A Psychologist's Take on Trial Tactics

There are significant jurisdictional differences in the wording of statutes addressing the obligation of attorneys to provide information to their adversaries regarding the anticipated testimony to be offered by retained experts. California's Family Code [217 (c)] requires “a brief description of the anticipated testimony.” New York's Civil Practice Law and Rules (CPLR) 3101 (d) requires that disclosure be “in reasonable detail.”

It is usually the desire of attorneys to provide as little information to their adversaries as possible. The generally agreed-upon perspective seems to be that when, in response to discovery demands, attorneys provide significantly detailed information, they enable their adversaries to prepare more effectively for trial. Detailed information provided to an adversary regarding an expert witness's anticipated testimony enables the adversary to explore the strengths and deficiencies in the positions that the witness has stated
s/he will articulate.

Though the logic that underlies the decision to be sparing in the information that one shares with an adversary seems sound, it may backfire. Some judges will limit an expert's testimony to the topics specifically addressed in the disclosure document. Additionally, where there is a desire to achieve settlement and an adversary seems unwilling to settle on terms with which you and your client can be comfortable, the adversary's dug-in heels may be loosened when your 'ammunition' is displayed. In several cases in which I have been involved, acceptable settlements have been achieved shortly after the production of detailed disclosure statements (35-40 pages). It is certainly possible that the dynamic to which I have alluded (showing your ammunition) played a role in producing settlements.

To Be Forewarned Is to Be Apprehensive

Many attorneys are so focused on the anticipated trial performance of an adverse expert witness, that the attorneys become paralyzed by deposition tip-off fear ' concern that their questions at deposition will enable the expert to infer what the lines of questioning will be at trial. Timothy M. Tippins, a member of The Matrimonial Strategist's Board of Editors, has observed that an attorney taking an expert's deposition can often thwart the expert's attempts to anticipate the focus of cross-examination by taking a comprehensive approach to deposition, mingling critical issues with extraneous issues.

The notion that to be forewarned is to be forearmed is simplistic, and, like all simplistic concepts, it ignores a variety of complex factors. As the foregoing relates to depositions, trials, and custody evaluators, attorneys are often needlessly concerned that their inquires at deposition will forewarn evaluators, giving the evaluators opportunities to prepare more effectively for trial. Evaluators are obligated by ethical standards and, often, by statutory requirements to have acquired certain knowledge and to have developed certain skills prior to conducting an evaluation. If, through deposition, it can be demonstrated that at the time that an evaluation was performed, an evaluator lacked the requisite knowledge or skills, no amount of forewarning and no amount of pre-trial preparation by the evaluator can turn back the clock. Knowledge displayed by an expert in the course of testimony at trial can easily be juxtaposed with ignorance displayed in response to questions posed at deposition. When this is done, the contrast serves to dramatically illustrate the deficiencies in the evaluator's knowledge at the time that the evaluation was conducted.

Attorneys presumably hope that adverse witnesses will not perform well. Apprehensive witnesses are likely to be ineffective witnesses. Evaluators become apprehensive when they contemplate the possibility that it will be shown at trial that something that they were supposed to have known at the time that they conducted their evaluations was not, in fact, known. Their apprehension is magnified when they become aware that opposing experts will explain the ways in which the evaluators' gaps in knowledge led to significant methodological errors or errors in data interpretation. To put all of this in tactical perspective, showing your hand during deposition can, under certain circumstances, elevate a witness' anxiety as
s/he prepares to testify. This, in turn, makes the witness less effective.

At Trial: The Cross-Examination

Consider What the Research Shows

“The research shows” is a phrase that is often inserted in the reports of or testimony by experts when they want to increase the likelihood that whatever pronouncement follows the phrase will be taken seriously. There may be research that shows what the expert asserts it shows, but that should not be presumed. If there is research, it should not be presumed that it was well conducted. If it was well conducted, it should not be presumed that the message to be taken from the data is being accurately described by the expert. And, when presented with a peer-reviewed, published research study demonstrating that X is true, cross-examining attorneys should consider the possibility that there is another peer-reviewed, published research study demonstrating that X is not true.

