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Stop it.
It is likely that a dispassionate examination of both the intended and unintended, positive and negative, effects on the custody evaluation process of pre-evaluation litigant preparation by forensic mental health consultants (FMHCs), would lead to one conclusion: the probability that evaluators will develop distorted views of prepared litigants exceeds the probability that evaluators will develop more accurate views. There will be times when litigants will experience transitory anxiety, triggered by an impending evaluation, and this anxiety will impair their ability to present themselves in a natural (and positive) manner. This, in turn, may lead to an inaccurate assessment. When litigants are troubled by transitory anxiety, however, they are more likely to secure needed assistance from a skilled treatment provider than from a FMHC.
The Appeal and the Risk
Attorneys and mental health professionals emerging from presentations offered by providers of pre-evaluation litigant preparation services have reported being given the impression that the pre-evaluation preparation of a custody litigant by a forensic mental health professional is a disclosure-proof activity. In the New York judicial decision handed down in the White Plains case of E.V. v. R.V., 44 Misc.3d 1210(A) (Sup.Ct., Westchester Co., Colangelo, J., 7/2/14), the court commented, with significant disapproval, on the receipt by the mother of “extensive ' over 50 hours ' of preparation for her forensic interview ' from ' Dr. Jonathan Gould.” However, attorney-client work product privilege does not provide limitless protection.
First, when attorneys retain experts to prepare litigants for their evaluations, when the experts are paid by the attorneys, and when economic issues are explored during the proceedings, attorneys' costs and fees may be laid out for all to see. Thus, bills submitted to attorneys by their retained consultants may be subjected to unwelcome scrutiny.
Second, in our social media culture, it is not uncommon for individuals to post on Internet sites information that harms them in job searches, in their interpersonal relationships, and in their pursuit of litigation objectives.
Identifying the Problem
Contamination of the evaluative process inevitably occurs when a litigant receives pre-evaluation preparation from an experienced FMHC, yet the practice has defenders. In an article titled “Science, Mental Health Consultants, and Attorney-Expert Relationships in Child Custody,” published in Family Law Quarterly (2014, 48:1), Milfred Dale and Jonathan Gould set forth what they describe as a “pragmatic approach” to an examination of the ways in which mental health professionals can assist attorneys who are handling litigated disputes regarding custody and/or access. One element of the “pragmatic approach” is found in the statement that “[t]here is simply no replacement for following the words of a sage law professor, 'Don't think great thoughts. Read the rules.'”
If rules define minimum standards and if minimum standards constitute a metaphorical floor, urging professionals to “read the rules,” is akin to advising them to aim for the floor, rather than the ceiling. The “sage law professor” whose sagacity is cited by Dale and Gould is James Concannon. His allusion to “great thoughts” is perplexing. In particular, it is not clear what forms of contemplation he views as counterproductive.
The idea of conforming our behavior to rules has an undeniable appeal, but many rules are not as easily understood as those who wrote them might have thought they would be. In the context of an interview in 1962, Justice Hugo Black discussed disagreements among justices of the Supreme Court concerning the meaning of the First Amendment. Black, describing himself as “a rather backward country fellow,” stated: “I understand it to mean what the words say.” The First Amendment comprises 45 words, yet the Supreme Court of the United States has addressed disagreements concerning “what the words say” 230 times.
The Ethic of Reciprocity
In Jewish history texts, Rabbi Hillel (110 BCE ' 10 CE) is described as a sage and scholar. It therefore seems reasonable to hypothesize that, as he contemplated what duty each of us owes to others, his scholarly predilections got the better of him and he found himself thinking great thoughts, rather than (or in addition to) reading the rules. Rabbi Hillel wrote: “That which is hateful to you, do not do to your fellow.” This principle is often referred to as the golden rule or the ethic of reciprocity.
Family law attorneys wishing to retain FMHCs to assist in litigated custody disputes seek consultants who are experienced evaluators. Consultants who also perform evaluations or who have performed evaluations in the past should not find it difficult to imagine themselves performing an evaluation, trying their best to obtain accurate information concerning the parenting strengths and weaknesses of the litigants, and learning, at some point, that a colleague provided pre-evaluation preparation of one of the litigants.
The Range of Consulting Services
Forensic mental health consultation services take several forms; however, with remarkably few exceptions, the generally accepted consultation services are offered only after a report has been released.
It is not uncommon for attorneys working on high budget cases to retain consultants prior to the release of a report, in order to ensure that the consultants will be available when needed. The retention of an expert prior to the release of a report should not give rise to suspicions concerning client preparation by the expert. The disclosure of a bill showing time expended prior to or during the course of an evaluation is quite another matter.
