Working Well with Custody Experts

When attorneys ask mental health experts' opinions, the experience is often frustrating, and the experts are less helpful than the attorneys had hoped. In an earlier article, we outlined the qualification and background of mental health experts. In this follow-up, we explore some problems that arise between experts and attorneys ' and offer some solutions.

Cultural Differences

Lawyers and mental health experts come from different cultures. Many difficulties they encounter in working together result from failures to appreciate and address these differences. Keeping these cultural differences in mind, attorneys can go a long way in reducing the frustrations they often encounter.

Advocacy and Ethics

While attorneys may differ about how 'vigorous' to be in advocating for clients, advocacy is central to the lawyer's professional identity and ethic. The important framework for this ethic is the law, with its opposing sides and the advocacy role of the attorney. In contrast, the custody evaluator's principle role is to provide impartial expert information to the court. Most evaluators were trained and continue to regard themselves principally as healers, so they are very reluctant to do anything that might cause harm. Their main frame of reference is the knowledge base of their profession, which combines the experience passed down by their teachers, their personal professional experience, and research studies. They are constrained to varying degrees by laws governing their practice (including the threat of malpractice suits), professional ethics codes, practice guidelines, and by less formal but still powerful norms of professional conduct.

While both lawyers and experts value their reputations, the basis for these reputations are different. Lawyers' reputations rest largely on their effectiveness as advocates, not their impartiality. While integrity is important in any professional reputation, competence as an advocate is primary. The expert's entire effectiveness rests on being credible. His or her integrity must be primary, and any advocacy role is absolutely inappropriate and will undermine his/her effectiveness. The mental health expert may often seem over-scrupulous to the frustrated attorney caught up in his or her role of advocate, but the expert's capacity to work in legal contexts rests on scrupulous integrity.

Respecting Time Commitments

Most experts derive most of their income, and indeed their expertise, from clinical practice. This commitment to patient care can create
problems when the demands for time to make court appearances or the urgency to complete evaluations conflict with time set aside to see patients. Attorneys need to recognize that time management issues are very different for experts and attorneys and respect the different constraints on the experts' time. Giving experts the longest possible notice of court appearances will make it much easier for the expert to appear prepared and cooperative.

Money Woes

Lawyers and evaluators often differ in their attitudes toward money. Lawyers often do not expect to be paid the full amount of their bills and adjust their billing practices accordingly. Evaluators anticipate that their bills will be fully paid, and use billing practices consistent with that expectation. As a result, lawyers may be surprised at the degree of distress that results when evaluators are paid less than the amount of the bill, or paid later than anticipated.

What Did You Say? Coming from different professional cultures, lawyers and evaluators may find that they often use the same words to mean different things. The resulting confusion can lead to great difficulties. While attorneys refer to the persons being evaluated as 'patients,' and evaluators as 'therapists,' it is best to avoid these terms, because they indicate a doctor-patient relationship exists between the evaluator and the subject. The doctor-patient relationship carries many duties and is in many ways inconsistent with the evaluator's role. Other technical terms often have different meanings in law and the mental health professions. In law, a test is 'reliable' if it accurately measures what it is supposed to measure; in the mental health professions, 'reliability' refers to the very different issue of the extent to which test results remain stable in various contexts. What lawyers call reliability, mental health professionals call validity. Stay alert for miscommunications and spare everyone difficulty by clarifying terms as quickly as possible.

Getting the Best Report

Unfortunately, custody evaluations are offered by individuals of widely varying training and competence; some have no specific training at all, and others have devoted years to becoming truly expert. Obviously, when possible, attorneys should choose to work with able evaluators. But if you cannot control who the evaluator is, at least try to get as clear a picture as possible of his or her level of expertise, and adjust your interactions with the evaluator accordingly. Many inexperienced evaluators want to learn how to become expert. They may want to consult with experienced evaluators or you can suggest that they consult the following books: Lubet S: Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them. Notre Dame, IN; National Institute for Trial Advocacy: 1999. Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC; American Psychological Association (APA): 1999.

Similarly, attorneys should be frank about their own level of expertise on mental health issues so that the evaluator can provide information in a useful way. A common problem arises when attorneys think they know more than they do, only to discover in the middle of a trial that the expert is talking about matters the attorney does not understand.

