Psychological Experts and Trial Tactics

Unbundling Tasks

Though no data have been published concerning the financial management methods employed by forensic psychological consultants, anecdotal evidence suggests that, far more often than not, review tasks and post-review tasks are clumsily linked, as are the payment arrangements for those tasks. I propose that attorneys and the consultants whom they retain carefully delineate the work product review task from whatever post-review tasks might follow.

Manifestations of foolishness are seen in all professions. The foolishness displayed by some forensic psychologists is often matched by the foolishness of those who retain them. When attorneys retain forensic psychological consultants to conduct work product reviews, it is shortsighted (and, therefore, foolish) to communicate a desire to be provided only with information and perspectives that support the positions being taken by the retaining attorneys. When attorneys orally communicate a desire to be given only the “good news” (the deficiencies found in unfavorable reports and the gems found in favorable reports), financial self-interest will lead many (if not most) reviewers to provide what the retaining attorneys seek.

The Task of the Reviewer

It is advantageous both to attorneys and to reviewers when the reviewer's task is conducted in accordance with the terms of a written agreement entered into before any case-specific discussion occurs. In an agreement to conduct a work product review, it should be made clear that the reviewer will: 1) formulate preliminary opinions concerning the work product; 2) orally communicate those opinions to the retaining attorney; 3) charge for time expended, subject to a non-refundable minimum; and 4) discuss the possibility of post-review services, and, if appropriate, enter into a separate written agreement regarding post-review services, only after the review has been completed. In order to avoid misunderstandings, the scope of the reviewer's task should be defined.

Using an evaluator's report (and, where available, other available documents) the forensic psychological consultant performing a work product review will formulate opinions concerning: 1) the evaluator's adherence (or lack thereof) to statutory requirements, professional standards, and generally accepted practice guidelines; 2) the methodological integrity of the evaluative process, as outlined in the report; 3) the appropriateness of any formal assessment procedures employed; 4) the accuracy of any data interpretations offered; 5) the degree to which impressions described and perspectives communicated are consistent with the information provided; 6) The sufficiency of explanatory statements concerning the manner in which weight was assigned to different data, particularly where discrepant data are involved; 7) the logical nexus between the information, impressions, and perspectives communicated within the body of the report and the opinions expressed at the conclusion of the report; 8) the degree to which the evaluator appears to have drawn upon psychology's established knowledge base in formulating his/her opinions; and 9) the degree to which opinions offered are supported by data that have been articulated in the body of the report.

In considering the work being reviewed, reviewers examine only that which was available to the evaluator. They do not endeavor to secure information that was not available to the evaluator. Reviewers do not meet with litigants for the purpose of assessing their credibility, formulating opinions concerning their parenting strengths and deficiencies, or formulating opinions concerning the validity of positions being taken by the litigants. Because reviewers are not functioning as second evaluators and because the responsible expression of opinions concerning the issues in dispute would require the completion of a well-conducted evaluation, they do not opine on the issues in dispute.

In a previous article in The Matrimonial Strategist [The Oz illusion: The expert behind the curtain. 24:7, 5-6] I advanced the position that “[r]eviewers seeking to secure additional information are aided in their search only by the retaining party. Thus, the newly acquired information is likely to be information that bolsters the position of the retaining party. An imbalance in information considered dramatically increases the probability that the reviewer's opinions will be flawed” (p. 6). I added that “more information does not provide a more sound foundation for opinion formulation if the information is skewed” (p. 6).

Show Me the Money

Attorneys seeking consultative input regarding reports filed by evaluators should anticipate that experienced reviewers will seek payment in advance for their services and will require the payment of a minimum, non-refundable fee. There are professional risks associated with performing work product reviews and it would be foolish for psychologists with established professional reputations to perform reviews of brief reports and to be compensated only for the actual time expended in performing their reviews. It has been my experience, and that of colleagues with whom I consult, that reviews are most frequently sought by attorneys who are hopeful that significant deficiencies will be identified. Most of the attorneys are experienced family law lawyers, Consequently, it should come as no surprise that, more often than not, when they believe that something is wrong, it is because something is wrong. So, what are the professional risks to the reviewer, alluded to above?

Though many evaluators respond to criticism of their work in a professionally appropriate manner, many others react quite poorly. Of those who react poorly, some appear to have decided that they may be able to intimidate potential critics by filing complaints against those who offer criticism. For that reason, when a forensic psychological consultant comments on the work of a colleague, exposure to risk commences the moment that the reviewer offers the first critical comment. Whether the reviewer offers extensive services and receives significant remuneration or offers one or two hours of consultative time, the risk is created that a complaint will be lodged against the reviewer. Even when complaints are without basis and are quickly dismissed, responding to complaints requires the expenditure of time, energy, and funds.

