EXPERT WITNESS: Experience teaches

By Michael G. Brock

Below is a real letter from a local attorney regarding the importance of the substance abuse evaluation in a DAAD hearing and my response:

"I'm a young attorney in the Downriver Bar Association; we met briefly months ago, and I attended the talk you gave a few weeks ago.

"I did my first license restoration hearing this week. I wanted to let you know that how helpful your talk was, and especially the written materials you handed out. I recently attended an attorney seminar (through the Institute of Continuing Legal Education) and was given printed handouts, and I also have another practice treatise on the subject. Oddly, I felt that your materials helped me prepare more than either of these attorney-produced works! For example, I don't think either of them emphasizes how important it is to make sure the petitioner is ready and willing to admit to his/her having an alcohol problem, and not making excuses for it. I could tell how important that was to the hearing officer. The idea of going through each of the Rule 13 factors in the closing was very helpful as well, and helped me decide what questions to ask/what kind of testimony I want to make sure I got on the record.

"The hearing officer told me I did a good job, but unfortunately he said he's taking it 'under advisement' and will mail out his decision. He seemed really disappointed in the substance abuse evaluation, which he called 'sloppy.' Unfortunately, my client went and got that done before retaining me, and I figured the rest of the evidence was strong enough that a weaker evaluation wouldn't matter. Now I'm not so sure; I'm feeling like this could go either way.

"In any case, next time I get one of these cases I'm certainly going to refer them to you.

Response:

Thanks so much for writing with your feedback. I do recall having the pleasure of meeting you a while back, and yours is the first direct feedback I've had from anyone who attended my presentation to the Downriver Bar Association on 4/4/2012. It was a bit frustrating trying to put that together. I felt like I had about two hours worth of material that I had to condense into 15 minutes. When I finished the presentation I kept thinking about all the things I wanted to say, but didn't get to.

I'm glad you found the material helpful. Obviously, I was able to go into greater detail in the written materials than I was during the presentation, but even there I had to limit myself to just three of the articles I felt were most pertinent to the topic. One thing I didn't want to do was to overload everyone with a lot of material they would never get around to reading.

I am very flattered that you found my materials more helpful than those you received at the seminars presented by attorneys. One of the articles I handed out gave a possible explanation for that: Driver's License Restoration is Counter-intuitive states, "If there are attorneys out there who don't think a mental health professional should be giving lawyers advice, I would simply say that this may be the one time in the legal arena where what the mental health professional and the client have to say could be more important to the success of his case than what the attorney says. The client must speak for himself, first, through the mental health or substance abuse professional, then directly to the hearing officer. If he is seen as being in denial, there is little counsel can do to affect the outcome of the hearing."

Hearing officers probably interview more alcoholics than anyone except substance abuse counselors. And while anyone can pick up gross symptoms of denial, only those who are very familiar with how addicts think will pick up more subtle indications. Moreover, like substance abuse counselors, hearing officers know that an alcoholic who does not own his problem does not own a solution; hence, the first step of AA: "We admitted we were powerless over alcohol, that our lives had become unmanageable." However, while counselors and AA members can afford to be patient with those who have a hard time accepting their condition, hearing officers know that their mistakes can cost lives.

The idea of going through each of the Rule 13 factors is one that I can't take credit for. I wrote the article, but the ideas came from Attorney Matt Zick, whom I have found to be a very effective and detail oriented advocate. Perhaps that's why we work so well together; we're both sticklers for thoroughness and accuracy when it comes to providing value to our clients.

Hearing officers don't always tell you the outcome of a hearing at the time; that doesn't always mean they've decided against you. However, it sounds like you learned something about the importance of the substance abuse evaluation (or as it is now called, the substance use disorders evaluation). It is important to keep in mind that this is the evidence the state has requested from your client. The hearing officer is a defacto judge, whose decision can only be overturned for abuse of discretion. If a judge asked you for a report in a case you had in district or circuit court, you would consider that pretty important, wouldn't you?

I am often bombarded by evaluation clients with information they think is relevant but often is not. Even if it is, if I'm on page one and they are giving me page five information all it does it slow down the process. I respond as politely as possible, "Do you want to tell me what you think is important, or do you want to answer my questions and give me what the hearing officer wants to know?"

What compounds the problem is when what the client thinks is so important has to do with why he shouldn't have been pulled over in the first place, or something else that suggests he is still in denial about his problem with alcohol or other substances. These symptoms can be relatively subtle, such as the following:

Evaluator: "Have you had any substance abuse therapy?"

Client: "No."

Evaluator: "No?"

Client: "Well, only what the court made me do."

Evaluator: "Oh, I see; after you third OUIL when you blew .22 the court made you go for therapy, not that you needed it or would have sought help on your own?"

Client: "That's not what I meant."

Evaluator: "But that's what I heard. Maybe you should just answer the question."

The fact that a client wasted his money on a sloppy evaluation before he retained you shouldn't keep you from telling him he needs a better one to make the best possible case. Besides wasting a year and the expense of doing the entire process twice, if the evaluation is poorly done or the case poorly handled the first time, it can also make the follow-up appeal a year later more difficult. Matt Zick tells me that he offers his clients a choice: "You can spend the money for a proper evaluation and give yourself a fighting chance to win, or we can go with what you have and lose."

Not all of my clients are represented by counsel, but whether they are or not they need to be cognizant of the fact that they're not just going to walk in there and be handed a license; this is an appeal, so the burden of proof is on the client and the standard is clear and convincing evidence. Hearing that from both myself and his attorney does not do any harm. Valuable information bears repeating. Valuable information bears repeating.

I'm glad to hear that you'll be coming to me next time. I'll be happy to handle your evaluations, and I encourage you to read over my reports before you send them in. If there are any mistakes or changes that you believe need to be made, I will be happy to make them, provided the requested changes do not violate legal or ethical standards. Again, thanks for taking the time to provide feedback.

Yours truly,

Michael G. Brock

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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; (313) 802-0863, fax/phone (734) 692-1082; e-mail: michaelgbrock@ comcast.net.

Published: Wed, May 16, 2012

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