mentioned motion to quash for those listening who are like, “What the hell does that mean?” Tell those people that.

BRITTANY BATE: Yeah. So, at least in North Carolina, there’s two different pieces. I’m forgetting the legalese for the other piece. But the one piece is essentially just saying, like, “No, I’m not going to respond.” And nothing is required from that other than the response saying, “No, I’m not going to.” If they still want you to come, then there is another motion that you actually have to file.

And again, this is North Carolina-specific. It may not be this way in every state. But a practice attorney or your liability insurance can help you to file that other piece that does actually have to be filed with the court.

I have never gotten to that place with my response. It’s either been, okay, well, here’s a court order saying you have to do what I say you have to do, which is a different situation, or they’ve replied and said, like, “Never mind, you’re released.” But just to know that in some states, there is legislation where you have to go an extra step, and you do actually have to file a legal document. You have to do it yourself, but you can do it with the help of an attorney for the next step of replying to a subpoena.

PATRICK CASALE: Got it. Yeah, so I want everyone to know that, again, what Brittany’s saying and continues to mention state by state specific, right? Because just like when we’re talking about insurance, in general, it’s always like yes, but, or yes and. And the reality is, every state is very different. But very good advice, like in general, about something that feels so overwhelming and so scary for so many of you. All right, what comes next?

BRITTANY BATE: Well, the other piece, I guess, technically, before we reply, you do want to reach out to the client, too. So, you usually have seven days-ish to reply to a subpoena, and again, state by state. But usually, when you see it, you want to reach out to the client and try to get some information from them too. Do they even know that this is happening? Or did they request might be their attorney, and they are requesting it because they think that they want you to do the thing?

And so, I think it’s always important to remind clients of our fee agreement, and also give them the pros and the cons about you either releasing their treatment record or showing up in court or at a deposition, and what that really means.

Like attorneys, clients also don’t know what they don’t know. And so, I like to remind folks that this is what I can actually do and say, just so you know, is this what you were thinking would be helpful, or was there more or something else that you were hoping that I could share? Having that conversation with them.

And then, also just reminding them that if they bring me in, or if they bring their file in, their entire file, and everything that we’ve talked about is now open to cross-examination. They cannot give me a release to talk about just this one thing and just this one part. It is open. Anything that they ask me.

And while I might be documenting very, very carefully throughout the entire time that we’re in a therapeutic relationship, when I’m coming in, I cannot lie on the stand. So, while I might only document some things if there’s been other stuff that’s been said, and I get asked the question directly, I have to answer. And I make sure that they know that as well, if they’re considering bringing me in.

PATRICK CASALE: Yeah, that is a hugely important point. So, that’s definitely something that feels really important to notate and write down or remember.

Fees, so, the dreaded fee conversation. So many times, I see in therapist groups of like, “Yeah, I have it in my paperwork, but I don’t enforce it. I just go to court, or I just handle the administration side of this.” I don’t know who has all this extra fucking time in their lives, but like most people I know are like, “I am beyond my capacity.”

BRITTANY BATE: Yeah, yeah, not I. So, our fee is 350 per hour for all things court-related. That includes our hourly fees for responding to subpoenas. That includes our hourly fee for putting the file together. That includes preparation time. And if they want us to come in for a deposition or to testify, we have a retainer that they have to pay ahead of time, and they’re ultimately reserving that time on our calendar, because we can’t see clients during that time, we have to reschedule that. And so, we are rescheduling paying clients to be somewhere. And the retainer is non-refundable.

Oftentimes in court, days get moved and things get delayed. It happens more often than not. And I am not going to be held accountable, nor are my finances or my ability to pay my bills, because the court system is fucked up, quite frankly. Like it just is.

So, it is non-refundable, and we ask that they pay half of it within seven days, with the balance paid three days in advance. Because, usually, it’s the morning of that they’re like, “Just kidding, we don’t need you.” Or, “Just kidding. it’s been continued till the 19th.” Like, “Okay, well, I need another deposit because my calendar has been blocked off for this. You paid me to be here today.” Just like they paid their attorney to be there that day, right? And I’m not. So, that is a piece of it.

