GPSolo Magazine - Oct/Nov 2003
Cross Examining Experts in the Behavioral Sciences
By Terence Campbell and Demosthenes Lorandos
"Counselor, you may cross-examine." With that ruling from the judge, you rise and begin your attempt to undermine the testimony of Dr. Smith, the mental health professional who just finished testifying against your client.
Maybe it's a divorce proceeding. Dr. Smith's opinion is that your client is not a fit custodial parent or that the children are more "bonded" with the other parent. Maybe it's a wrongful employment termination matter. Dr. Smith believes that your client's complaints of anxiety, insomnia, and post-traumatic stress disorder are concocted or exaggerated. Or maybe your client is the defendant in a criminal proceeding. Dr. Smith opines that the defendant was fully conscious and aware at all relevant times and that the defense of "diminished capacity" is contrived.
Wouldn't it be convenient to have one treatise that contains various lines of cross-examination for each of these scenarios? Better yet, wouldn't it be even more helpful if that treatise were authored by lawyers and mental health professionals?
Cross Examining Experts in the Behavioral Sciences aims to accomplish these precise goals. It is, in fact, co-authored by an expert who holds a doctorate in human development and clinical psychology (Terence Campbell) and an attorney who has practiced as a licensed psychologist in both clinical and forensic settings (Demosthenes Lorandos).
Published by West Group, this is a two-volume loose-leaf treatise, priced at $245, with compact disc included. It originally appeared in 2001, and its first supplement was issued in 2002. Each volume contains its own separate table of contents, and there is also a comprehensive index.
The book contains entire sections addressing qualifications of the expert and how to challenge her clinical judgment, professional experience, and diagnostic classifications, as well as detailed discussions of both the objective and projective tests typically used by such experts. These tests include the Rorschach, the Thematic Apperception Test (TAT), the Bender-Gestalt Test, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Millon Clinical Multiaxial Inventory (MCMI), and the Wechsler Intelligence Scales (WISC). For each of these instruments, the authors propose lengthy and careful lines of questioning for the cross-examining attorney, along with realistic answers from the often non-cooperative witness. The Q&A format will be familiar to any experienced trial attorney and is particularly useful when read in conjunction with the accompanying text discussion.
Below is a typical example, drawn from Chapter 6 (Psychological Testing—Objective Tests):
Attorney: Are you familiar with Hathaway and McKinley's manual for the Minnesota Multiphasic Personality Inventory-2 published in 1989?
Psychologist: Oh, vaguely.
Attorney: How many omissions [items not answered] on Mrs. Jones' MMPI-2?
Attorney: And omissions are scored as what?
Psychologist: I don't know.
Attorney: Do you have a copy of the manual for the MMPI-2?
Attorney: All right. Isn't it a fact that the MMPI-2 manual specifically says that responses that are not coded by the patient [not answered] are scored as "cannot say" responses?
Psychologist: I assume so, yeah.
Attorney: Isn't it the case that more than ten "cannot say" responses make the profile a, quote, "questionable validity," unquote?
Psychologist: I don't know.
Attorney: Do you remember the manual saying there are three possibilities for MMPI-2 "cannot say" responses; one being mild reading problems, two being a lack of experience, and three being an overcautious or legalistic style?
Psychologist: No. But if you say that's what it says, I won't argue with you.
Beyond this, the reader will find very convenient the analysis of standards of practice for psychotherapy, again accompanied with suggested lines of cross-examination, as well as the full text of the ethical guidelines for all three categories of the most commonly retained mental health experts for litigation purposes: psychologists, psychiatrists, and social workers.
For the litigator, the compact disc included with the two volumes will prove especially useful. The disc contains all the forms that appear in the hard copy of the treatise, including all the sample lines of cross-examination, forms of motion, and memorandums of law, such as one that might support an in limine Frye-Daubert-Kumho Tire application to bar the trial testimony of a proposed mental health expert witness.
While there is ample discussion of the Diagnostic and Statistical Manual of Mental Disorders, reference is only made to the 1994 version (DSM-IV). In fact, the most recent version is DSM-IV-TR, published in 2000, well before the 2001 edition of this work, as well as its 2002 supplement. But this is a small quibble and will no doubt be corrected in the next supplement.
Overall, this work will be a welcome addition to the library of the trial practitioner likely to face adversarial mental health experts. If it is true that cases can be won or lost during cross-examination, it will be reassuring to have these two volumes as part of one's courtroom arsenal.
Charles C. Abut practices law in Fort Lee and Springfield, New Jersey. He can be reached at firstname.lastname@example.org
Note: West group is a corporate sponsor of the General Practice, Solo and Small Firm Division; this article appears in connection with the Section's sponsorship agreement with West Group. Neither the ABA nor ABA Sections endorse non-ABA products or services, and this review should not be so construed.