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Cross-examining Mental Health Experts in Child Custody Litigation
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David A. Martindale
The Journal of Psychiatry & Law, 29/Winter 2001,
483-511
Introduction
[Custody
litigation evokes in the competing parents many of the emotions that
most dramatically impair objectivity. Among the commonly experienced
feelings are competitiveness, anger, frustration, insecurity, and
distrust. An attorney representing the non-favored litigant should not
be surprised when her client cites information not considered; registers
complaints regarding procedural irregularities; and/ or declares that
the evaluator was not impartial. Examples of evaluator error abound and
the rants of disgruntled litigants, though emotionally expressed, often
convey objectively verifiable complaints.
Though some individuals are motivated by tactical concerns when they
seek the court’s designation as a child’s custodian, it must be presumed
that custody litigants generally believe themselves to be superior
parents. Because most litigants are hopeful that they will be favored
and feel that they should be and because 50% of them are
disappointed, anger is to be anticipated. When non-favored parents
mentally search for explanations for the recommendation that has been
offered, they frequently look outside themselves, and they frequently
conclude that the unfortunate outcome of the evaluation lies neither in
their parenting deficiencies nor in the competing parent’s strengths;
rather, it lies in errors made by the evaluator. Some custody litigants
are correct, of course, in believing that they have been placed at a
disadvantage by the actions of a biased evaluator.
While not every litigant who complains of evaluator bias has, in fact,
been a victim of bias and though it is reasonable to presume that
evaluator bias is uncommon, unquestioning trust in evaluator neutrality
is naïve. The personal values that guide the lives of others and the
human weaknesses that affect the lives of others are seen in evaluators
as well. Whether in private conversation or courts of law, people who
express opinions like to see those opinions accepted and are naturally
inclined to offer supporting information and disinclined to offer
non-supporting information.
As practiced by many attorneys, there is a sizeable improvisational
component to the cross-examination of mental health experts in custody
litigation. Extracting from evaluators information not supportive of
their positions is a task requiring organization; planning; and, in some
cases, litigation support services from a knowledgeable expert. With
appropriate pre-trial preparation the serendipitous element can be
significantly reduced and flaws in an evaluator’s work can be more
effectively revealed.
Discovery
Ideally, the initial selection of an evaluator has been an informed
decision, and the attorneys involved are familiar with the evaluator’s
education, training, and experience and have available for their review
a copy of the evaluator’s curriculum vitae and a copy of the
evaluator’s agreement with the parties. If a detailed curriculum
vitae and a copy of the evaluator’s agreement are not already on
file, request them. In scrutinizing an evaluator’s CV, pay
attention to the presence or absence of education and training in the
forensic specialty area and, in particular, to the presence or absence
of indications of preparation for conducting evaluations of comparative
custodial suitability. Because the involvement of mental health
professionals in forensic matters is relatively new, very few mental
health practitioners received their original education and training in
the forensic specialty. The vast majority were educated and trained as
clinicians. It is inappropriate for a mental health professional whose
background is treatment-oriented to accept forensic assignments without
first having secured education and training aimed specifically at
preparing one for forensic work. If the evaluator’s CV does not
include a list of workshops attended, such a list should be requested.
It is not unreasonable to expect that even a newcomer to the field will
have attended workshops addressing custody-related matters prior to
offering services. A more experienced practitioner is likely to have
reached the point of offering such workshops to others. If there is no
evidence of the evaluator’s having received appropriate advanced
training, plan to inquire about this deficiency at trial;
formulate questions aimed at making this deficiency apparent to the trier
of fact; and, give thought to the manner in which you will demonstrate
the importance of this deficiency to the court.
When evaluators claim to be diplomates or indicate that they are board
certified, obtain information concerning the organizations by which the
credentials have been awarded. The differences among credential-granting
boards are significant. With the increase of forensic assignments to
mental health professionals has come a proliferation of credential
granting organizations, many of which subject applicants to no scrutiny
whatsoever. Such organizations operate as though they are presuming that
all background information provided by an applicant is accurate.
Examinations, if required at all, are taken at home without supervision
and the presumption is made that such exams have been independently
taken by the applicants. Other diplomate granting boards — for
example, the American Board of Professional Psychology – conduct a
rigorous credentials review, work sample review, and oral examination.
If evaluators
identifying themselves as diplomates or as board certified fail to
designate the specialty in which their credentials were awarded, that
information should be sought prior to trial. Similarly, if evaluators
claiming to hold credentials suggesting advanced and specialized
training fail to identify the credential-granting organizations, request
this information as well. Finally, when credentials have been awarded by
organizations with which attorneys are unfamiliar, they should determine
how the organizations can be contacted and should request from these
organizations descriptive information outlining the credential granting
process. Those who feel that investing one’s time in such pursuits is
wasteful should be aware that household pets (whose owners are willing
to pay the required fees and to make untruthful statements concerning
their pets’ education and training) can secure board certifications from
several organizations, some of which have very impressive names1
Boards that issue certificates without first having conducted a
meaningful assessment of a candidate’s expertise are euphemistically
referred to as “vanity boards”.
With regard to the evaluator’s agreement, even though litigants are
typically directed by the court to submit to custodial suitability
evaluations, a responsible evaluator presents those being evaluated with
a document outlining procedures and fees. Attorneys should review such
agreements with their clients in order to ascertain whether evaluators
have followed the procedures outlined in their agreements. Remarkably,
many evaluators fail to honor the terms of agreements that they
themselves have written. If certain procedures were not followed,
inquiries can be made concerning any discrepancies between how the
evaluation was conducted and how the evaluation was to have been
conducted. Such inquiries are particularly important if your client has
been placed at a disadvantage by virtue of the evaluator’s failure to
follow the procedures outlined in the agreement.
