Mining the Gold in Flawed Forensic Custody Reports

Remember the Audience

Direct and cross-examination are ultimately processes of persuasion. The target of the attempts at persuasion is the judge.

When a report has meaningful flaws that get in the way of trial goals, it is important to recall the importance of amplifying the data and conclusions that support a
client's interests sufficiently so that they rise above, or overwhelm the “noise” that will be created as the other side articulates the problems with the report. Identifying a small, manageable number of “bullet-points” that one wants to make sure the judge leaves the trial remembering, and organizing communication efforts during direct or cross around those issues, is most effective.

It is also important to incorporate what we know about human information processing during the crafting of examinations: The most important issues from the report that work for a parent-client should be “stacked” at the beginning and end (rather than in the middle) of the questions for the mental health witness because our brains (and the judge's!) most heavily weight the earliest and last information received.

Amplifying Forensic Strengths

When a report has meaningful flaws, there are almost always countervailing strengths that should be amplified for the judge to weaken or vitiate the attack on the report's quality ' an attack that will evidence whether the other side is doing a competent job. Working toward the goal of early impression-management that emphasizes the crystallization of reasons why the data and opinion can be trusted can be a useful focus. The following four dimensions offer useful categories of strengths to highlight for the judge:

Management of Professional Relationships

This dimension involves making it clear to the judge that the evaluator is sufficiently competent, by virtue of training and education. It includes an emphasis on: 1) the ways in which the expert managed his/her relationships with the parties and their attorneys in a manner that gave careful attention to the scope of the forensic role and the appointment order; 2) the expert's establishment of, and fidelity to, written forensic contracts; and 3) evidence of the expert's respect for appropriate professional boundaries. The ways in which the evaluator handled the assessment that suggest neutrality and diligence should be highlighted.

Data-Adequacy

This dimension involves using direct and cross questions to highlight any ways in which the expert's selection of data suggests an effort to gather information that was as relevant, broad, and balanced as possible. A small sample of the possibilities here include emphasizing the degree to which: 1) the interviews conducted were detailed and comprehensive; 2) psychological testing was carefully included in the assessment to avoid the pitfalls of interview-only approaches; and 3) the non-party consultations conducted (collaterals) and records reviewed were both sufficient and relevant.

Technique Adequacy

This dimension involves using cross or direct questioning as a vehicle for crystalizing in the judge's mind the ways in which, despite the presence of certain flaws, the evaluator made reasonable efforts to maintain fidelity to the highest standards of their discipline with respect to technical applications. This would include, among other possibilities, emphasizing the ways in which the evaluator: 1) used carefully planned and structured interviews; 2) administered and scored tests in compliance with published instructions; 3) handled the review of collateral and written material in a manner that facilitated balance and completeness; and 4) used a cautious hypothesis-testing approach in their processing of the data that was gathered.

Reasoning Adequacy

When a report has meaningful flaws, it is essential to make clear that, with respect to the central conclusions that dove-tail with a parent-client's or child's interests, there is a clear and compelling logical nexus between those inferences and the data that was gathered. A sample of the possibilities here includes emphasizing the ways in which the evaluator: 1) had more than a single piece of data undergirding the inference; 2) reasoned, in a logical and sensible manner, about the connection between the data and the conclusion; and 3) grounded his/her inferences in principles that have support in the peer-reviewed literature of their discipline.

Anticipate and Neutralize Likely Attacks

An error often made in situations where a forensic report is seriously flawed involves an approach to direct or cross-examination that acts as if the flaws didn't exist. At a minimum, it is important to have at the ready a strategy for responding to likely attacks on the sufficiency of an evaluator's data, methods or reasoning. However, if an attorney is going first in the examination-sequence it may occasionally make sense to actually flush out, and even have the expert admit to, certain flaws. This tactic is especially appropriate if the expert can provide an adequate rationale for the shortcomings ' thus preempting the possible attack on the assessment from the other side. The decision about whether or not to preempt in this manner involves a difficult calculation of the damage to the opinion that the expert's errors may cause, the likelihood that the other side will in fact address these errors, and the question whether mentioning the flaw in a preemptive manner will over-emphasize it in the judge's mind.

An example of preempting in this fashion would include the following: In a case where a mother's medical judgment about her children was central, an evaluator failed to follow through on permission from the parents to interview the pediatrician. Rather than risk allowing the other side to capitalize on this error, the attorney chooses to preempt by asking the evaluator on the stand whether she interviewed the MD (“no”), and why not (“Because the pediatrician was a close friend of the father's family and I decided he was likely unable to be objective.”). While reasonable people might disagree about whether such a rationale forgives the procedural weakness, it at least saps some of the power out of having it highlighted by one's opponent.