The Contract

Solve problems before they start. Making adequate arrangements up front is the key to avoiding many of the problems between attorneys and experts. Never name an expert without his/her agreement. Surprisingly often, attorneys name experts they have neither retained nor consulted. Not only is this practice questionable in terms of ethics, it creates enormous ill will, since the experts so named may rightly believe that the very use of their names has given the attorney an advantage in settlement. Of course it goes without saying that without speaking directly with the quoted expert, you cannot be certain about his/her views.

• Settle on the Expert's Task in Advance. Too often, court orders and retainer agreements are vague and leave the duties and expectations of the expert in doubt. Terms like 'custody evaluation,' and 'psychological evaluation' cover a plethora of potential activities. Sometimes there is a disparity between the evaluation ordered and the matter before the court. This results in a situation that, for example, discusses matters that have little to do with the child's best interests, eg, psychiatric diagnoses that are not relevant to parenting. Similarly, unless the scope of the examination is spelled out, the mental health professional may fail to address important matters. Although domestic violence is known to have a serious impact on children, it is not rare that custody evaluators fail to address this issue because it is brought up by neither party, or it is mistakenly thought by the custody evaluator to be irrelevant to the court's findings.
• Methods. An ideal order specifies the questions to be answered by the evaluator, and may appropriately specify at least some of the methods to be used for the evaluation. If there are likely to be difficulties in the evaluation process, everyone is far better off if they are addressed before the evaluation is begun. For example, especially in cases of alleged alienation or abuse, many examiners now regard it as important to audiotape or videotape their interviews with the parties and the children. Some attorneys and litigants find this procedure obnoxious. Substantial difficulty and wasted time can be avoided by resolving the issue prior to the interviews. Other questions as to what methods the evaluator should use are more problematic. He or she is professionally obligated to employ methods that provide valid and reliable results, but the legal context of the evaluation may limit that ability. A common source of difficulty concerns the evidence and information on which the examiner may rely. If there is any question about these matters, getting them clear in the initial orders and agreements spares everyone time and stress. When you retain a witness, spend adequate time working with that witness to draw up an appointment order that addresses every potentially problematic matter that either of you can think of. In working with the court's witness, a conference involving the attorneys, the witness, and possibly the judge provides an opportunity to create orders that provide clear guidelines for the evaluation.
  

More Money Woes

Pretending that money will never be a problem is an invitation to difficulty. Probably the greatest source of stress between attorneys and experts is the experts' fees. Put crassly, it is common that expert and attorney are in competition for a limited pot of money, so that the attorney wants to hold down experts' fees as much as possible. When attorney and expert are bargaining about fees on the courthouse steps, everyone is distracted from the main task at hand, which is providing the court with expert information. Our advice to attorneys is to find out up front how much the evaluator anticipates the cost will be, and what the expected payment arrangements are. If any of this is troublesome, the time to negotiate is before the work begins, not on the morning of trial.

Experts understandably want to be paid at customary rates, and to have sufficient time to do their jobs well. All kinds of emotional factors enter into this. For example, many experienced experts charge hourly rates substantially in excess of those charged by family lawyers. This can lead to a sense of indignation on the attorney's part. Additionally, mental health professionals charge for time on a different bases than most attorneys. For example, most mental health professionals charge for time put aside for an activity, such as court appearances or client interviews, even though the activity has been cancelled. Various mental health professionals require varying lead times to avoid this fee.

The Attorney's Role in the Evaluation

• Neatness Counts. Experts rely on interviews, observations, documented evidence, and their professional knowledge to arrive at opinions. How you facilitate or impede the expert's data collection can make a significant difference in the attitude toward you and your client. The expert who sets to work with a neatly put-together indexed notebook of legible documents, meaningfully separated into sections by dividers and arranged in chronological order, is likely to think benignly of the client whose attorney provided the notebook ' and to regard the attorney as a professional. Confronted with a jumble of hard-to-read papers, the expert is forced to spend more time (and hence more of your client's money) organizing them into a semblance of order, which helps no one.
• Scheduling. Do your best to ease your client's scheduling with the expert. The easiest approach, which is most likely to leave a positive impression, is simply to ask the expert for appointment times, and have your client attend at these times. Let your client know that the expert will probably need to see him or her during business hours, and that it may be necessary to take the children out of school for some of the appointments. Make sure your client understands the importance of being on time for the appointments. Many evaluators schedule appointments back-to-back, so that significant lateness either entails additional appointments, or loss of valuable time with the evaluator.
• Appropriate Preparation.  Preparing clients for interviews and observations can sometimes be a touchy business. Evaluators often look for evidence that the litigants have been pre-coached with 'good' answers to questions, or worse yet, have been coached in taking standardized tests. Inappropriate preparation can actually hurt your client. On the other hand, most evaluators understand that the interviews and observations are stressful and their findings important. The client should know what to expect during the interview or observation. This information can be provided by the attorney or a consulting mental health professional. It is perfectly appropriate for the litigant to have been encouraged to think through issues that are relevant to custody arrangements in advance of the meeting, to be aware that the evaluator is likely to ask personal questions, and to have been made aware that there may be systematic testing, some of which does not seem entirely relevant to custody matters to the lay person. If the sessions are to be recorded or videotaped, the client should know this in advance. Advising the client to be honest about his or her parenting skills, and to avoid attacking the other parent is also appropriate. Honesty is invariably the best policy, as evaluators are likely not only to disbelieve information coming from someone who has proven dishonest, but also to see the dishonesty as a manifestation of personality problems.
  