As a matter of routine pre-trial preparation, attorneys should request
(or, if necessary, subpoena) evaluator files. In preparing such
requests, care should be taken to close any loopholes and to leave no
room for misunderstandings2. Obtain all information on
file concerning the matter. If, for any reason, contemporaneously taken
session notes have been re-done, make clear that both the newly created
notes and the original, contemporaneously taken notes are being
requested. If only one set of notes is provided and is represented as
being the evaluator’s contemporaneously taken notes, present the notes
to your client and ask that the notes be visually inspected. The
client should be advised to reflect upon the type of paper and type of
writing instrument used as notes were being taken. An effort should be
made to ascertain by visual inspection whether the notes presented as
being contemporaneously taken are, in fact, what they are purported to
be.
The
search for indications of bias is most efficiently begun by comparing
the contents of an evaluator’s contemporaneously taken notes with the
evaluator’s description of factors supporting the opinion(s) offered. In
reviewing an evaluator’s notes and advisory report, look for evidence of
deficiencies in the favored parent that appear in the evaluator’s notes
but are not alluded to in the report. Similarly, evidence of parenting
strengths in the non-favored parent that appears in the notes but does
not find its way into the report suggests bias. In addition to reviewing
contemporaneously taken session notes, notes taken during discussions
with collateral sources should be examined with the aforementioned
discrepancies in mind. The role of an expert (whether
court-appointed or retained by one of the parties) is to assist the
trier of fact. Doing so requires that evaluators report all pertinent
information, including information supportive of a recommendation
different from that offered in the advisory report. Custody evaluators
are reasonably expected to be thorough in reporting the information that
they have gathered. Where an examination of contemporaneously taken
notes and the advisory report reveals significant discrepancies, the
matter should be vigorously pursued.
Far too many experts re-do their notes (by entering them in a computer,
for example) for the alleged purpose of making them more legible and,
after having done so, destroy the originals. The creation of a new set
of notes is not objectionable as long as the contemporaneously taken
notes are preserved and made available for inspection.
Mental health professionals
practicing within the forensic arena are obligated to be mindful of the
manner in which information gathered by them will be utilized. As notes
are being taken; as other types of records are being created; as
supporting documents are being gathered; and, as decisions are being
made concerning control of the file, it must be borne in mind that all
items in an evaluator’s file are subject to discovery. With
specific reference to notes taken during evaluative sessions, there is
no justification for the failure to retain (and produce upon
request) one’s contemporaneously taken notes, nor is there any basis
either in law or in professional ethics for maintaining “personal notes”
that one views as being not part of the file and, therefore, not subject
to discovery.
When evidence has been destroyed (even if by a court-appointed
evaluator, rather than by a partisan), do not presume that the
destruction was innocent. The legal concept of spoliation incorporates
the opposite presumption. When evidence in any form has been destroyed,
it is reasonable to presume that the spoliator has acted in the belief
that he will benefit from the destruction. In the case of custody
evaluators, reconstruction of notes affords an unethical expert the
opportunity to engage in creative editing. Information not supportive of
one’s position can be deleted and information that bolsters one’s views
can be inserted. Additionally, evidence of one’s errors can be
eradicated.
None of the mental health professions demand that its members tape
record evaluative sessions. Some evaluators, however, choose to do so.
Interestingly, some of those who tape record sessions subsequently erase
the tapes. Some might argue that mental health professionals should not
be required to preserve that which they were not required to
create. I would disagree. Records of any type created by forensic
examiners constitute evidence. For that reason, once a record of any
type has been created, there is an obligation to preserve it. The same
duty applies to practitioners who view their task as clinical in nature
but who should reasonably anticipate that their records will be needed
in an adjudicative forum.
In reviewing the evaluator’s report, contemplate the procedures and
methodology from a lay perspective. If some aspect of an evaluator’s
procedure strikes you as not having been “balanced”, perhaps your
impression is correct. It should be clear from an examination of the
evaluator’s procedures that she is cognizant of the phenomena that
adversely affect objective decision-making3 and that
reasonable steps have been taken to avoid the various
pit-falls. A responsible evaluator must have a healthy
respect for the generally known and well-documented obstacles
confronting decision-makers. For example, the tendency for information
gathering to be influenced by (and, possibly, distorted by) previously
formed impressions has been discussed in the psychological literature
for more than five decades4.
This phenomenon, referred to as
mental set, is related to the primacy effect -- best known as
the “first impressions” dynamic. Unless something in a litigant’s
initial presentation immediately arouses suspicion, there is a natural
(albeit unintentional) tendency to accept the essential accuracy of the
fact pattern as it is related by the individual from whom background
information is initially obtained.
Evaluators who assert that knowledge of the primacy effect enables them
to “factor it in” are being disingenuous. Mental health professionals
are well aware that knowledge of a psychological dynamic does not
prevent it from operating. Unless an evaluation has begun with a meeting
attended by both litigants, someone has obtained the advantage afforded
by the primacy effect.
Know the evaluator
whom you will be cross-examining5. In some jurisdictions, a
handful of practitioners are performing the vast majority of custodial
suitability assessments. If the evaluator whose work you are questioning
is a high-volume practitioner, endeavor to obtain a reasonable number of
his previous advisory reports and scan them for identical passages.
Think like a statistician. What is the probability that the descriptors
employed in portraying the interaction between Mr. Smith and his two
sons (ages 3 and 5) accurately describe the interaction between Mr.