Assume that I have asserted that research shows that some cross-examining attorneys are rendered briefly speechless when witnesses utter the anxiety-inducing phrase: “The research shows.” Even if I had been systematically collecting data over a period of years, 1) my definition of brief speechlessness might not be the same as someone else's; 2) what I have observed might or might not be representative of what is occurring in other courtrooms; and 3) the inference drawn by me (that the brief period of speechlessness is indicative of anxiety) might not be drawn by other similarly-qualified observers of human behavior. I urge attorneys not to be cowed by the pronouncement that “the research shows” something that supports a position being taken by the witness.

If supportive research is cited, either because you inquire, or because, on re-direct, your adversary inquires, consider posing the questions that follow: 1) Are you aware of any publications the authors of which have offered an alternative explanation for the data from [the cited study]? 2) Are you aware of any publications in which the methodology employed [in the cited study] is criticized? 3) Are you aware of any other research the data from which might cast doubt on the conclusions drawn by [the authors of the cited study]?

Questions Are Often Statements

The target of persuasion is the judge. Witnesses are nothing more than vehicles through whom skillful attorneys bring their arguments to fact finders. An example follows. “Dr. Slanted: The concluding sentence of your report reads: 'Let's hope that this episode of How to Marry a Millionaire has come to a close.' Would you agree that this statement suggests that, during the course of this evaluation, you developed strongly negative personal feelings toward Mrs. Smith?” Though the words spoken by the attorney have been grammatically structured as a question, they form a statement to the court that it must consider the strong possibility that the evaluator is biased. The witness's response is of minimal importance.

Many attorneys seem to believe that, if afforded an opportunity to explain themselves, the risk is high that reasonably competent witnesses will be able to do so satisfactorily. This belief seems to be based upon another ' that where evaluative procedures are concerned, that which a consulting reviewer describes as an error will be referred to by the witness as a “different way of doing things.” There are many issues concerning which knowledgeable evaluators disagree, and, though we may not agree on one “right way” to conduct evaluations, there are certain evaluator errors for which no satisfactory explanations can be offered.

For example, there are evaluators who utilize tests in ways that depart from the instructions for use that appear in the test manuals. Similarly, there are evaluators who interpret test data in ways that are inconsistent with the interpretive guidelines provided in the manuals. When a reviewer asserts that errors such as these have been made, the attorney preparing to cross-examine the evaluator must have access to the applicable manuals.

Psychologists can “make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques” (wording taken from Standard 9.11 of our Ethics Code) and “strive to ensure the integrity and security of test materials and results” (wording taken from Guideline 10.02 of the American Psychological Association's Specialty Guidelines for Forensic Psychology), while safeguarding the “rights of those with whom they interact professionally '” (wording taken from Principle A of the psychologists' Ethics Code). Only by presenting test manuals in court can cross-examining attorneys challenge the work of evaluators who have made significant errors in their use of tests.

Controlling the Witness

It is likely that most attorneys are familiar with the work of the late Irving Younger and, specifically, with a speech given by him to the ABA, at its Annual Meeting in Montreal, Canada, in August, 1975. It was in this speech that Younger articulated his “10 Commandments of Cross-Examination.” Younger's commandments, print versions of which have been widely circulated, include (as the Eighthth Commandment): “Never permit the witness to explain anything on cross-examination.”

The decision to permit or prohibit explanations from a witness rests with the judge. Larry Pozner and Roger Dodd, in a text on cross-examination [Cross-examination: Science and Techniques, 2nd ed. (2005). Charlottesville, VA: LexisNexis] have opined on the topic of “Techniques That Don't Work” (' 19.08). Number One on the list of techniques that Pozner and Dodd believe to be ineffective is endeavoring to require that witnesses being cross-examined “Just Answer 'Yes' or 'No'.” In the view of Pozner and Dodd, “most judges will not permit the lawyer to do that. They will inform the witness that they may explain their answer, even at length, if necessary.”

Since the title of this article suggests that the perspective offered will be that of a psychologist, I will simply state that it has been my experience ' as a witness, as a consultant at trial, and as a reader of countless transcripts ' that judges presiding over custody disputes are far more likely than not to permit
expert witnesses (particularly, court-appointed evaluators) to amplify when the witnesses indicate, in some manner, that they wish to do so. Notwithstanding the apparent tendency of family law judges to permit testimonial augmentation, prudent attorneys will be attentive to Younger's Third Commandment: “Always ask leading questions.”