Swaying the Experts

It is only natural that attorneys continue to be advocates and hope to influence the opinions of custody evaluators. When this takes the form of providing the evaluator with adequate documentation and even straightforward descriptions of the client's point of view, it is likely to cause little problem. However, because their credibility rests on their integrity, evaluators are acutely sensitive to the problem of improper influence, and attempts to sway them are likely to put them on guard against the attorney. Custody evaluators are painfully aware that they are sometimes seen by their colleagues and the general public as 'whores of the court.' They also are bound by strict ethical standard to avoid bias as much as possible.

The Report

Expert opinions on custody are usually communicated by means of written reports. Experts are often unsure of what sort of report will prove the most useful in each case. Some judges can barely get through two or three pages of an evaluation, so that the report must be brief and to the point. Other judges expect exhaustive descriptions. In some jurisdictions, only information contained in the written report is admissible, so the expert must include everything that might be relevant. Other jurisdictions are extremely liberal in this regard. Experts are generally left in the position of guessing what information should be included and/or omitted from their reports. Providing them with reasonable guidelines in advance can greatly help your cause.

Part Two of this article, appearing in the April Issue, discusses preparation for trial, including strategic goals, basic court etiquette, the expert's testimony, and what to expect during cross-examination.

When attorneys ask mental health experts' opinions, the experience is often frustrating, and the experts are less helpful than the attorneys had hoped. In an earlier article, we outlined the qualification and background of mental health experts. In this follow-up, we explore some problems that arise between experts and attorneys ' and offer some solutions.

Cultural Differences

Lawyers and mental health experts come from different cultures. Many difficulties they encounter in working together result from failures to appreciate and address these differences. Keeping these cultural differences in mind, attorneys can go a long way in reducing the frustrations they often encounter.

Advocacy and Ethics

While attorneys may differ about how 'vigorous' to be in advocating for clients, advocacy is central to the lawyer's professional identity and ethic. The important framework for this ethic is the law, with its opposing sides and the advocacy role of the attorney. In contrast, the custody evaluator's principle role is to provide impartial expert information to the court. Most evaluators were trained and continue to regard themselves principally as healers, so they are very reluctant to do anything that might cause harm. Their main frame of reference is the knowledge base of their profession, which combines the experience passed down by their teachers, their personal professional experience, and research studies. They are constrained to varying degrees by laws governing their practice (including the threat of malpractice suits), professional ethics codes, practice guidelines, and by less formal but still powerful norms of professional conduct.

While both lawyers and experts value their reputations, the basis for these reputations are different. Lawyers' reputations rest largely on their effectiveness as advocates, not their impartiality. While integrity is important in any professional reputation, competence as an advocate is primary. The expert's entire effectiveness rests on being credible. His or her integrity must be primary, and any advocacy role is absolutely inappropriate and will undermine his/her effectiveness. The mental health expert may often seem over-scrupulous to the frustrated attorney caught up in his or her role of advocate, but the expert's capacity to work in legal contexts rests on scrupulous integrity.

Respecting Time Commitments

Most experts derive most of their income, and indeed their expertise, from clinical practice. This commitment to patient care can create
problems when the demands for time to make court appearances or the urgency to complete evaluations conflict with time set aside to see patients. Attorneys need to recognize that time management issues are very different for experts and attorneys and respect the different constraints on the experts' time. Giving experts the longest possible notice of court appearances will make it much easier for the expert to appear prepared and cooperative.