Jones and his two daughters (ages 8 and 11)? Where similarities between
reports are numerous, it is reasonable to explore corner-cutting by the
evaluator. Have important individual differences been explored or have
litigants been assessed in a cursory manner; categorized; and,
subsequently, described by means of paragraphs plucked from the memory
of the evaluator’s computer?
Experience
and ongoing education (in the form of attendance at workshops, etc.) can
stimulate changes in an expert’s perspective on certain issues. Though
inconsistencies between what an expert has testified to in an earlier
case or advised in the course of a presentation offered to local
attorneys and her currently expressed views will not always prove
fruitful in attempts to impeach her, familiarizing yourself with an
expert’s past pronouncements is useful and some changes in an
expert’s position warrant exploration.
It is reasonable to expect that experts will be cooperative rather than
combative, and open rather than secretive. A responsible impartial
examiner does not erect obstacles in the path of lawful discovery.
Things are not always as they should be. Therefore, items
received in response to requests (or subpoenas) should be checked
against those enumerated in the request. If you have doubts concerning
whether or not you have received all requested items, inquire. If
assurances are offered that all items considered by the expert have been
provided, any remaining doubts should be mentally filed and raised at
trial.
Inquiring at trial concerning the completeness of the file as it was
submitted involves no strategic risk.
If the response
reassures you that all information considered by the expert in the
formulation of his opinion has been made available for your inspection,
you lose nothing tactically for having inquired. If the response
suggests that there is information that you have not seen, you have, by
raising the issue, alerted the court to the possibility that the
testifying expert has not complied with the rules of discovery and that,
by extension, the expert may not be impartial.
Attorneys should keep certain documents on file for convenient reference
when needed. In most states, the regulatory agency that oversees the
health professions has promulgated unambiguous standards governing the
creation and maintenance of records. It is often useful to compare what
has been presented with what is required. Note should be made of any
failure to conform to state regulatory standards. Not surprisingly, when
significant errors have been made by evaluators, it is often as a result
of a failure to respect the admonitions found in their profession’s
ethics code and in other documents intended to provide guidance to
responsible professionals6. These documents too should be
available in attorneys’ offices.
Interviews with children
If children are old enough to converse with an evaluator, at least two
private sessions should be conducted with them. Children should be
transported by parent A on one occasion and by parent B on the other
occasion. It is only by doing this that it becomes possible to note any
inconsistencies between what they say after having been transported by
parent A and what they say after having been transported by parent B.
This is of particular importance in cases where allegations have been
made concerning attempts to inappropriately influence the children. When
children have been interviewed only once, attorneys should ask their
clients about the arrangements that were made for transporting the
children. If the favored parent was the transporter of the children,
information concerning pre-session activities should be delicately
sought. Without interrogating the children, the client should make a
reasonable effort to ascertain whether the parent transporting the
children engaged them in any particularly pleasant activities beforehand
and whether the transporting parent discussed with the children what
should be said to the evaluator. Consider the following scenario. On
Sunday evening, Parent A returns with Junior from a week in Disney
World. Junior is energized, but Parent B insists that he go to bed on
time because there is school tomorrow. Upon Junior’s return from school
on Monday, Parent B insists that he do his homework because he has an
appointment with the evaluator that evening. Parent A transports Junior
to his only appointment with the evaluator and, along the
way, they reminisce about their week together at Disney World.
Advancing cogent arguments in support of a custody/visitation
arrangement that will be in the children's best interests requires that
an evaluator do more than simply ask the children what their wishes are
and communicate those expressed wishes to the court in an advisory
report. An evaluator must utilize questions likely to elicit the
information needed to evaluate the legitimacy
and the long-term implications of the children's stated
preferences. When, on the basis of other available information, you are
reasonably certain that children have not been effectively interviewed,
that pertinent inquiries have not been made, and that the position of
the client being represented would have been supported if appropriate
questions had been posed, you should consider cautious probing. Though
cross-examination of this type entails some risk, it is an approach
worth considering when your client can specify questions which, if they
had been posed by the evaluator, would have elicited information
supportive of her position.
Assessing significant others
In
reviewing the advisory report, be certain that any individual(s), other
than hired child-care providers, currently playing or likely to play a
parent role were fully evaluated. In particular, if a parent has made
known his intention to remarry an already-on-the-scene person, that
person should have been evaluated. Parenting demands team work. If
Parent A plans to remarry J. Doe upon receipt of a divorce decree and if
an evaluator favors Parent A, the evaluator is, in reality, recommending
the parenting team of Parent A and the soon-to-be new spouse.
Recommending a two-person team having evaluated only one member of the
team constitutes formulating an opinion on the basis of insufficient
information.
Information gathering
Formulating an opinion in a custody/visitation dispute requires that the
examiner be attentive to both the quantitative and qualitative aspects
of data gathering. For the foundation upon which a recommendation rests
to be secure, much information must be gathered and the caliber of the
information must be such that it will withstand reasonable scrutiny.
It is generally agreed that data
should be obtained through interviews, through the administration to the
parties of psychodiagnostic assessment instruments, through available
documents, and through collateral sources7.
One of the most essential distinctions between clinical and forensic
evaluation is the investigative mind-set that is so critical to forensic
endeavors. A forensic examiner cannot be a passive recipient of
proffered information. An evaluator is obligated to actively seek
information beyond that which is presented by the parties or by their
legal representatives. Data collected in a recent study8
suggest that approximately 28% of the evaluative time expended by those
responding to a survey was devoted to information verification
(obtaining information from documents, from disinterested collateral
sources, and from other non-parties).