Prior to the release of an evaluator's report, it is impossible to consult regarding the most persuasive ways in which to endorse the evaluator's methods, findings, and recommendations, if the report strengthens the litigant's position. Prior to the release of an evaluator's report, it is impossible to ascertain whether or not it is deficient in meaningful ways, and to consult regarding the most effective ways to call the court's attention to identified deficiencies, if the report weakens the litigant's position. While Sherlock Holmes was contending with A Scandal in Bohemia, he observed that “when you have eliminated the impossible, whatever remains ' must be the truth.” In this context, what remains is pre-evaluation litigant preparation.
Principled Consulting from Start to Finish
With exceptions only for activities such as assisting in the selection of evaluators, helping attorneys to understand the parenting issues in the case, and the drafting of detailed appointment orders, the involvement in a case of a FMHC should start with the release of an evaluator's report. The review of an evaluator's report and the subsequent or simultaneous review of the evaluator's file is generally referred to as a work product review . The possible outcomes of such a review are: 1) a favorable review of a report that is favorable to the litigant represented by the retaining attorney; 2) an unfavorable review of a report that is favorable to the litigant represented by the retaining attorney; 3) a favorable review of a report that is unfavorable to the litigant represented by the retaining attorney; and 4) an unfavorable review of a report that is unfavorable to the litigant represented by the retaining attorney.
Though systematically gathered and published data are not available, there is general agreement that FMHCs are most often retained by attorneys holding reports that are unfavorable to their clients. In these circumstances, the attorneys are hopeful that the retained consultants will identify deficiencies in the work done by the evaluators (outcome 4, from the list above). Subsequently, the reviewers may provide litigation support services or may offer testimony. When, after having reviewed reports that are unfavorable to retaining attorneys, FMHCs conclude that the work of the evaluators appears to have been done competently (outcome 3), the FMHCs and those who have retained them ordinarily part company. FMHCs should not participate in trial strategies the goal of which is to convince triers of fact not to be guided by the advisory input contained in the reports of well-conducted evaluations.
Though attorneys holding reports that are favorable to their clients are in an enviable position, it may be precarious. Attorneys in possession of reports with which they are pleased may retain FMHCs when it seems likely that the reports will be attacked. When a report is favorable, a retaining attorney hopes that a retained reviewer will opine that the evaluation forming the foundation for the favorable report appears to have been well conducted (outcome 1). When this occurs, the reviewer may subsequently provide litigation assistance or may offer testimony intended to support the evaluator. A FMHC reviewing a favorable report may deliver the disappointing news that the favorable report rests on a shaky foundation, and that the evaluator is likely to encounter a difficult cross-examination (outcome 2). Under these circumstances, the only professional service that may appropriately be offered is the provision of assistance in understanding the deficiencies in the evaluator's work.
Debunking 'Innocent' Explanations
Litigants who have resorted to preparation for their evaluations by forensic experts may, when pressed, offer a number of justifications for such tactics: 1) “I just wanted to get parenting pointers”; 2) “I was so stressed out I was looking for help with anxiety”; or 3) “I just needed some help organizing my thoughts.”
Such explanations can be challenged on cross-examination by posing the questions that these claims invite:
1. a. Your pleadings contain assorted assertions concerning superior parenting skills. If you believe those assertions, why would you experience a need to obtain parenting effectiveness training immediately prior to the commencement of the custody evaluation?
b. If all that you sought were tips on improving your parenting skills, why did you enlist the aid of a forensic mental health specialist instead of someone specializing in family psychology?
2. a. If you began to experience anxiety as the day of the evaluation drew near, why did you not seek the services of someone local?
b. Why did you enlist the aid of someone who had to travel to this location, stay in a hotel, rent a car, and, in various other ways, increase the cost to you of the services being provided?
c. Why were the services procured by your attorney?
d. If you were troubled by anxiety and informed your attorney, why did your attorney retain someone whose area of expertise is forensic psychology rather than clinical psychology?
3. a. If you find yourself unable to organize your thoughts, and if your children are in school, is it not possible that your inability to organize your thoughts makes you less effective than you otherwise might be at assisting your children with their homework?
b. If so, is this organizational impairment relevant to parenting, and, therefore, something of which the evaluator should have been made aware?
In the minds of thoughtful judges, the questions will keep coming, but innocent answers will not.