Money Woes

Lawyers and evaluators often differ in their attitudes toward money. Lawyers often do not expect to be paid the full amount of their bills and adjust their billing practices accordingly. Evaluators anticipate that their bills will be fully paid, and use billing practices consistent with that expectation. As a result, lawyers may be surprised at the degree of distress that results when evaluators are paid less than the amount of the bill, or paid later than anticipated.

What Did You Say? Coming from different professional cultures, lawyers and evaluators may find that they often use the same words to mean different things. The resulting confusion can lead to great difficulties. While attorneys refer to the persons being evaluated as 'patients,' and evaluators as 'therapists,' it is best to avoid these terms, because they indicate a doctor-patient relationship exists between the evaluator and the subject. The doctor-patient relationship carries many duties and is in many ways inconsistent with the evaluator's role. Other technical terms often have different meanings in law and the mental health professions. In law, a test is 'reliable' if it accurately measures what it is supposed to measure; in the mental health professions, 'reliability' refers to the very different issue of the extent to which test results remain stable in various contexts. What lawyers call reliability, mental health professionals call validity. Stay alert for miscommunications and spare everyone difficulty by clarifying terms as quickly as possible.

Getting the Best Report

Unfortunately, custody evaluations are offered by individuals of widely varying training and competence; some have no specific training at all, and others have devoted years to becoming truly expert. Obviously, when possible, attorneys should choose to work with able evaluators. But if you cannot control who the evaluator is, at least try to get as clear a picture as possible of his or her level of expertise, and adjust your interactions with the evaluator accordingly. Many inexperienced evaluators want to learn how to become expert. They may want to consult with experienced evaluators or you can suggest that they consult the following books: Lubet S: Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them. Notre Dame, IN; National Institute for Trial Advocacy: 1999. Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC; American Psychological Association (APA): 1999.

Similarly, attorneys should be frank about their own level of expertise on mental health issues so that the evaluator can provide information in a useful way. A common problem arises when attorneys think they know more than they do, only to discover in the middle of a trial that the expert is talking about matters the attorney does not understand.

The Contract

Solve problems before they start. Making adequate arrangements up front is the key to avoiding many of the problems between attorneys and experts. Never name an expert without his/her agreement. Surprisingly often, attorneys name experts they have neither retained nor consulted. Not only is this practice questionable in terms of ethics, it creates enormous ill will, since the experts so named may rightly believe that the very use of their names has given the attorney an advantage in settlement. Of course it goes without saying that without speaking directly with the quoted expert, you cannot be certain about his/her views.

• Settle on the Expert's Task in Advance. Too often, court orders and retainer agreements are vague and leave the duties and expectations of the expert in doubt. Terms like 'custody evaluation,' and 'psychological evaluation' cover a plethora of potential activities. Sometimes there is a disparity between the evaluation ordered and the matter before the court. This results in a situation that, for example, discusses matters that have little to do with the child's best interests, eg, psychiatric diagnoses that are not relevant to parenting. Similarly, unless the scope of the examination is spelled out, the mental health professional may fail to address important matters. Although domestic violence is known to have a serious impact on children, it is not rare that custody evaluators fail to address this issue because it is brought up by neither party, or it is mistakenly thought by the custody evaluator to be irrelevant to the court's findings.
• Methods. An ideal order specifies the questions to be answered by the evaluator, and may appropriately specify at least some of the methods to be used for the evaluation. If there are likely to be difficulties in the evaluation process, everyone is far better off if they are addressed before the evaluation is begun. For example, especially in cases of alleged alienation or abuse, many examiners now regard it as important to audiotape or videotape their interviews with the parties and the children. Some attorneys and litigants find this procedure obnoxious. Substantial difficulty and wasted time can be avoided by resolving the issue prior to the interviews. Other questions as to what methods the evaluator should use are more problematic. He or she is professionally obligated to employ methods that provide valid and reliable results, but the legal context of the evaluation may limit that ability. A common source of difficulty concerns the evidence and information on which the examiner may rely. If there is any question about these matters, getting them clear in the initial orders and agreements spares everyone time and stress. When you retain a witness, spend adequate time working with that witness to draw up an appointment order that addresses every potentially problematic matter that either of you can think of. In working with the court's witness, a conference involving the attorneys, the witness, and possibly the judge provides an opportunity to create orders that provide clear guidelines for the evaluation.
  