Records that may contain pertinent information include: those maintained
by current or previous therapists; those kept on file by schools that,
in addition to outlining academic performance and social functioning,
will frequently contain notes from parent-teacher teacher conferences
and other information regarding parental involvement; those of employers
that may contain information concerning characteristics pertinent
to parenting as well as to job performance; medical records; and, charge
account records.
Because conflicting
claims are so common in custody disputes, evaluators frequently rely on
information provided by collateral sources. For that reason, effective
cross-examination is essential whenever there is reason to question the
accuracy and/or completeness of information communicated by the
evaluator. An expert may rely upon and accurately report information
that is false; may be careless either in recording or in reporting
information obtained from collateral contacts; or, may knowingly distort
information provided by a collateral source. Additionally, an evaluator
may fail to obtain information that should have been obtained.
Most evaluators ask
that litigants submit lists of collaterals whom the litigants believe
can provide pertinent information. Typically, such lists contain the
names of allies as well as the names of presumably disinterested
professionals (such as teachers, pediatricians, etc.). Review these
lists and compare them with the evaluator’s list of collaterals who were
contacted. Unless each collateral on your client’s list was contacted,
you should inquire with respect to who was contacted, who was not, and
why those not contacted were omitted.
Evaluators as a
group have recognized the need for specialized education and training.
As a result, certain information-gathering errors are being encountered
with less and less frequency. Nevertheless, there are still situations
in which information secured either from documents or from collateral
sources represents nothing more than information provided by a litigant
and passed along – now enhanced by a misleading aura of objectivity. Two
common examples follow. (1) A police report the contents of which are
limited to a statement taken from a litigant by a responding officer.
(2) A therapist being interviewed as a collateral source opines that a
litigant is very patient in dealing with her child. The
evaluator, however, neglects to inquire about the basis for this
opinion. The therapist has never observed the litigant interacting with
her child and has, apparently, unquestioningly accepted the litigant’s
statements. The evaluator reports the therapist’s opinion as though it
were an opinion independently formulated by a mental health professional
on the basis of his own observations.
Information can be
gathered from collateral sources in a variety of ways. Knowledgeable and
experienced experts disagree among themselves concerning the most
effective means by which to increase the quantity and quality of
information gathered. It is in discussions of an expert’s use of
information from allies that disagreement is most pronounced.
Information can be gathered orally or in written form. Those from whom
information has been sought can be presented with specific questions
prepared in advance or can be offered an open opportunity to share
whatever information they deem pertinent. Evaluators can combine a
structured approach with an open-ended approach. Some evaluators pose
the same questions to all those from whom information is sought. Of
greatest importance is the evaluator’s rationale. Can she cogently
articulate her reasons for having gathered information in the particular
manner in which it was gathered? Have accurate records been maintained?
Are there indications that the evaluator was selective in what she made
note of?
In reviewing an
evaluator’s report, watch for summaries of information provided by
classes of people. Examples include: “Neighbors informed me . . .”;
“Co-workers described Mr. Ajax as . . .”; “School personnel agreed that
. . .”. Evidentiary demands require that evaluators identify each
collateral source from whom information has been obtained and disclose
what information was obtained from each source. If you are troubled by
the paucity of an evaluator’s notes and believe them to be incomplete,
you should request and carefully inspect the evaluator’s time logs. It
is reasonable to expect that among the records kept by evaluators will
be logs similar to those maintained by attorneys. If an evaluator’s time
logs reveal that he commenced a phone conversation with Johnny’s teacher
at 10:00 A.M. and concluded the conversation at 10:40 A.M., a
one-sentence summary of the 40-minute discussion is inadequate. Requests
made to an expert favoring the other party that he try to recall more of
his conversation with Johnny’s teacher afford him the opportunity to
bolster his position. The potential tactical benefit, however,
may well outweigh the risk.
Under
cross-examination, evaluators whose notes are sparse will frequently
recall information that does not appear in their notes. An evaluator’s
acknowledgment that she has relied upon information not in the file
provides the cross-examining attorney with an opportunity to expose
deficiencies in the expert’s documentation of her work. Effectively
demonstrating that an expert’s notes and/or other records are deficient
can significantly affect the weight placed on the expert’s testimony
and, where egregious omissions or errors exist, can lead to the
disqualification of the expert.
Federal Rule of
Evidence # 703 declares that experts may utilize facts not in evidence
if those facts are “of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject. . .
.” The reasoning that underlies FRE # 703 has led most courts to grant
wide latitude to experts as they relate information provided to them by
others. It is often argued that this freedom from the restrictions
usually imposed by the hearsay rule is warranted because experts should
not be encumbered as they explain the manner in which their opinions
were formulated and that hearsay information is related for this purpose
only and not for the truth of it. Experienced attorneys can undoubtedly
recall situations in which this privilege has been abused. Information
communicated either in an advisory report or from the witness box
influences the trier of fact. If that information is inaccurate, the
fact-finding process is compromised.
Psychological testing
The vast majority of
mental health professionals conducting evaluations of comparative
custodial fitness are clinicians who have entered the forensic arena for
a variety of reasons. Some have brought to forensic work
psychodiagnostic assessment instruments generally considered useful in
clinical work. Several of the instruments long-favored by clinicians
are, however, ill-suited to the evidentiary demands of forensic work.
Many, while useful in generating hypotheses are neither reliable nor
valid.
In a clinical setting, a psychodiagnostic assessment marks the beginning
of an ongoing relationship in the course of which there will be
opportunities for subsequent reassessment. As new information
disconfirms old hypotheses, appropriate adjustments can be made. In a
forensic setting, the report in which one's assessment is described
marks the end of a relationship. No opportunities to reassess are
provided. Because of this critical difference between clinical
assessment and forensic assessment, it cannot be presumed that
instruments popular among clinicians are suitable in forensic work.