Retention Bias and the Testifying Expert

More unassailable truths include:

• Whether functioning as a retained expert or as a court-appointed expert, the primary obligation of a testifying expert is to assist the trier of fact.
• Psychological experts are expected to be aware of the sources of bias; to identify those sources that are reasonably foreseeable in a particular case; to take reasonable steps to eliminate bias where it is possible to do so; and, to take steps to reduce the impact of those biases the operation of which can be predicted.
• One more truth: Retention bias is among those that cannot be avoided.

There seems to be a reasonable consensus that opportunities to enhance personal wealth impair objectivity. Yes, even among trained professionals. Katie Watson, a bioethicist, commenting on referrals by physicians to diagnostic facilities partially owned by them, opined that physicians are “human beings, which means they're subject to subconscious influences and incentives, just like the rest of us” (quoted 5/2/10, in “The Ethicist,” a column written by Randy Cohen, appearing weekly in The New York Times Magazine).

Having faced the unfortunate reality that retention bias is unavoidable, it becomes the obligation of retained testifying experts and the attorneys who retain them to take reasonable steps to reduce the impact of retention bias. There will always be a subtle pressure to please those who have paid for our services and that pressure may operate while we are offering testimony. It is my contention, however, that the pressure to please those from whom fees have not yet been collected is far stronger than the pressure to please those from whom one has received payment prior to offering testimony. The second' and more significant ' source of pressure can be avoided by ensuring that, prior to testifying, an amount that represents fees for the anticipated time and foreseeable costs has been calculated, has been presented to the retaining attorney, and has been collected.

Section VII. D. of the Specialty Guidelines for Forensic Psychologists declares that testifying forensic psychologists are obligated to present their findings in a fair manner and to avoid either active or passive distortion. When testifying experts have no personal stake in the outcome, the probability that accurate testimony will be heard is increased. When financial arrangements are such that testifying experts will not be paid until their testimony has been given, the effects of retention bias are likely to be exacerbated. Whether or not there is a basis for apprehensiveness, testifying experts may feel that receipt of payment is contingent upon a testimonial performance that is satisfactory to the retaining attorney's client.

David Martindale, Ph.D., ABPP (forensic) a member of this newsletter's Board of Editors, board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].

The truth, the whole truth, etc.

In the spirit of the traditional testimonial oath, let us begin with some unassailable truths. First: The effectiveness of retained testifying experts is either enhanced by their perceived credibility or diminished by their perceived deceptiveness. Second: Retained testifying experts who assert that neither their findings nor their opinions might be affected by biases are either fools, liars, or lying fools. Third: The type of bias concerning which retained experts are most frequently questioned is retention bias. Fourth: It is in the interest of those who retain testifying experts to take all steps that can reasonably be taken to ensure that when those experts tell the whole truth in responding to questions about payment arrangements, the responses will serve to lessen, not heighten, whatever concerns might exist regarding the role of retention bias.

Since this article focuses the reader's attention to the importance of the whole truth, it is appropriate that to acknowledge that the helpful perspective to be communicated in this article is one that, if digested, accepted, and acted upon, will be helpful to the author, as an expert, as well as to the readers.

Unbundling Tasks

Though no data have been published concerning the financial management methods employed by forensic psychological consultants, anecdotal evidence suggests that, far more often than not, review tasks and post-review tasks are clumsily linked, as are the payment arrangements for those tasks. I propose that attorneys and the consultants whom they retain carefully delineate the work product review task from whatever post-review tasks might follow.

Manifestations of foolishness are seen in all professions. The foolishness displayed by some forensic psychologists is often matched by the foolishness of those who retain them. When attorneys retain forensic psychological consultants to conduct work product reviews, it is shortsighted (and, therefore, foolish) to communicate a desire to be provided only with information and perspectives that support the positions being taken by the retaining attorneys. When attorneys orally communicate a desire to be given only the “good news” (the deficiencies found in unfavorable reports and the gems found in favorable reports), financial self-interest will lead many (if not most) reviewers to provide what the retaining attorneys seek.

The Task of the Reviewer

It is advantageous both to attorneys and to reviewers when the reviewer's task is conducted in accordance with the terms of a written agreement entered into before any case-specific discussion occurs. In an agreement to conduct a work product review, it should be made clear that the reviewer will: 1) formulate preliminary opinions concerning the work product; 2) orally communicate those opinions to the retaining attorney; 3) charge for time expended, subject to a non-refundable minimum; and 4) discuss the possibility of post-review services, and, if appropriate, enter into a separate written agreement regarding post-review services, only after the review has been completed. In order to avoid misunderstandings, the scope of the reviewer's task should be defined.

Using an evaluator's report (and, where available, other available documents) the forensic psychological consultant performing a work product review will formulate opinions concerning: 1) the evaluator's adherence (or lack thereof) to statutory requirements, professional standards, and generally accepted practice guidelines; 2) the methodological integrity of the evaluative process, as outlined in the report; 3) the appropriateness of any formal assessment procedures employed; 4) the accuracy of any data interpretations offered; 5) the degree to which impressions described and perspectives communicated are consistent with the information provided; 6) The sufficiency of explanatory statements concerning the manner in which weight was assigned to different data, particularly where discrepant data are involved; 7) the logical nexus between the information, impressions, and perspectives communicated within the body of the report and the opinions expressed at the conclusion of the report; 8) the degree to which the evaluator appears to have drawn upon psychology's established knowledge base in formulating his/her opinions; and 9) the degree to which opinions offered are supported by data that have been articulated in the body of the report.