The point to be taken from this discussion is that even skilled attorneys find it difficult to build boxes from which expert witnesses will be unable to escape. First, even when a judge supports a cross-examining attorney in insisting that an adverse witness under cross examination limit responses to “Yes” or “No,” an alert opposing counsel will make note of topics concerning which the witness was clearly anxious to amplify and will return to those topics on re-direct. Second, it is not uncommon to find that questions posed from the bench enable experts to expound upon statements made earlier in their testimony.

When the Attorney and Judge Disagree

Throughout the course of a bench trial, judges make decisions on many issues (such as objections). It is not uncommon for judges, sua sponte, to express disinterest in a line of questioning being pursued by an attorney. A judge may even advise an attorney to “move on.” That advice is not always heeded. I am aware that conduct a judge may view as recalcitrant, an attorney may view as a course of action intended to create a record in the event of an appeal. On balance, however, it seems to me that only rarely is it prudent to engage judges in debates regarding what is and what is not probative.

All of us would like to see the outcome of litigated matters decided by the facts. We know, however, that life in our courts is not that simple ' or that fair. Judicial opinions, like opinions formulated by other human beings, are influenced by many factors having little to do with the facts of the case. Among the extraneous factors is attorney receptivity to suggestions offered from the bench. When a judge politely informs an attorney that s/he is beating a dead horse, it is usually unwise for the attorney to insist that there are signs of life and that continued pounding on the horse's chest is warranted.

Concluding Comments

There is no such thing as risk-free litigation. If you want to know what the outcome of a dispute will be, settle it without judicial intervention. When opposing positions are aired before triers of fact, there are no certainties. What you thought was a strong case may turn out not to be. It is, therefore, unrealistic to believe that, with sufficient caution, one can prevent an adverse expert witness from making points that might weaken your case.

David A. Martindale, Ph.D, A.B.B.P., a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology. He is the co-author, with Dr. Jon Gould, of The Art & Science of Child Custody Evaluations, and is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. Additional information may be found at http://www.damartindale.com/.

My work as a forensic psychological consultant has led me to testify, to offer assistance at trial, and to review a great many transcripts of trial proceedings. This exposure to the legal system (in more than half of our 50 states) has resulted in the development of some impressions regarding the manner in which attorneys prepare for trial and, specifically, for the cross-examination of adverse expert witnesses.

Preparing for Trial

Disclosures of Anticipated Testimony by Experts

There are significant jurisdictional differences in the wording of statutes addressing the obligation of attorneys to provide information to their adversaries regarding the anticipated testimony to be offered by retained experts. California's Family Code [217 (c)] requires “a brief description of the anticipated testimony.” New York's Civil Practice Law and Rules (CPLR) 3101 (d) requires that disclosure be “in reasonable detail.”

It is usually the desire of attorneys to provide as little information to their adversaries as possible. The generally agreed-upon perspective seems to be that when, in response to discovery demands, attorneys provide significantly detailed information, they enable their adversaries to prepare more effectively for trial. Detailed information provided to an adversary regarding an expert witness's anticipated testimony enables the adversary to explore the strengths and deficiencies in the positions that the witness has stated
s/he will articulate.

Though the logic that underlies the decision to be sparing in the information that one shares with an adversary seems sound, it may backfire. Some judges will limit an expert's testimony to the topics specifically addressed in the disclosure document. Additionally, where there is a desire to achieve settlement and an adversary seems unwilling to settle on terms with which you and your client can be comfortable, the adversary's dug-in heels may be loosened when your 'ammunition' is displayed. In several cases in which I have been involved, acceptable settlements have been achieved shortly after the production of detailed disclosure statements (35-40 pages). It is certainly possible that the dynamic to which I have alluded (showing your ammunition) played a role in producing settlements.

To Be Forewarned Is to Be Apprehensive

Many attorneys are so focused on the anticipated trial performance of an adverse expert witness, that the attorneys become paralyzed by deposition tip-off fear ' concern that their questions at deposition will enable the expert to infer what the lines of questioning will be at trial. Timothy M. Tippins, a member of The Matrimonial Strategist's Board of Editors, has observed that an attorney taking an expert's deposition can often thwart the expert's attempts to anticipate the focus of cross-examination by taking a comprehensive approach to deposition, mingling critical issues with extraneous issues.

