Secret Weapons

Using Psychologists to Win Emotional Distress Claims

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Oct 5, 2009 Joni Johnston

Attorneys who handle emotional distress claims often overlook a powerful weapon in the battle to help judges and juries understand complex psychological information.

Here’s a typical scenario during an emotional distress claim: Plaintiff’s attorney either calls a treating psychiatrist or psychologist as an expert, or hires a forensic expert to examine the plaintiff and render a causation opinion regarding the complaint of emotional distress. In response, the respective defense attorney retains an expert to conduct a separate examination in an attempt to find a contradictory causation explanation.

This model, although widely used, is risky. A fundamental problem with dueling expert witnesses is that too much is left to chance. In its present form, it gives more weight, from a jury’s point of view, to an expert’s credentials, appearance of credibility, and other confounding and irrelevant factors, when the real issue should be the reliability and validity of the evidence and methods upon which testimony is based.

The Mental Health Expert behind the Scenes

While jurors are not in a position to evaluate the validity or accuracy of an individual psychologist’s procedures or opinions, a consulting mental expert can. In fact, an extremely valuable, but under-utilized, litigation strategy involves retaining a knowledgeable mental health consulting expert who is experienced in ferreting out critical information that can be used to discredit psychological and psychiatric expert testimony.

A consultant expert knows what questions to ask and is skilled in working closely with attorneys to obtain the most damaging admissions from experts. This approach can be very successful because psychology and psychiatry have strict internal scientific standards and ethical codes that define the dissemination of knowledge and limit what is acceptable in the courtroom, public domain, and clinic.

Finding Holes in an Expert's Testimony

A consultant expert approach offers attorneys an extremely effective way to discover what is “wrong” with an opposing expert’s testimony. Careful preparation for deposing psychologists and psychiatrists is crucial for effectively challenging their testimony. Unless there is a good reason for preserving an expert for trial, a well planned deposition may frighten opposing counsel into withdrawing the expert, cause the expert to withdraw from testifying, or establish the foundation for a summary judgment to exclude the expert’s testimony.

Involving a consultant expert early on guarantees that the discovery process will include an analysis of the scientific foundations of expert witness testimony, that is, the validity and reliability of the methods upon which an expert’s opinions are founded. It will also guarantee that a plaintiff’s complaint of emotional distress is accurately evaluated as to the probability that it is either fraudulent or exaggerated.

Common Mistakes By Mental Health Expert Witnesses

For example, some of the more prevalent opportunities for distortion by mental health experts in employment litigation include:

  • Exaggeration of the diagnosis. Because there is an overlap of symptoms between diagnostic categories, the symptoms claimed by a plaintiff can be construed by different experts to be indicative of a more or less serious condition. Two areas of particular relevance to employment litigation are the overdiagnosis of PTSD and the elevation of symptoms to the level of a “mental impairment” under the ADA.

  • Failure to evaluate a plaintiff adequately. The clinician must rule out pre-existing mental or personality disorders, prior traumas, and concurrent stressors as potential causes of the plaintiff's current condition yet many experts fail to take a comprehensive patient history, conduct appropriate psychological tests, interview collatoral sources, or review records.

  • Exaggerating the severity of the prognosis and the expected duration of further treatment. The reasons that symptoms arise (the originating cause) can be quite different from the reasons that symptoms persist.

  • Misuse of psychological testing. A consulting mental health expert can evaluate the reliability and validity of the testing procedures, the credentials of the evaluating expert, and the accuracy of the scoring and interpretation.

  • Blurring the expert’s role. An expert who is the plaintiff’s treating therapist may take on the role of advocate and try to win the case for the plaintiff.. Or, a biased defense expert may label a plaintiff a malingerer or diagnose a personality disorder without sufficient evidence.

Chinese general Sun Tzu said, “All men can see these tactics whereby I conquer, but what none can see is the strategy out of which victory evolved.” Using a consulting psychologist behind the scenes can be a powerful weapon for attorneys dealing with the complicated, difficult-for-juries-to-understand arena of emotional distress. Not only can they help the attorney translate dry psychological jargon into a compelling human interest story, they can help prepare witnesses, poke holes in opposing expert testimony, and spot junk science from a mile away. In the next article, we’ll take a look at how, once s/he is on board, you can get the best bang for your buck from your consulting expert.

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The copyright of the article Secret Weapons in Law, Crime & Justice is owned by Joni Johnston. Permission to republish Secret Weapons in print or online must be granted by the author in writing.
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