One thing to talk about fees, I also see this bad advice in Facebook groups a lot is, “Well, I just say that my fee is $1,000 per hour.” Don’t do that. It has to be reasonable and customary. So, 350, an hour for forensic work and for specialized work like that is reasonable and customary in most spaces. But $1,000 per hour, generally, is much. And people will do that to try to get out of going to court. Don’t do that because the judge can also order that that’s not reasonable and customary, and they don’t have to pay you for it, so…

PATRICK CASALE: Yeah, that’s great advice. And that is something that I see in Facebook groups all the time. Like, “Oh, I really like jack my rates up so that nobody will take me to court.” And it’s like, well, that’s just not how this is going to work, right? Especially in a situation where those clients have to go to court. So, in reality, reasonable and customary, very, very, very important.

I know you sell templates for all of this stuff, you do trainings for all of this. Talk about that stuff, because I know people listening are like, “This is great advice, but I need tangible.”

BRITTANY BATE: Yes. So, I have an on-demand court crash course. It’s three hours. And I co-lead it with my business partner, Jill Williams, who is an LCSW and a group practice owner in Asheville. So, we’ve recorded that, and we have that available anytime, because sometimes when the subpoena hits, you can’t wait for our next live training. So, we have that.

And part of that, there’s over 30 pages of documents that are done for you templates, which includes information to put into your informed consent about minors and consent stuff. It includes fee agreements. It includes a subpoena checklist. It includes treatment summary examples, if you need to write one of those. There’s a lot of stuff in there. And so, that is included, and you can find that on my website or on Jill’s, but my website has everything in one place to make it easy. So, it is boldpracticebuilders.com.

And then, I also have stuff in my Etsy store. So, if you go to Etsy and you type in Bold Practice Builders, if you don’t need the whole training, you just want my fee agreement for attorneys, it’s there as well, and you can find it there.

And then Jill and I do live trainings two or three times a year. And you can reach out to me through my website, and I’ll add you to the interest list, and let you know when we’re scheduling our next one.

PATRICK CASALE: Yeah, that’s great, because I think a lot of people could benefit from that, especially whether it’s live, recorded, the templates. I mean, those of you listening, like, protect your businesses that you’ve worked really hard for. I think that we so often think to ourselves, like, “I’m not going to invest in that now, because it’s never going to happen to me.” Or, “I’ll just deal with it when it comes up.” And if you’re not prepared, it can wreak a lot of havoc on your professional and personal life.

BRITTANY BATE: Absolutely. And I think maybe, like as a final piece of advice, that I want to make sure everyone hears that’s really important that we talked a little bit about, when you’re documenting… This is just sort of where I stand as a forensic psychologist. When I’m documenting, I document as though whatever I’m writing is going to be read out loud in a court of law in front of the client. And there’s a lot to that. But that is the way I am always thinking, and the way that I’m always documenting, because it just may be one day. And that’s really, really important to remember.

PATRICK CASALE: That is a really good final piece of advice, yeah, because, God, you do not want to be sitting in that courtroom having some of the stuff, some of y’all write in your notes read out loud. And that could create massive rupture in that client relationship.

BRITTANY BATE: Absolutely.

PATRICK CASALE: That’s really good advice, Brittany. I just want to say to you, real quick, I should have said this when we started that your intro, like, bio slide for your speech in Scotland had me cracking up, and I really loved it. And I was like, “Damn, this was really, really good.” So, I just wanted to [CROSSTALK 00:24:08]-

BRITTANY BATE: I appreciate it. Thank you. Thank you. Yeah, just trying to be real, trying to get some engagement, make sure people laugh. That’s important too during this really-

PATRICK CASALE: Oh, yeah. Oh, 100%. Mine is more like self-deprecating humor, and I have to just make fun of myself. And then, if everyone’s laughing, I’m like, “Okay, I feel okay now. Good.”

Very good advice. All of Brittany’s information will be in the show notes, so that you have access to her trainings, her templates. Every ADHD entrepreneur has an Etsy store. I just want to name that. I feel like, if you’re an ADHD entrepreneur listening, you’re probably like, “Yeah, I’ve got a fucking Etsy store in me.”

And me, I’m like, I can’t get it up and running. I can’t do the thing. My executive functioning combats with, like, putting the pieces together. But my friend Gabrielle, who’s probably listening, has an Etsy store. It’s just one of those things.

So, very cool stuff, Brittany, you’re very valuable. Really appreciate you coming on and making the time. And I will talk to you in some form or fashion soon.

BRITTANY BATE: Of course, thanks for having me.

PATRICK CASALE: And to everyone listening to All Things Private Practice, new episodes are out on Saturdays… When I forget the word, on all major platforms and YouTube. You can like, download, subscribe, share. Doubt yourself, do it anyway. See you next week.