Clinical assessment is conducted for the purpose of describing and
subsequently classifying symptoms; identifying enduring personality
characteristics that may either facilitate or complicate treatment
efforts; and, discerning maladaptive patterns of behavior. Such
assessment is conducted in order to make informed therapeutic
intervention possible and, in some instances, to gauge the progress of
therapy. With only few exceptions, the individuals being evaluated have
come to the practitioner’s office of their own accord, perceive the
practitioner as someone whose task is to assist them, and are motivated
to be disclosing and candid. The purpose of forensic assessment is
entirely different. The evaluator’s goal is to obtain information
bearing upon a specific psycho-legal matter and not to be distracted by
information that, in a clinical context, might be significant but fails
to provide answers to the questions that are the focus of the
litigation.
The assessment devices used by mental health professionals in
custody-related matters are either self-report inventories (objective
tests) or projective devices (subjective tests). Self-report inventories
are tests in which inquiries are
made of the examinee concerning symptoms, behavior patterns,
perceptions, attitudes, beliefs, etc. Responses are subsequently scored
by computer or by means of answer keys. Projective devices require that
the examinee respond to ambiguous stimuli (such as ink-blots, in the
Rorschach test), and the examinee’s responses must be interpreted by the
examiner. The probability that different examiners will interpret the
same data in the same manner can be ascertained and reported in the form
of an inter-judge reliability coefficient.
Imwinkelried cites case law that supports a cross-examining attorney's
right to "demand an affirmative showing [by the expert] of [an]
instrument's accuracy." Inter-judge reliability coefficients for
projective tests have not been impressive. In Anastasi's view, "the
final interpretation of projective test responses may reveal more about
the theoretical orientation, favorite hypotheses, and personality
idiosyncrasies of the examiner than it does about the examinee's
personality dynamics." In describing projective tests
of general mental/emotional health, a text described as “A Deskbook for
Judges” observes that they “generally exhibit low reliability and poor
validity.” The authors conclude that such instruments “are
of little forensic value and are useful only for clinical speculation
and hypothesis generation.” “Some of these tests . . . [are susceptible
to] egregious misuse [and are] of no more probative value than tea-leaf
patterns in the bottom of a cup.”
Tests intended to measure functional abilities that bear directly
upon custodial suitability have not been reviewed favorably. LaFortune
and Carpenter list the seven most frequently used assessment instruments
that “focus on parenting skill and the parent-child relationship” and
that are “touted by their authors as helpful in clinical determinations
of parental fitness.”13 LaFortune and Carpenter
declare: ‘[T]he validity of these measures is unestablished at best and
seriously flawed at worst.”Although the hope is expressed that
improvements in these instruments may make them useful in the
future, the authors conclude that their use at present “cannot be
recommended.” The frequency with which certain instruments are utilized
may be attributable more to marketing and related phenomena than to
psychometric integrity.
It is not uncommon for evaluators who have utilized instruments lacking
in both reliability and validity to suggest that their use of more
established instruments as well should put to rest any concerns that
might be raised concerning the questionable instruments. Their reasoning
is fallacious. Flawed information is problematic. With regard to
assessment data, formulation of a sound opinion is more likely if one
utilizes two or three instruments that are reliable and that gather data
pertinent to the decision that must be made than if one uses multiple
instruments some of which may be of questionable reliability or may
gather data that do not bear directly on the matter before the Court
Formal assessment of
children
Assessing the
children who are the focus of a custody dispute is particularly
problematic. If, in formulating her opinion and supporting her
recommendation, an evaluator has placed significant weight on the
psychological characteristics of a child, critically examine the manner
in which the child’s characteristics and/or special needs were
ascertained.
First, the instruments typically utilized in evaluating children are
strongly influenced by situational variables; that is,
performance is affected by recent events, transitory moods, etc. Where
the role of situational variables is strong (as is the case with family
drawings)17, it is unlikely that useful information can be
derived from the assessment instrument. Data gathered through the use of
objective assessment instruments not unduly influenced by situational
variables are more likely to provide information concerning the
children's current psychological functioning. Second, even where the
best available instruments have been utilized, the utility of test data
in assessing enduring personality characteristics or persistent
(as opposed to transient) psychopathology is questionable. Once parents
enter into disputes concerning the custodial placement of children, the
children’s life circumstances change dramatically. The children are now
living in a world in which there may be significant conflict accompanied
by open expressions of anger; where their living circumstances may
change unpredictably; and, where the expression of certain emotions may
be actively discouraged while the expression of other emotions is
reinforced. If assessment is conducted during this period in
children’s lives, we must question the degree to which the data obtained
are reflective of the children’s pre-conflict functioning or predictive
of their future functioning.
Computer-generated
reports
All writers develop an expressive style. When reading the section of the
advisory report addressing impressions of the parties that have been
developed on the basis of test data, look for indications that the
expressive style differs from that which characterizes the other
sections of the report. It is not uncommon to encounter reports in which
statements interpreting test data have been taken verbatim from
computer-generated interpretive reports. Mental health professionals
utilizing psychological assessment instruments are expected to
accept responsibility for the
interpretation of test data even if the tests have been scored by a
computer and even if a computer-generated interpretive report has been
provided. The reason is self-evident: The authors of the computer
programs that interpret test data are typically not available for
cross-examination.
