Working Well with Custody Experts

Undoubtedly, mental health experts can play a key role in determining custody issues in the context of a divorce-if they are chosen carefully and then well prepared by the matrimonial attorney. Part One of this article (see March Issue) discussed some of the problems that may arise between mental health experts and attorneys due to differences regarding ethics, money and time commitments, and offered some solutions. Part two focuses on preparing the custody expert for trial.

The universal wisdom that adequate preparation is essential to good testimony is nowhere more applicable than in the context of expert testimony. There are several components to ensuring that the attorney derives the best possible results from the custody evaluator at trial:

Establishing a Strategic Communication Plan

In the courtroom, the attorney and expert must work well together if vital information is to be presented to the court. This means that the attorney needs to know what to ask and the expert needs to know how to respond in a clear, communicative fashion. Thus, it is imperative that the attorney and expert have enough time to prepare together.

Introducing the expert to the court should go beyond simply qualifying the expert. The judge needs to know why the expert should be believed. Similarly, the goal of direct-examination is not merely to get an opinion on the record but to communicate it in such a fashion that the judge is likely to adopt that opinion. Preparation for direct-examination should go beyond ensuring fluent responses to clear questions and editing particular questions and responses for clarity and incisiveness – it should involve a strategic communication plan.

Reviewing Court Etiquette

At the same time, it is important to review basic court etiquette, especially if the expert is relatively inexperienced. Remind the expert to give you time to finish a question. If the expert seems too loquacious or too taciturn, tell him/her so and help him/her rehearse a more effective style of testifying. Make sure the expert knows how to deal with questions by referring to notes, asking for clarifications of questions and taking a needed break. Unless you have worked with the expert before and know that he/she is at ease with courtroom mechanics, going into detail about these matters will be reassuring and helpful; on the other hand, failure to address them in advance can make for awkward moments — or worse — during testimony. Encourage the expert to familiarize him-/herself with the courtroom in advance of the trial. Remember that every surprise diminishes the expert's effectiveness. Not only is it an inauspicious beginning if the expert's first act is to struggle to figure out how to get to the witness stand or to react with visible surprise at a particularly dingy or grand courtroom, it often sets up a situation from which it is hard to recover.

Understanding His/Her Role

A common error made by psychological experts is to believe that the case rests much more on the expert's shoulders than it actually does. Wanting to be helpful, he/she may try to bring in testimony that is much better elicited from the parties. For example, the vivid descriptions of domestic violence that many victims and sometimes perpetrators give if correctly examined are far more powerful than the second-hand summaries provided by even the best expert. If you think it is wiser that an expert not address or go into detail about some matter, let the expert know that, and explain the reason for this decision.

Appraising the Judge/Jury

An honest appraisal of the judge and, when applicable, the jury, can be enormously helpful to the expert. The expert will, appropriately, talk in a very different manner to a judge who knows nothing about psychology and one who is highly sophisticated in this area. Obviously, the more you and the expert know about the judge's style, including the judge's idiosyncrasies, the more effective you both can be.

Allotting Sufficient Time for Testimony

Surprisingly often, lawyers fail to make realistic arrangements for the expert to be present in court or fail to ensure that the expert has put aside sufficient time for testimony. The expert who is sitting on the witness stand picturing distressed patients anxiously sitting in his or her waiting room, or trying to figure out how to contact patients to reschedule appointments, is not fully focused on the work at hand. Even if it increases the cost of retaining the expert, encourage setting aside adequate time to complete the testimony. In some jurisdictions, expert testimony is continued, sometimes over the course of several months, when insufficient time is allotted to it. The result is almost always poor as the judge, lawyers and expert have all lost track of what was going on and issues that could have been briskly addressed are hard to resurrect.

The article concludes in the May Issue with a discussion of direct and cross-examination.

Undoubtedly, mental health experts can play a key role in determining custody issues in the context of a divorce-if they are chosen carefully and then well prepared by the matrimonial attorney. Part One of this article (see March Issue) discussed some of the problems that may arise between mental health experts and attorneys due to differences regarding ethics, money and time commitments, and offered some solutions. Part two focuses on preparing the custody expert for trial.

The universal wisdom that adequate preparation is essential to good testimony is nowhere more applicable than in the context of expert testimony. There are several components to ensuring that the attorney derives the best possible results from the custody evaluator at trial:

Establishing a Strategic Communication Plan

In the courtroom, the attorney and expert must work well together if vital information is to be presented to the court. This means that the attorney needs to know what to ask and the expert needs to know how to respond in a clear, communicative fashion. Thus, it is imperative that the attorney and expert have enough time to prepare together.

Introducing the expert to the court should go beyond simply qualifying the expert. The judge needs to know why the expert should be believed. Similarly, the goal of direct-examination is not merely to get an opinion on the record but to communicate it in such a fashion that the judge is likely to adopt that opinion. Preparation for direct-examination should go beyond ensuring fluent responses to clear questions and editing particular questions and responses for clarity and incisiveness – it should involve a strategic communication plan.

Reviewing Court Etiquette

At the same time, it is important to review basic court etiquette, especially if the expert is relatively inexperienced. Remind the expert to give you time to finish a question. If the expert seems too loquacious or too taciturn, tell him/her so and help him/her rehearse a more effective style of testifying. Make sure the expert knows how to deal with questions by referring to notes, asking for clarifications of questions and taking a needed break. Unless you have worked with the expert before and know that he/she is at ease with courtroom mechanics, going into detail about these matters will be reassuring and helpful; on the other hand, failure to address them in advance can make for awkward moments — or worse — during testimony. Encourage the expert to familiarize him-/herself with the courtroom in advance of the trial. Remember that every surprise diminishes the expert's effectiveness. Not only is it an inauspicious beginning if the expert's first act is to struggle to figure out how to get to the witness stand or to react with visible surprise at a particularly dingy or grand courtroom, it often sets up a situation from which it is hard to recover.

Understanding His/Her Role

A common error made by psychological experts is to believe that the case rests much more on the expert's shoulders than it actually does. Wanting to be helpful, he/she may try to bring in testimony that is much better elicited from the parties. For example, the vivid descriptions of domestic violence that many victims and sometimes perpetrators give if correctly examined are far more powerful than the second-hand summaries provided by even the best expert. If you think it is wiser that an expert not address or go into detail about some matter, let the expert know that, and explain the reason for this decision.

Appraising the Judge/Jury

An honest appraisal of the judge and, when applicable, the jury, can be enormously helpful to the expert. The expert will, appropriately, talk in a very different manner to a judge who knows nothing about psychology and one who is highly sophisticated in this area. Obviously, the more you and the expert know about the judge's style, including the judge's idiosyncrasies, the more effective you both can be.

Allotting Sufficient Time for Testimony

Surprisingly often, lawyers fail to make realistic arrangements for the expert to be present in court or fail to ensure that the expert has put aside sufficient time for testimony. The expert who is sitting on the witness stand picturing distressed patients anxiously sitting in his or her waiting room, or trying to figure out how to contact patients to reschedule appointments, is not fully focused on the work at hand. Even if it increases the cost of retaining the expert, encourage setting aside adequate time to complete the testimony. In some jurisdictions, expert testimony is continued, sometimes over the course of several months, when insufficient time is allotted to it. The result is almost always poor as the judge, lawyers and expert have all lost track of what was going on and issues that could have been briskly addressed are hard to resurrect.

The article concludes in the May Issue with a discussion of direct and cross-examination.