More Money Woes

Pretending that money will never be a problem is an invitation to difficulty. Probably the greatest source of stress between attorneys and experts is the experts' fees. Put crassly, it is common that expert and attorney are in competition for a limited pot of money, so that the attorney wants to hold down experts' fees as much as possible. When attorney and expert are bargaining about fees on the courthouse steps, everyone is distracted from the main task at hand, which is providing the court with expert information. Our advice to attorneys is to find out up front how much the evaluator anticipates the cost will be, and what the expected payment arrangements are. If any of this is troublesome, the time to negotiate is before the work begins, not on the morning of trial.

Experts understandably want to be paid at customary rates, and to have sufficient time to do their jobs well. All kinds of emotional factors enter into this. For example, many experienced experts charge hourly rates substantially in excess of those charged by family lawyers. This can lead to a sense of indignation on the attorney's part. Additionally, mental health professionals charge for time on a different bases than most attorneys. For example, most mental health professionals charge for time put aside for an activity, such as court appearances or client interviews, even though the activity has been cancelled. Various mental health professionals require varying lead times to avoid this fee.

The Attorney's Role in the Evaluation

• Neatness Counts. Experts rely on interviews, observations, documented evidence, and their professional knowledge to arrive at opinions. How you facilitate or impede the expert's data collection can make a significant difference in the attitude toward you and your client. The expert who sets to work with a neatly put-together indexed notebook of legible documents, meaningfully separated into sections by dividers and arranged in chronological order, is likely to think benignly of the client whose attorney provided the notebook ' and to regard the attorney as a professional. Confronted with a jumble of hard-to-read papers, the expert is forced to spend more time (and hence more of your client's money) organizing them into a semblance of order, which helps no one.
• Scheduling. Do your best to ease your client's scheduling with the expert. The easiest approach, which is most likely to leave a positive impression, is simply to ask the expert for appointment times, and have your client attend at these times. Let your client know that the expert will probably need to see him or her during business hours, and that it may be necessary to take the children out of school for some of the appointments. Make sure your client understands the importance of being on time for the appointments. Many evaluators schedule appointments back-to-back, so that significant lateness either entails additional appointments, or loss of valuable time with the evaluator.
• Appropriate Preparation.  Preparing clients for interviews and observations can sometimes be a touchy business. Evaluators often look for evidence that the litigants have been pre-coached with 'good' answers to questions, or worse yet, have been coached in taking standardized tests. Inappropriate preparation can actually hurt your client. On the other hand, most evaluators understand that the interviews and observations are stressful and their findings important. The client should know what to expect during the interview or observation. This information can be provided by the attorney or a consulting mental health professional. It is perfectly appropriate for the litigant to have been encouraged to think through issues that are relevant to custody arrangements in advance of the meeting, to be aware that the evaluator is likely to ask personal questions, and to have been made aware that there may be systematic testing, some of which does not seem entirely relevant to custody matters to the lay person. If the sessions are to be recorded or videotaped, the client should know this in advance. Advising the client to be honest about his or her parenting skills, and to avoid attacking the other parent is also appropriate. Honesty is invariably the best policy, as evaluators are likely not only to disbelieve information coming from someone who has proven dishonest, but also to see the dishonesty as a manifestation of personality problems.
  

Swaying the Experts

It is only natural that attorneys continue to be advocates and hope to influence the opinions of custody evaluators. When this takes the form of providing the evaluator with adequate documentation and even straightforward descriptions of the client's point of view, it is likely to cause little problem. However, because their credibility rests on their integrity, evaluators are acutely sensitive to the problem of improper influence, and attempts to sway them are likely to put them on guard against the attorney. Custody evaluators are painfully aware that they are sometimes seen by their colleagues and the general public as 'whores of the court.' They also are bound by strict ethical standard to avoid bias as much as possible.

The Report

Expert opinions on custody are usually communicated by means of written reports. Experts are often unsure of what sort of report will prove the most useful in each case. Some judges can barely get through two or three pages of an evaluation, so that the report must be brief and to the point. Other judges expect exhaustive descriptions. In some jurisdictions, only information contained in the written report is admissible, so the expert must include everything that might be relevant. Other jurisdictions are extremely liberal in this regard. Experts are generally left in the position of guessing what information should be included and/or omitted from their reports. Providing them with reasonable guidelines in advance can greatly help your cause.

Part Two of this article, appearing in the April Issue, discusses preparation for trial, including strategic goals, basic court etiquette, the expert's testimony, and what to expect during cross-examination.