If
you question the basis for interpretive statements, however, you take a
calculated risk. Even skillfully framed inquiries can provide experts
with opportunities to reinforce opinions expressed earlier on direct
examination. Because I believe the interests of children are best served
when triers of fact are fully informed of the bases for all opinions, I
advocate posing such questions. I must point out, however, that it
cannot be presumed that the information elicited will reveal that the
evaluator unquestioningly accepted a computer’s purported wisdom, nor
can it presumed that your client’s position before the court will always
be strengthened by such inquiries.
Expert opinions
Prior to commencing
an assessment of comparative custodial fitness, an evaluator must decide
what he will look at. Unless this is done, his gaze may be diverted. If
you don’t know where you’re going, the probability of getting there is
substantially diminished. In states in which the factors to be
considered by evaluators are not statutorily defined, it is essential
that evaluators determine what criteria they will employ in examining
the otherwise nebulous psychological best interests of the child.
All
forensic experts bear the burden of specifying the data that form the
foundation upon which their professional opinions rest. In a matter
involving custodial suitability, the expert should specify the criteria
that were employed, the data that were gathered, and the manner in which
those data bear upon the criteria. The use of predetermined and clearly
articulated criteria increases the ability of evaluators to focus their
attention on legally relevant abilities and characteristics and not to
be distracted by litigants’ likeability (or lack thereof) or by
disagreements that may have occurred between evaluators and litigants in
the course of the evaluation.
Oliver Wendell Holmes, Jr., in an article written for the Harvard Law
Review, in 1918, observed: “We have been cock-sure of many things
that were not so.”18 Confident experts are sometimes
mistaken. Some advisory reports contain little more than hints at how
the evaluator’s opinion was formulated. The reader of such reports is,
implicitly, being asked to have blind trust in the evaluator’s
expertise.
When the Daubert case was remanded by the U. S. Supreme Court to
the 9th Circuit Court, the evidence proffered by the Dauberts and
Schullers was, again, rejected by the Court. Judge
Alex Kozinski, writing for the Court, declared: The Court’s task “is to
analyze not what the experts say, but what basis they have for saying
it.”
Not to make clear the manner in
which one’s opinions were formulated is a disservice to those who must
utilize the report as a guide to their decision-making.
Experts have been known to justify their omission of certain information
by asserting that its inclusion would be confusing to a
non-psychologist. The fact that mental health professionals are
appropriately discouraged from utilizing jargon does not relieve them of
the obligation to explain that which requires explanation.
There
is an important difference between an expert opinion and a personal
opinion.
When an expert has
formulated an opinion, it is reasonably presumed that the expert has
drawn upon information accumulated and published over the years. The
defining attributes of an expert opinion relate not to the credentials
held by the individual whose fingers type the words or from whose mouth
the words flow; rather, the requisite characteristics relate to the
procedures that were employed in formulating the opinion and the body of
knowledge that forms the foundation upon which those procedures were
developed. If the accumulated knowledge of the expert’s field was not
utilized, the opinion expressed is not an expert opinion. It is a
personal opinion, albeit one being expressed by an expert.
Review and rebuttal
Though battles between experts frequently do little to bring light to
the situation, the best interests of children are ill-served when flawed
reports go unchallenged and become the basis upon which the trier of
fact rests her Judicial Decision.
Where an expert’s
opinions have not been formulated through the utilization of appropriate
procedures and are not supported by reliable data, exposing these
deficiencies is essential. Not only is it possible to conduct a
meaningful review of an evaluation working only with the original
evaluator’s file, in some jurisdictions it is a procedure that is deemed
preferable to involving families in multiple evaluations.
Where
the non-favored party believes the opinion of the expert to be flawed,
that party’s legal representative should be afforded every opportunity
to fully explore that possibility. The attorney for the non-favored
party should be permitted to present the report to an expert of his
choosing in order that the report can be critically examined. A
knowledgeable mental health professional with access to a report and
time to analyze it can discern procedural flaws; draw attention to the
use of inappropriate assessment instruments or the inappropriate use of
standardized instruments; uncover internal inconsistencies; point out
opinions that do not appear to be supported by data; and, perhaps most
importantly, identify errors in the interpretation of test data. A
rebuttal expert can also review the pertinent literature, summarize it,
and explain its applicability to the matter being adjudicated.
At Trial
Evaluations should not be performed by mental health professionals who
have served as treating practitioners for one or more of the individuals
being evaluated or for the children who are the focus of the custody
dispute. Conducting therapy and
providing expert testimony are incompatible activities.
The performance of each activity compromises one's
effectiveness in the performance of the other activity. If the evaluator
has also functioned as a treating practitioner, you should make a motion
seeking the evaluator’s disqualification. For similar reasons, if a
psychotherapist offers testimony concerning a patient, it is likely that
the information is in some manner incomplete and it is probable that the
alliance with the patient will impair objectivity. If opinion
testimony from a treating practitioner is permitted, conduct a
vigorous and extensive cross-examination. Forensic experts are expected
to investigate the accuracy of information provided by those being
evaluated. Treating practitioners, on the other hand, do not verify
information offered by their patients and recorded in session notes. For
this reason, pose questions that will elicit from clinical practitioners
an acknowledgment that information relied upon in the formulation of
their opinions has not been verified. Additionally, seek an
acknowledgment that the therapeutic alliance upon which successful
therapy is heavily dependent impairs a treating practitioner’s
objectivity. When clinical witnesses refuse to make such
acknowledgments, no tactical harm has been done as a result of one’s
having asked. Any reasonable jurist will see such denials for what they
are -- reflexively offered but baseless reassurances of objectivity.
