Typical Cases

When is a Psychiatrist or Psychologist’s forensic opinion needed?

Here’s the gist: an allegation is made in a lawsuit claiming a triggering event caused, or exacerbated, a mental health condition. Drawing on my observations, I’ve found familiar themes. As a legal question, I defer you to an attorney.

Word watch: emotional distress, unintentional or intentional emotional distress, pain and suffering, intentional tort (a partial list.)

  • Ever since the motor vehicle accident I’ve been depressed.

  • Watching the accident was horrifying. Now I’m scared all the time, afraid to go out. I think I have PTSD.

  • Because of the event, I had a lot of surgery.  I’m in pain all the time. Nothing helps. I can’t cope.

  • Medication and therapy successfully controlled my Bipolar Disorder for years. Ever since this happened, it’s much worse and my medication isn’t making any difference. The whole thing is wrecking my life.

  • Mom rewrote her will 10 days before she died. The nurse said she didn’t even know what day it was.  We wanted to visit her in the hospital but [litigant] always turned us away and said she was too tired to talk. [NB: The psychiatrist, a licensed physician, is qualified to consider medical records and treatment history.]

  • Really? Do you think it was a bad decision? I don’t think I did anything risky. It isn’t my fault these things happen to me.

  • No matter how nice I am, people just treat me badly.  I know they are talking about me behind my back. I feel victimized. I have to protect myself.

Emotional Distress is a common catch-all in litigation. It is not “proven,” it is assessed and described by a forensic expert qualified to render an expert opinion.

On topic expertise and diagnosis: a guide for both experts and attorneys

Obviously, the “right” forensic psychiatrist or psychologist in a case will have special expertise in the specific issues at hand. As you know, not every forensic psychiatrist or psychologist is skilled and experienced to address the nuances of every claim. The DSM5 is large enough to make the point. Attorneys: look up the DSM5 online and check out its shipping weight to get my drift; you can also learn more about the DSM5.

Examples: A person with Borderline Personality Disorder might make unexpected decisions with unanticipated results. A person with a Paranoid Personality Disorder misperceives the intentions of others, muddying the waters. Alternatively, such a diagnosis can be irrelevant depending on the claim. Contiguous psychological problems are confusing to a layperson (which includes your attorney-client.) A jury will need a forensic expert opinion to understand the picture, even when there’s a puzzle with 10 pieces missing.

Alert for armchair psychologists with a license to practice law

Attorneys are as likely to be armchair psychologists as the next person. They speculate about what they believe is the problem (aka diagnosis) all the time. For attorneys out there: if you are settling into that armchair, it means there is an index of suspicion that you must act on to best represent your client.  An attorney needs a forensic expert qualified to make an accurate assessment, including a diagnosis free of speculation.

I met one attorney with a degree in psychology, and a pleasure to work with. We needed no Rosetta Stone . He was articulate about what he knew and what he didn’t know. So rare is this combination of legal and psychological knowledge that I bring it up as a singular experience.  You can assume it is unlikely to appear on your doorstep.

Training, experience, qualifications, skill, best-practices, and specialists.

A forensic expert witness of any kind conducts an assessment with best-practices. Further, the forensic expert is trained to render a forensic opinion to specific legal thresholds, varying venue to venue. An attorney needs an expert whose methods and opinions can withstand scrutiny, which we can assume opposing counsel will provide.  (Check out more at “Readworthy” and specifically AAPL Practice Guidelines for the Forensic Assessment).

 

The specialist’s specialist

Attorneys have cases where a specialist’s specialist is needed, i.e. someone whose input you need to better form your own opinions. In your field, you may be the only person who knows this. As the first point of contact, if you see the need for adjunct specialists, you have to speak up. Your forensic opinions will be all the stronger as a result. Some specialists from whom a forensic psychiatrist or psychologist might need input or information:

Neuropsychologist

Neurologist

Psychologist, if you are a psychiatrist

Psychiatrist, if you are a psychologist

Psychopharmacologist

Treating internist or family doctor of someone in the case at hand

Hospital

Opposing counsel’s expert

We’re back to that Rosetta Stone.The attorney will need to know why and what methods are scientifically sound (the criteria of Daubert and Frye.)  This is especially true of the expert acquiring scientifically sound data, such as the neuropsychologist’s measurements and skilled interpretation of results.

A note to physicians.  In some cases, the only existing information resides in medical records, or a physician’s testimony is being challenged. Psychiatrists know they are physicians. Surprisingly, many attorneys do not.  In fact, psychiatry and psychology are sometimes used interchangeably by attorneys and the world.

There is a special place in my heart for estate planning and estate administration, where family relationships, grief, tenderness, love and the occasional family feud are brought before the practice of law. Cases requiring an expert witness’ testimony include undue influence, testamentary capacity, competency, elder abuse and the extended instance of fraud–applying to both elders and the population at large.

Fraud can include fiduciary malpractice, mismanagement of investments, including pensions, IRAs, 401ks, and the securities they trade.  Occasionally these are class-action lawsuits and anyone can become a victim.  Physically and psychiatrically impaired people are especially vulnerable.  Diseases of the elderly, like dementia and complicated pharmacology, as well as simple ignorance of investing and business practices, add a layer of complexity that requires a forensic expert witness to assess.