Emphasize 'Facts' over Opinion/Theory

In situations where a report is seriously flawed, exploring more abstract inferences in detail can lead to powerful counterattacks about the flawed method that led to the conclusions. But it has been noted that the gathering of “level-I,” or factual, data may actually be one of the most valuable contributions made by forensic psychologists and psychiatrists. Tippins, T.M. and Wittmann, J.J.P. (2005), Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilence, 43 Fam Court. Rev., Association of Family and Conciliation Courts. It is at this level that evaluators can provide an essential “investigative function” for the courts by simply chronicling the stories offered by the litigants, along with any relevant self-admissions with respect to allegations in the case.

Stepping around abstract and vulnerable aspects of the conclusions, and emphasizing concrete things that were admitted to or observed, can send a powerful message to the judge while avoiding psychological constructs that may be vulnerable to attack. For example, one could elicit from the witness that the mother never leaves the child's side, rather than exploring what “enmeshment” means. The expert could be asked to testify about how a parent freely disparaged the other parent in a session with the child, rather than about what the term “tendencies toward alienation” means. Or questioning could elicit testimony about the fact that the father admitted to serving weeks in jail for injuring his first wife, rather than about his tendencies toward exerting “coercive control.”

This approach capitalizes on the fact that, while an evaluator might have done a poor job procedurally so that more abstract constructs in the report are vulnerable, certain factual information may still have been gathered that will make an impression on the court and rise above the weaknesses in method.

Implications for Practice

The arrival of a favorable opinion based on a flawed evaluation represents a significant dilemma for a legal advocate, and a good reason for a court to be profoundly hesitant about such an opinion. However, cautious use of principles from the psychology of information processing and persuasion offer options for direct and cross examination of the custody evaluator that can amplify information useful for the court and consistent with a client's interests, while maintaining the integrity of legal representation.

Matrimonial attorneys who engage in trial practice know that sinking feeling when: 1) a forensic custody report arrives and offers opinions that work to the benefit of the parent being represented; yet 2) it becomes apparent that the process and/or reasoning used by the evaluator were flawed in meaningful ways, rendering the favorable opinion vulnerable. Some reports are based on inadequate data, a long list of serious technical errors, ethically questionable behavior, and/or custody-related reasoning that is either profoundly illogical or in direct opposition to peer-reviewed, replicated research.

It is important to remember that, just as the task for attorneys of forming legal case strategy and assessing different litigation options is a human judgment process susceptible to procedural and judgment error (simply because the lawyer is a member of the species homo sapiens), the same is true for the custody assessment process. This means that one can actually expect certain forms of error to contaminate most assessment reports, whether as the result of these tendencies toward judgmental mistakes, deficient professional skills, or because of certain factors that distorted the evaluator's method, database, or reasoning.

We must remember, however, that while on occasion a report arrives that is so flawed as to be unsalvageable (suggesting that the report or the evaluator should not come within a mile of the courtroom door), there are certain trial strategies that can assist in preserving the aspects of a report that are both empirically supportable, consistent with the interests of one's client, and consistent with a trial process focused on discerning bests interests.

Remember the Audience

Direct and cross-examination are ultimately processes of persuasion. The target of the attempts at persuasion is the judge.

When a report has meaningful flaws that get in the way of trial goals, it is important to recall the importance of amplifying the data and conclusions that support a
client's interests sufficiently so that they rise above, or overwhelm the “noise” that will be created as the other side articulates the problems with the report. Identifying a small, manageable number of “bullet-points” that one wants to make sure the judge leaves the trial remembering, and organizing communication efforts during direct or cross around those issues, is most effective.

It is also important to incorporate what we know about human information processing during the crafting of examinations: The most important issues from the report that work for a parent-client should be “stacked” at the beginning and end (rather than in the middle) of the questions for the mental health witness because our brains (and the judge's!) most heavily weight the earliest and last information received.

Amplifying Forensic Strengths

When a report has meaningful flaws, there are almost always countervailing strengths that should be amplified for the judge to weaken or vitiate the attack on the report's quality ' an attack that will evidence whether the other side is doing a competent job. Working toward the goal of early impression-management that emphasizes the crystallization of reasons why the data and opinion can be trusted can be a useful focus. The following four dimensions offer useful categories of strengths to highlight for the judge:

Management of Professional Relationships

This dimension involves making it clear to the judge that the evaluator is sufficiently competent, by virtue of training and education. It includes an emphasis on: 1) the ways in which the expert managed his/her relationships with the parties and their attorneys in a manner that gave careful attention to the scope of the forensic role and the appointment order; 2) the expert's establishment of, and fidelity to, written forensic contracts; and 3) evidence of the expert's respect for appropriate professional boundaries. The ways in which the evaluator handled the assessment that suggest neutrality and diligence should be highlighted.

