EXPERT WITNESS: Penny wise

By Michael G. Brock

Recently an attorney I do some work for asked me to comment on a compilation of suggestions from another attorney for his clients in driver's license appeal cases. Looking it over, I found that most of the suggestions were useful and showed an understanding of the applicable law as well as what questions could be reasonably anticipated at a DAAD hearing. However, some of the suggestions related to the substance abuse evaluation and included what I believe is a misunderstanding of the importance of this evidence to the appeal.

For starters, this attorney suggests that the appellant obtain an evaluation at a counseling center that is affiliated with a hospital or a doctor's office in order to obtain the drug screen at a cheaper price. I encounter this thinking from time to time among attorneys who handle these cases, but I would say that it comes more from those who do a general practice than from lawyers who make a specialty of driver's license appeals. An attorney who has focused on this area of law would be very unlikely to let his clients obtain the most important piece of evidence at their hearing wherever they want to in the first place, let alone to suggest that price is the most important consideration for the substance abuse evaluation.

If the bottom line is the bottom line, the client is better off to get a first rate evaluation and save the money for an attorney. But that is not necessarily a good strategy either. When clients ask me if they need an attorney I tell them that a good attorney will always give them an edge in a legal arena, but it's not enough. They ultimately have to talk for themselves and if they are confused or lacking information the hearing officer thinks they should have, their lawyer cannot save them. They have to be prepared. As for attorneys who call me to complain that my seven-page, type written evaluation is not the two pages of hand scratch that they were expecting, what can I say?

Keep in mind that the practice parameters are very loose around who can do a substance abuse evaluation. Anyone licensed at the Master's level in mental health or possessing a two year degree and a substance abuse treatment license can legally do one of these evaluations. The vast majority of persons possessing these qualifications have no clue what the DAAD is looking for, and even if they do, they may not have credibility with the DAAD. One of the lawyers I work with was told by a hearing officer that a woman with a two year degree had limited credibility in their office and suggested he use me in the future.

Given that one can pay a lot for an evaluation with limited credibility, do you want to further limit your client's chances by telling him to roll the dice and then choose on the basis of price? Most attorneys are aware of the value of expert witnesses. A credible witness is a valuable asset at a hearing. The substance abuse evaluator is your expert witness at the DAAD hearing. Having a bad witness is worse than having no witness at all, but you don't have that option; you must have an evaluation. Don't you want to pick your witness?

Granted, in most cases we are not dealing with wealthy clients, but without exception, if the client can afford to have an attorney he can afford to have a quality evaluation. In fact, anyone who does these appeals and is honest with himself must realize that the quality of the evaluation is more important than the quality of the lawyering. Clarence Darrow is not going to win a DAAD appeal with a bad evaluation; meaning one that is either badly done, or includes information or conclusions that are sure to get your client denied.

Examples of these evaluations would be: those in which all of the offenses are not included; those with incorrect dates or conflicting dates, or where sobriety is claimed before the last arrest date; a fair or poor prognosis; different factual data than has been reported on a previous evaluation unless it is stated as a correction; one that fails to state remission status; or an evaluation that states the client needs more therapy or AA before they are ready to drive, etc.

I had a person come to me for a second evaluation recently where the first evaluator had said he was in remission from alcohol dependence, but gave him a diagnosis of dependence on legal opioids. What chance do you think he had? His lawyer, with verification from the doctor that he was taking prescription medications as prescribed and not in sufficient amount to interfere with his driving, might have been able to make the argument that he was still qualified to obtain a restricted license, but not when his expert witness states that his client is drug dependent. Moreover, I have a problem with evaluators who provide a client with this type of evaluation without telling him that he would be wiser to deal with the drug issue before scheduling a hearing. Even with a new evaluation that shows the condition has been addressed, that diagnosis is part of the record and is going to be difficult to overcome the next time.

The attorney who authored the above mentioned suggestions also recommended that his clients obtain the required letters and other verifying data before they obtain the substance abuse evaluation. I prefer that clients don't get letters or drug screens before they see me for very good reasons. Many of them have not read the state's requirements for what must be contained in the letters before they see me, so when they come to me they frequently have notarized letters that are not signed or dated, or don't say where they know the person from, or for how long, or when they last knew him to have a drink, etc, and that have to be redone. I hand the client the state's printout and tell them to give it to the people writing their letters. I recommend they get six.

Letters that require rewriting may cost clients time, but they don't cost them money. However, if a client goes to the lab I contract with and asks for a ten panel urine screen without telling them he is my client, he will get one without integrity variables, which is useless and a waste of money. Given that drug screens are now required by the state to have these integrity variables, few evaluators do their own drug screens anymore. I work with the lab to keep costs down and focus on giving the client value for their dollar, which is what I hope for as a consumer.

Lastly, this attorney states that AA is a must. I have dealt with this issue in a previous article (What if Your Client Doesn't Go to AA?), so I won't rehash that information here. If you would like to read it you can find it at my website: michaelgbrock.com. Suffice it to say that not everyone must have AA. Many people are arrested early in the progression of their disease before they have advanced to the stage where they will need ongoing support for the rest of their lives; perhaps even before they have become alcoholic. I recognize these people by the amount and frequency with which they drank; whether they used other drugs (especially hard drugs), and the severity of the psychosocial problems they have created in their lives in addition to their legal issues. Those with strong social support networks, including church affiliation, good marriages, close extended family of non-substance abusers, and a history of success in other areas of their lives, are often able to recover with limited involvement in AA and/or therapy.

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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, Jul 18, 2012