The notion that to be forewarned is to be forearmed is simplistic, and, like all simplistic concepts, it ignores a variety of complex factors. As the foregoing relates to depositions, trials, and custody evaluators, attorneys are often needlessly concerned that their inquires at deposition will forewarn evaluators, giving the evaluators opportunities to prepare more effectively for trial. Evaluators are obligated by ethical standards and, often, by statutory requirements to have acquired certain knowledge and to have developed certain skills prior to conducting an evaluation. If, through deposition, it can be demonstrated that at the time that an evaluation was performed, an evaluator lacked the requisite knowledge or skills, no amount of forewarning and no amount of pre-trial preparation by the evaluator can turn back the clock. Knowledge displayed by an expert in the course of testimony at trial can easily be juxtaposed with ignorance displayed in response to questions posed at deposition. When this is done, the contrast serves to dramatically illustrate the deficiencies in the evaluator's knowledge at the time that the evaluation was conducted.

Attorneys presumably hope that adverse witnesses will not perform well. Apprehensive witnesses are likely to be ineffective witnesses. Evaluators become apprehensive when they contemplate the possibility that it will be shown at trial that something that they were supposed to have known at the time that they conducted their evaluations was not, in fact, known. Their apprehension is magnified when they become aware that opposing experts will explain the ways in which the evaluators' gaps in knowledge led to significant methodological errors or errors in data interpretation. To put all of this in tactical perspective, showing your hand during deposition can, under certain circumstances, elevate a witness' anxiety as
s/he prepares to testify. This, in turn, makes the witness less effective.

At Trial: The Cross-Examination

Consider What the Research Shows

“The research shows” is a phrase that is often inserted in the reports of or testimony by experts when they want to increase the likelihood that whatever pronouncement follows the phrase will be taken seriously. There may be research that shows what the expert asserts it shows, but that should not be presumed. If there is research, it should not be presumed that it was well conducted. If it was well conducted, it should not be presumed that the message to be taken from the data is being accurately described by the expert. And, when presented with a peer-reviewed, published research study demonstrating that X is true, cross-examining attorneys should consider the possibility that there is another peer-reviewed, published research study demonstrating that X is not true.

Assume that I have asserted that research shows that some cross-examining attorneys are rendered briefly speechless when witnesses utter the anxiety-inducing phrase: “The research shows.” Even if I had been systematically collecting data over a period of years, 1) my definition of brief speechlessness might not be the same as someone else's; 2) what I have observed might or might not be representative of what is occurring in other courtrooms; and 3) the inference drawn by me (that the brief period of speechlessness is indicative of anxiety) might not be drawn by other similarly-qualified observers of human behavior. I urge attorneys not to be cowed by the pronouncement that “the research shows” something that supports a position being taken by the witness.

If supportive research is cited, either because you inquire, or because, on re-direct, your adversary inquires, consider posing the questions that follow: 1) Are you aware of any publications the authors of which have offered an alternative explanation for the data from [the cited study]? 2) Are you aware of any publications in which the methodology employed [in the cited study] is criticized? 3) Are you aware of any other research the data from which might cast doubt on the conclusions drawn by [the authors of the cited study]?

Questions Are Often Statements

The target of persuasion is the judge. Witnesses are nothing more than vehicles through whom skillful attorneys bring their arguments to fact finders. An example follows. “Dr. Slanted: The concluding sentence of your report reads: 'Let's hope that this episode of How to Marry a Millionaire has come to a close.' Would you agree that this statement suggests that, during the course of this evaluation, you developed strongly negative personal feelings toward Mrs. Smith?” Though the words spoken by the attorney have been grammatically structured as a question, they form a statement to the court that it must consider the strong possibility that the evaluator is biased. The witness's response is of minimal importance.

Many attorneys seem to believe that, if afforded an opportunity to explain themselves, the risk is high that reasonably competent witnesses will be able to do so satisfactorily. This belief seems to be based upon another ' that where evaluative procedures are concerned, that which a consulting reviewer describes as an error will be referred to by the witness as a “different way of doing things.” There are many issues concerning which knowledgeable evaluators disagree, and, though we may not agree on one “right way” to conduct evaluations, there are certain evaluator errors for which no satisfactory explanations can be offered.