Data-Adequacy

This dimension involves using direct and cross questions to highlight any ways in which the expert's selection of data suggests an effort to gather information that was as relevant, broad, and balanced as possible. A small sample of the possibilities here include emphasizing the degree to which: 1) the interviews conducted were detailed and comprehensive; 2) psychological testing was carefully included in the assessment to avoid the pitfalls of interview-only approaches; and 3) the non-party consultations conducted (collaterals) and records reviewed were both sufficient and relevant.

Technique Adequacy

This dimension involves using cross or direct questioning as a vehicle for crystalizing in the judge's mind the ways in which, despite the presence of certain flaws, the evaluator made reasonable efforts to maintain fidelity to the highest standards of their discipline with respect to technical applications. This would include, among other possibilities, emphasizing the ways in which the evaluator: 1) used carefully planned and structured interviews; 2) administered and scored tests in compliance with published instructions; 3) handled the review of collateral and written material in a manner that facilitated balance and completeness; and 4) used a cautious hypothesis-testing approach in their processing of the data that was gathered.

Reasoning Adequacy

When a report has meaningful flaws, it is essential to make clear that, with respect to the central conclusions that dove-tail with a parent-client's or child's interests, there is a clear and compelling logical nexus between those inferences and the data that was gathered. A sample of the possibilities here includes emphasizing the ways in which the evaluator: 1) had more than a single piece of data undergirding the inference; 2) reasoned, in a logical and sensible manner, about the connection between the data and the conclusion; and 3) grounded his/her inferences in principles that have support in the peer-reviewed literature of their discipline.

Anticipate and Neutralize Likely Attacks

An error often made in situations where a forensic report is seriously flawed involves an approach to direct or cross-examination that acts as if the flaws didn't exist. At a minimum, it is important to have at the ready a strategy for responding to likely attacks on the sufficiency of an evaluator's data, methods or reasoning. However, if an attorney is going first in the examination-sequence it may occasionally make sense to actually flush out, and even have the expert admit to, certain flaws. This tactic is especially appropriate if the expert can provide an adequate rationale for the shortcomings ' thus preempting the possible attack on the assessment from the other side. The decision about whether or not to preempt in this manner involves a difficult calculation of the damage to the opinion that the expert's errors may cause, the likelihood that the other side will in fact address these errors, and the question whether mentioning the flaw in a preemptive manner will over-emphasize it in the judge's mind.

An example of preempting in this fashion would include the following: In a case where a mother's medical judgment about her children was central, an evaluator failed to follow through on permission from the parents to interview the pediatrician. Rather than risk allowing the other side to capitalize on this error, the attorney chooses to preempt by asking the evaluator on the stand whether she interviewed the MD (“no”), and why not (“Because the pediatrician was a close friend of the father's family and I decided he was likely unable to be objective.”). While reasonable people might disagree about whether such a rationale forgives the procedural weakness, it at least saps some of the power out of having it highlighted by one's opponent.

Emphasize 'Facts' over Opinion/Theory

In situations where a report is seriously flawed, exploring more abstract inferences in detail can lead to powerful counterattacks about the flawed method that led to the conclusions. But it has been noted that the gathering of “level-I,” or factual, data may actually be one of the most valuable contributions made by forensic psychologists and psychiatrists. Tippins, T.M. and Wittmann, J.J.P. (2005), Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilence, 43 Fam Court. Rev., Association of Family and Conciliation Courts. It is at this level that evaluators can provide an essential “investigative function” for the courts by simply chronicling the stories offered by the litigants, along with any relevant self-admissions with respect to allegations in the case.

Stepping around abstract and vulnerable aspects of the conclusions, and emphasizing concrete things that were admitted to or observed, can send a powerful message to the judge while avoiding psychological constructs that may be vulnerable to attack. For example, one could elicit from the witness that the mother never leaves the child's side, rather than exploring what “enmeshment” means. The expert could be asked to testify about how a parent freely disparaged the other parent in a session with the child, rather than about what the term “tendencies toward alienation” means. Or questioning could elicit testimony about the fact that the father admitted to serving weeks in jail for injuring his first wife, rather than about his tendencies toward exerting “coercive control.”

This approach capitalizes on the fact that, while an evaluator might have done a poor job procedurally so that more abstract constructs in the report are vulnerable, certain factual information may still have been gathered that will make an impression on the court and rise above the weaknesses in method.

Implications for Practice

The arrival of a favorable opinion based on a flawed evaluation represents a significant dilemma for a legal advocate, and a good reason for a court to be profoundly hesitant about such an opinion. However, cautious use of principles from the psychology of information processing and persuasion offer options for direct and cross examination of the custody evaluator that can amplify information useful for the court and consistent with a client's interests, while maintaining the integrity of legal representation.