Formulate questions that will elicit from an honest evaluator an
acknowledgment of the known methodological limitations inherent in
evaluations of comparative custodial suitability. For example, one of
the most significant sources of error inherent in any forensic
evaluation (no matter how carefully it has been conducted) is that any
assessment involves sampling. One does not observe individuals during
all their waking hours, in a variety of contexts, and over a prolonged
period of time. Litigants are observed for a few brief periods,
ordinarily in the office of the mental health professional performing
the evaluation. Evaluators are, in essence, observing samples of each
litigant’s behavior. In opinion polling, if the sample (those actually
polled) has been constructed appropriately, the sample is deemed
representative of the population from which it has been drawn and the
findings can be generalized; that is, it is reasonable to infer that the
opinions expressed by those who comprise the sample mirror (within some
margin of error) the opinions held by those who comprise the broader
population from which the sample was drawn. Within the context of
assessment, the periods of time during which evaluators observe,
interview, and test individuals constitute samples.
With an awareness of methodological shortcoming such as that described
above, an attorney can ask: “Is it not true that . . . .?” While I am
aware of the conventional wisdom that, in cross-examining a witness, it
is risky to pose questions to which one does not already know the
answer, the risk here is minimal. When attorneys, in framing their
questions, describe commonly known deficiencies in our methods,
evaluators do little but undermine their own credibility if they assert
that the problems referenced in the inquiry have had no adverse effect
upon the reliability or validity of the information gathered by them.
Summary
Though attorneys are
not diffident in most matters, the deference displayed toward
court-appointed experts is frequently unwarranted. First,
court-appointment does not guarantee either objectivity or impartiality.
Second, the methodological integrity of an evaluation is more strongly
influenced by evaluator training than by purity of motive. Some of the
most egregious procedural errors have been made by evaluators with a
passionate concern for the well-being of children. Be wary of crusaders
and saviors.
As you prepare for
cross-examination, consider preparing a check-list that will serve to
remind you to explore each of the [ relevant areas. Unless you
are satisfied that there is no reason to do so, investigate the issues
that follow. (I) Education and Training. Has the expert received
appropriate professional preparation? In particular, is there suitable
education, training, and experience in the forensic arena? Is the
information that appears on the expert’s curriculum vitae
accurate and intended to promote an understanding of her accomplishments
or is it replete with exaggerated claims? An expert who exaggerates in
describing herself may exaggerate in describing the data that support
her opinions. (II) Responsiveness to Professional Standards. Has
the expert been responsive to the standards and guidelines promulgated
by his profession? Most importantly, has the expert performed only a
forensic function or has he attempted to mingle the clinical and
forensic roles? (III) Fairness. Do the procedures employed
suggest balance and fairness? Has there been ex parte
communication? Has one party been afforded more opportunities to present
her position? Have deficiencies in the favored parent been downplayed?
Have deficiencies in the non-favored parent been inordinately
emphasized? (IV) Use of Collateral Source Information. Has the
expert made appropriate use of collateral source information? Are there
records that should have been obtained and reviewed that do not appear
on the expert’s list of documents reviewed? Are there individuals from
whom the expert should have gathered information whose names do not
appear on the expert’s list of collateral sources? (V) Formal
Assessment. Were assessment instruments prudently selected? Were
tests administered under suitable conditions? Were all pertinent test
data considered? Is there any indication that data not supportive of the
expert’s position were ignored? Were the data independently interpreted
by the expert or did he appear to rely upon wisdom
generated by a computer? (VI) Observations. Were appropriate
observations made? Did the evaluator observe the parents interacting?
Did the evaluator observe each parent interacting with each child? If
home environment was raised as an issue, was a home visit made? If so,
were detailed notes taken? (VII) Bases for Opinions. Has the
evaluator made clear the manner in which her opinion was formulated?
(VIII) Sufficient Information. If the evaluator has refrained
from addressing the ultimate issue, has he provided all the information
needed by the court?
Opinions formed on
the basis of a well-conducted assessment should withstand the scrutiny
of a vigorous cross-examination. With only rare exceptions, competent
evaluators respond well to cross-examination. When an evaluator reacts
poorly to legitimate inquiry, you can be fairly certain that you’re
asking the right questions; uncovering flaws of which the trier of fact
should be made aware; and, serving the interests both of the child(ren)
and of your client.
Endnotes
(1) An article
headlined "A Resume Distinguished By What It Didn't Mention", appearing
in The New York Times of 9/6/01 (pp. 1ff.), describes the manner
in which an individual serving a 13-year sentence for the attempted
murder of his wife applied for and obtained board certification from the
American Board of Forensic Examiners and the American Board of Forensic
Medicine. The Times reports (p. C6): "In his application, he
[declared] that he was on a 'sabbatical' from his job . . . And he gave
a 'business address' that was actually that of the state prison."
(2) Attorneys who
have requested psychological test data from psychologists may have
encountered resistance. Currently, several of the documents guiding
psychological practice admonishes psychologists not to release test data
to individuals not qualified to interpret them. Those documents include
the following: Committee on Legal Issues, American Psychological
Association (1996). [ Strategies for private practitioners coping
with subpoenas or compelled testimony for client records or test data.
Professional Psychology: Research and Practice, 27,
245-251; Committee on Psychological Tests and Assessment, American
Psychological Association (1996). Statement on the disclosure of test
data. American Psychologist, 51:6, 644-648; <> As this article
is being written, however, the American Psychological Association is in
the final stages of revising its Ethics Code. Though there is some
strong opposition to removing the aforementioned restriction on the
release of test data, the most recent draft (draft # 5) provides for the
release of test data to attorneys. Even if the position of the APA
doesn’t change, it is still advisable to aggressively seek production of
the entire file. Ordinarily, persistence brings success.