In considering the work being reviewed, reviewers examine only that which was available to the evaluator. They do not endeavor to secure information that was not available to the evaluator. Reviewers do not meet with litigants for the purpose of assessing their credibility, formulating opinions concerning their parenting strengths and deficiencies, or formulating opinions concerning the validity of positions being taken by the litigants. Because reviewers are not functioning as second evaluators and because the responsible expression of opinions concerning the issues in dispute would require the completion of a well-conducted evaluation, they do not opine on the issues in dispute.

In a previous article in The Matrimonial Strategist [The Oz illusion: The expert behind the curtain. 24:7, 5-6] I advanced the position that “[r]eviewers seeking to secure additional information are aided in their search only by the retaining party. Thus, the newly acquired information is likely to be information that bolsters the position of the retaining party. An imbalance in information considered dramatically increases the probability that the reviewer's opinions will be flawed” (p. 6). I added that “more information does not provide a more sound foundation for opinion formulation if the information is skewed” (p. 6).

Show Me the Money

Attorneys seeking consultative input regarding reports filed by evaluators should anticipate that experienced reviewers will seek payment in advance for their services and will require the payment of a minimum, non-refundable fee. There are professional risks associated with performing work product reviews and it would be foolish for psychologists with established professional reputations to perform reviews of brief reports and to be compensated only for the actual time expended in performing their reviews. It has been my experience, and that of colleagues with whom I consult, that reviews are most frequently sought by attorneys who are hopeful that significant deficiencies will be identified. Most of the attorneys are experienced family law lawyers, Consequently, it should come as no surprise that, more often than not, when they believe that something is wrong, it is because something is wrong. So, what are the professional risks to the reviewer, alluded to above?

Though many evaluators respond to criticism of their work in a professionally appropriate manner, many others react quite poorly. Of those who react poorly, some appear to have decided that they may be able to intimidate potential critics by filing complaints against those who offer criticism. For that reason, when a forensic psychological consultant comments on the work of a colleague, exposure to risk commences the moment that the reviewer offers the first critical comment. Whether the reviewer offers extensive services and receives significant remuneration or offers one or two hours of consultative time, the risk is created that a complaint will be lodged against the reviewer. Even when complaints are without basis and are quickly dismissed, responding to complaints requires the expenditure of time, energy, and funds.

Retention Bias and the Testifying Expert

More unassailable truths include:

• Whether functioning as a retained expert or as a court-appointed expert, the primary obligation of a testifying expert is to assist the trier of fact.
• Psychological experts are expected to be aware of the sources of bias; to identify those sources that are reasonably foreseeable in a particular case; to take reasonable steps to eliminate bias where it is possible to do so; and, to take steps to reduce the impact of those biases the operation of which can be predicted.
• One more truth: Retention bias is among those that cannot be avoided.

There seems to be a reasonable consensus that opportunities to enhance personal wealth impair objectivity. Yes, even among trained professionals. Katie Watson, a bioethicist, commenting on referrals by physicians to diagnostic facilities partially owned by them, opined that physicians are “human beings, which means they're subject to subconscious influences and incentives, just like the rest of us” (quoted 5/2/10, in “The Ethicist,” a column written by Randy Cohen, appearing weekly in The New York Times Magazine).

Having faced the unfortunate reality that retention bias is unavoidable, it becomes the obligation of retained testifying experts and the attorneys who retain them to take reasonable steps to reduce the impact of retention bias. There will always be a subtle pressure to please those who have paid for our services and that pressure may operate while we are offering testimony. It is my contention, however, that the pressure to please those from whom fees have not yet been collected is far stronger than the pressure to please those from whom one has received payment prior to offering testimony. The second' and more significant ' source of pressure can be avoided by ensuring that, prior to testifying, an amount that represents fees for the anticipated time and foreseeable costs has been calculated, has been presented to the retaining attorney, and has been collected.

Section VII. D. of the Specialty Guidelines for Forensic Psychologists declares that testifying forensic psychologists are obligated to present their findings in a fair manner and to avoid either active or passive distortion. When testifying experts have no personal stake in the outcome, the probability that accurate testimony will be heard is increased. When financial arrangements are such that testifying experts will not be paid until their testimony has been given, the effects of retention bias are likely to be exacerbated. Whether or not there is a basis for apprehensiveness, testifying experts may feel that receipt of payment is contingent upon a testimonial performance that is satisfactory to the retaining attorney's client.

David Martindale, Ph.D., ABPP (forensic) a member of this newsletter's Board of Editors, board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].