Conclusion
American litigators regularly use witness preparation, and virtually all would consider it a fundamental duty of representation and a basic element of effective advocacy. We must differentiate witness preparation by an attorney from the preparation of a soon-to-be-evaluated parent by a forensic mental health consultant. There are both tactical and ethical reasons to refrain from having litigants prepared for evaluations by forensic mental health consultants.
Stop it.
It is likely that a dispassionate examination of both the intended and unintended, positive and negative, effects on the custody evaluation process of pre-evaluation litigant preparation by forensic mental health consultants (FMHCs), would lead to one conclusion: the probability that evaluators will develop distorted views of prepared litigants exceeds the probability that evaluators will develop more accurate views. There will be times when litigants will experience transitory anxiety, triggered by an impending evaluation, and this anxiety will impair their ability to present themselves in a natural (and positive) manner. This, in turn, may lead to an inaccurate assessment. When litigants are troubled by transitory anxiety, however, they are more likely to secure needed assistance from a skilled treatment provider than from a FMHC.
The Appeal and the Risk
Attorneys and mental health professionals emerging from presentations offered by providers of pre-evaluation litigant preparation services have reported being given the impression that the pre-evaluation preparation of a custody litigant by a forensic mental health professional is a disclosure-proof activity. In the
First, when attorneys retain experts to prepare litigants for their evaluations, when the experts are paid by the attorneys, and when economic issues are explored during the proceedings, attorneys' costs and fees may be laid out for all to see. Thus, bills submitted to attorneys by their retained consultants may be subjected to unwelcome scrutiny.
Second, in our social media culture, it is not uncommon for individuals to post on Internet sites information that harms them in job searches, in their interpersonal relationships, and in their pursuit of litigation objectives.
Identifying the Problem
Contamination of the evaluative process inevitably occurs when a litigant receives pre-evaluation preparation from an experienced FMHC, yet the practice has defenders. In an article titled “Science, Mental Health Consultants, and Attorney-Expert Relationships in Child Custody,” published in Family Law Quarterly (2014, 48:1), Milfred Dale and Jonathan Gould set forth what they describe as a “pragmatic approach” to an examination of the ways in which mental health professionals can assist attorneys who are handling litigated disputes regarding custody and/or access. One element of the “pragmatic approach” is found in the statement that “[t]here is simply no replacement for following the words of a sage law professor, 'Don't think great thoughts. Read the rules.'”
If rules define minimum standards and if minimum standards constitute a metaphorical floor, urging professionals to “read the rules,” is akin to advising them to aim for the floor, rather than the ceiling. The “sage law professor” whose sagacity is cited by Dale and Gould is James Concannon. His allusion to “great thoughts” is perplexing. In particular, it is not clear what forms of contemplation he views as counterproductive.
The idea of conforming our behavior to rules has an undeniable appeal, but many rules are not as easily understood as those who wrote them might have thought they would be. In the context of an interview in 1962, Justice Hugo Black discussed disagreements among justices of the Supreme Court concerning the meaning of the First Amendment. Black, describing himself as “a rather backward country fellow,” stated: “I understand it to mean what the words say.” The First Amendment comprises 45 words, yet the Supreme Court of the United States has addressed disagreements concerning “what the words say” 230 times.
The Ethic of Reciprocity
In Jewish history texts, Rabbi Hillel (110 BCE ' 10 CE) is described as a sage and scholar. It therefore seems reasonable to hypothesize that, as he contemplated what duty each of us owes to others, his scholarly predilections got the better of him and he found himself thinking great thoughts, rather than (or in addition to) reading the rules. Rabbi Hillel wrote: “That which is hateful to you, do not do to your fellow.” This principle is often referred to as the golden rule or the ethic of reciprocity.
Family law attorneys wishing to retain FMHCs to assist in litigated custody disputes seek consultants who are experienced evaluators. Consultants who also perform evaluations or who have performed evaluations in the past should not find it difficult to imagine themselves performing an evaluation, trying their best to obtain accurate information concerning the parenting strengths and weaknesses of the litigants, and learning, at some point, that a colleague provided pre-evaluation preparation of one of the litigants.
The Range of Consulting Services
Forensic mental health consultation services take several forms; however, with remarkably few exceptions, the generally accepted consultation services are offered only after a report has been released.
It is not uncommon for attorneys working on high budget cases to retain consultants prior to the release of a report, in order to ensure that the consultants will be available when needed. The retention of an expert prior to the release of a report should not give rise to suspicions concerning client preparation by the expert. The disclosure of a bill showing time expended prior to or during the course of an evaluation is quite another matter.