For example, there are evaluators who utilize tests in ways that depart from the instructions for use that appear in the test manuals. Similarly, there are evaluators who interpret test data in ways that are inconsistent with the interpretive guidelines provided in the manuals. When a reviewer asserts that errors such as these have been made, the attorney preparing to cross-examine the evaluator must have access to the applicable manuals.

Psychologists can “make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques” (wording taken from Standard 9.11 of our Ethics Code) and “strive to ensure the integrity and security of test materials and results” (wording taken from Guideline 10.02 of the American Psychological Association's Specialty Guidelines for Forensic Psychology), while safeguarding the “rights of those with whom they interact professionally '” (wording taken from Principle A of the psychologists' Ethics Code). Only by presenting test manuals in court can cross-examining attorneys challenge the work of evaluators who have made significant errors in their use of tests.

Controlling the Witness

It is likely that most attorneys are familiar with the work of the late Irving Younger and, specifically, with a speech given by him to the ABA, at its Annual Meeting in Montreal, Canada, in August, 1975. It was in this speech that Younger articulated his “10 Commandments of Cross-Examination.” Younger's commandments, print versions of which have been widely circulated, include (as the Eighthth Commandment): “Never permit the witness to explain anything on cross-examination.”

The decision to permit or prohibit explanations from a witness rests with the judge. Larry Pozner and Roger Dodd, in a text on cross-examination [Cross-examination: Science and Techniques, 2nd ed. (2005). Charlottesville, VA: LexisNexis] have opined on the topic of “Techniques That Don't Work” (' 19.08). Number One on the list of techniques that Pozner and Dodd believe to be ineffective is endeavoring to require that witnesses being cross-examined “Just Answer 'Yes' or 'No'.” In the view of Pozner and Dodd, “most judges will not permit the lawyer to do that. They will inform the witness that they may explain their answer, even at length, if necessary.”

Since the title of this article suggests that the perspective offered will be that of a psychologist, I will simply state that it has been my experience ' as a witness, as a consultant at trial, and as a reader of countless transcripts ' that judges presiding over custody disputes are far more likely than not to permit
expert witnesses (particularly, court-appointed evaluators) to amplify when the witnesses indicate, in some manner, that they wish to do so. Notwithstanding the apparent tendency of family law judges to permit testimonial augmentation, prudent attorneys will be attentive to Younger's Third Commandment: “Always ask leading questions.”

The point to be taken from this discussion is that even skilled attorneys find it difficult to build boxes from which expert witnesses will be unable to escape. First, even when a judge supports a cross-examining attorney in insisting that an adverse witness under cross examination limit responses to “Yes” or “No,” an alert opposing counsel will make note of topics concerning which the witness was clearly anxious to amplify and will return to those topics on re-direct. Second, it is not uncommon to find that questions posed from the bench enable experts to expound upon statements made earlier in their testimony.

When the Attorney and Judge Disagree

Throughout the course of a bench trial, judges make decisions on many issues (such as objections). It is not uncommon for judges, sua sponte, to express disinterest in a line of questioning being pursued by an attorney. A judge may even advise an attorney to “move on.” That advice is not always heeded. I am aware that conduct a judge may view as recalcitrant, an attorney may view as a course of action intended to create a record in the event of an appeal. On balance, however, it seems to me that only rarely is it prudent to engage judges in debates regarding what is and what is not probative.

All of us would like to see the outcome of litigated matters decided by the facts. We know, however, that life in our courts is not that simple ' or that fair. Judicial opinions, like opinions formulated by other human beings, are influenced by many factors having little to do with the facts of the case. Among the extraneous factors is attorney receptivity to suggestions offered from the bench. When a judge politely informs an attorney that s/he is beating a dead horse, it is usually unwise for the attorney to insist that there are signs of life and that continued pounding on the horse's chest is warranted.

Concluding Comments

There is no such thing as risk-free litigation. If you want to know what the outcome of a dispute will be, settle it without judicial intervention. When opposing positions are aired before triers of fact, there are no certainties. What you thought was a strong case may turn out not to be. It is, therefore, unrealistic to believe that, with sufficient caution, one can prevent an adverse expert witness from making points that might weaken your case.

David A. Martindale, Ph.D, A.B.B.P., a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology. He is the co-author, with Dr. Jon Gould, of The Art & Science of Child Custody Evaluations, and is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. Additional information may be found at http://www.damartindale.com/.