(3)
Arkes, H. R. (1981). Impediments to accurate clinical judgment and
possible ways to minimize their impact. Journal of Consulting and
Clinical Psychology, 49, 323-330; Borum, R., Otto, R. K., & Golding,
S. (1993). Improving clinical judgment and decision making in forensic
evaluation. Journal of Psychiatry and Law, 21, 35-76; Garb, H. N.
(1994). Cognitive heuristics and biases in personality assessment. In L.
Heath, R. S. Tindale, J. Edwards, E. Posavac, F. Bryant, E. Henderson,
Y. Suarez-Balcazar, & J Myers (Eds.), Applications of heuristics and
biases to social issues (pp. 73-90). NY: Plenum.
(4) Leeper, R. W. (1935). A
study of a neglected portion of the field of learning: The development
of sensory organization. Journal of Genetic Psychology, 46,
41-75.
(5) For a
detailed discussion, refer to Wilder, J. A. (2000). Evaluating the
evaluator: The lawyer’s view. Family Advocate, 23:1, 25-27.
(6) Important documents that guide mental health professionals involved
in custody-related work include the following: American Academy of Child
and Adolescent Psychiatry Practice Parameters for Child Custody
Evaluations (1997). Journal of the American Academy of Child and
Adolescent Psychiatry, 36:10 (supplement), 57S-68S; American
Educational Research Association, American Psychological Association &
National Council on Measurement in Education (1999).
Standards
for educational and psychological testing.
(2nd ed.) Washington, DC: American Psychological
Association;
American Psychological Association (1974). Standards for Providers of
Psychological Services. Washington, DC: Author; American
Psychological Association (1987). General Guidelines for Provision of
Psychological Services. Washington, DC: Author; American
Psychological Association (1992). Ethical principles of psychologists
and code of conduct. American Psychologist, 47, 1597-1611;
American Psychological Association (1993). Record keeping
guidelines. Washington, DC: Author;
Association of Family and Conciliation Courts (1994). Model standards
of practice for child custody evaluation. Madison, WI: Author;
Committee on Ethical Guidelines for Forensic Psychologists (1991).
Specialty Guidelines for Forensic Psychologists. Law and Human
Behavior, 15:6, 655 – 665;
Committee on
Professional Practice and Standards, American Psychological Association
(1994). Guidelines for child custody evaluations in divorce proceedings.
American Psychologist, 49, 677-680; Interdisciplinary Committee
on Child Custody (1986). Recommendations for child custody evaluation
regulation. Denver: Author. Additionally, several state
regulatory agencies have promulgated guidelines in which appropriate and
inappropriate custody evaluation procedures are described. Attorneys
should ascertain whether or not the state in which they practice has
issued such guidelines.
(7) Committee on
Professional Practice and Standards, American Psychological Association
(1994). Guidelines for child custody evaluations in divorce proceedings.
American Psychologist, 49, 677-680
(8) Ackerman, M. J.
& Ackerman, M. C. (1997). Custody evaluation practices: A survey of
experienced professionals (revisited). Professional Psychology:
Research and Practice, 28, 137-145.
(9) Imwinkelried, E. W. (1992). The methods of attacking scientific
evidence (2nd ed.). Charlottesville, VA: Michie.
(10)
Anastasi, A. (1988). Psychological testing (6th ed.). New York:
Macmillan.
(11)
National Interdisciplinary Colloquium on Child Custody (1998). Legal
and mental health perspectives on child custody law: A deskbook for
judges.
Danvers, MA: Westgroup, p. 369.
(12) ibid.
(13)
LaFortune, K. A. & Carpenter, B.N. (1998). Custody evaluations: A survey
of mental health professionals. Behavioral sciences and the law, 16,
207-224, p. 222.
(14) ibid.
(15)
ibid.
(16) Heilbrun, K. (1995). Child custody evaluation: Critically assessing
mental health experts and psychological tests. Family Law Quarterly,
29, 63-78.
(17) Knoff,
H. M. & Prout, H. T. (1985). Kinetic Drawing System for Family and
School.
Los Angeles: Western Psychological Services.
(18) Holmes,
O. W. (1918). Interview, 32 Harvard Law Review 40,
41-42.
(19) Daubert v.
Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993)
(20)
Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d.
1311 (9th Cir. 1995).
(21) op.cit.,
at 1316
(22)
New Jersey’s Board of Psychological Examiners has distributed guidelines
in which it is suggested that formulating an opinion with respect to an
earlier evaluation might be done by means of a file review rather than
by subjecting the family members to an additional evaluation. Refer to
Board of Psychological Examiners (1993). Specialty Guidelines for
Psychologists Custody/Visitation Evaluations. Newark: Division of
Consumer Affairs, N. J. Dept. of Law and Public Safety.
(23) Appelbaum, P. (1997). Ethics in evolution: The
incompatibility of clinical and forensic functions, American Journal
of Psychiatry, 154,
445-446; Clark, C.R., (1990). Agreeing to be an expert
witness: Considerations of competence and role integrity.
Register Report, 16:2, 4-6; Greenberg, S. A. & Shuman, D. W.
(1997). Irreconcilable conflict between therapeutic and forensic roles.
Professional Psychology: Research and Practice, 28, 1; Strasburger,
L., Gutheil, T., & Brodsky, A. (1997). On wearing two hats: Role
conflict in serving as both psychotherapist and expert witness,
American Journal of Psychiatry, 154, 448-456.
Author
contact information:
David A. Martindale,
Ph.D., ABPP (forensic)
Diplomate, American Board of Professional Psychology
1 Jenni Lane,
Morristown, NJ 07960
Telephone and fax:
973 – 984 – 7808
e-mail:
david@damartindale.com
website:
www.damartindale.com
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