Prior to the release of an evaluator's report, it is impossible to consult regarding the most persuasive ways in which to endorse the evaluator's methods, findings, and recommendations, if the report strengthens the litigant's position. Prior to the release of an evaluator's report, it is impossible to ascertain whether or not it is deficient in meaningful ways, and to consult regarding the most effective ways to call the court's attention to identified deficiencies, if the report weakens the litigant's position. While Sherlock Holmes was contending with A Scandal in Bohemia, he observed that “when you have eliminated the impossible, whatever remains ' must be the truth.” In this context, what remains is pre-evaluation litigant preparation.
Principled Consulting from Start to Finish
With exceptions only for activities such as assisting in the selection of evaluators, helping attorneys to understand the parenting issues in the case, and the drafting of detailed appointment orders, the involvement in a case of a FMHC should start with the release of an evaluator's report. The review of an evaluator's report and the subsequent or simultaneous review of the evaluator's file is generally referred to as a work product review . The possible outcomes of such a review are: 1) a favorable review of a report that is favorable to the litigant represented by the retaining attorney; 2) an unfavorable review of a report that is favorable to the litigant represented by the retaining attorney; 3) a favorable review of a report that is unfavorable to the litigant represented by the retaining attorney; and 4) an unfavorable review of a report that is unfavorable to the litigant represented by the retaining attorney.
Though systematically gathered and published data are not available, there is general agreement that FMHCs are most often retained by attorneys holding reports that are unfavorable to their clients. In these circumstances, the attorneys are hopeful that the retained consultants will identify deficiencies in the work done by the evaluators (outcome 4, from the list above). Subsequently, the reviewers may provide litigation support services or may offer testimony. When, after having reviewed reports that are unfavorable to retaining attorneys, FMHCs conclude that the work of the evaluators appears to have been done competently (outcome 3), the FMHCs and those who have retained them ordinarily part company. FMHCs should not participate in trial strategies the goal of which is to convince triers of fact not to be guided by the advisory input contained in the reports of well-conducted evaluations.
Though attorneys holding reports that are favorable to their clients are in an enviable position, it may be precarious. Attorneys in possession of reports with which they are pleased may retain FMHCs when it seems likely that the reports will be attacked. When a report is favorable, a retaining attorney hopes that a retained reviewer will opine that the evaluation forming the foundation for the favorable report appears to have been well conducted (outcome 1). When this occurs, the reviewer may subsequently provide litigation assistance or may offer testimony intended to support the evaluator. A FMHC reviewing a favorable report may deliver the disappointing news that the favorable report rests on a shaky foundation, and that the evaluator is likely to encounter a difficult cross-examination (outcome 2). Under these circumstances, the only professional service that may appropriately be offered is the provision of assistance in understanding the deficiencies in the evaluator's work.
Debunking 'Innocent' Explanations
Litigants who have resorted to preparation for their evaluations by forensic experts may, when pressed, offer a number of justifications for such tactics: 1) “I just wanted to get parenting pointers”; 2) “I was so stressed out I was looking for help with anxiety”; or 3) “I just needed some help organizing my thoughts.”
Such explanations can be challenged on cross-examination by posing the questions that these claims invite:
1. a. Your pleadings contain assorted assertions concerning superior parenting skills. If you believe those assertions, why would you experience a need to obtain parenting effectiveness training immediately prior to the commencement of the custody evaluation?
b. If all that you sought were tips on improving your parenting skills, why did you enlist the aid of a forensic mental health specialist instead of someone specializing in family psychology?
2. a. If you began to experience anxiety as the day of the evaluation drew near, why did you not seek the services of someone local?
b. Why did you enlist the aid of someone who had to travel to this location, stay in a hotel, rent a car, and, in various other ways, increase the cost to you of the services being provided?
c. Why were the services procured by your attorney?
d. If you were troubled by anxiety and informed your attorney, why did your attorney retain someone whose area of expertise is forensic psychology rather than clinical psychology?
3. a. If you find yourself unable to organize your thoughts, and if your children are in school, is it not possible that your inability to organize your thoughts makes you less effective than you otherwise might be at assisting your children with their homework?
b. If so, is this organizational impairment relevant to parenting, and, therefore, something of which the evaluator should have been made aware?
In the minds of thoughtful judges, the questions will keep coming, but innocent answers will not.
Conclusion
American litigators regularly use witness preparation, and virtually all would consider it a fundamental duty of representation and a basic element of effective advocacy. We must differentiate witness preparation by an attorney from the preparation of a soon-to-be-evaluated parent by a forensic mental health consultant. There are both tactical and ethical reasons to refrain from having litigants prepared for evaluations by forensic mental health consultants.
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