Psychological_Evaluation

I have an “Oh No!” file. The “Oh No!” file is filled with psychological reports from my peers that are filled with procedural and even ethical errors. This blog focuses on dealing with the forensic psychologist that is clearly biased. We’re all human, and I’ve made my fair share of mistakes. But the goal for the Court should be excellence.

How many times have you heard a forensic psychologist referred to as a “hired gun” or “court whore”?  An attorney the other day that was bemoaning the reputation of a forensic psychologist in his community that was known for “writing a positive report for anyone” for a substantial fee.

When asked if I’m a hired gun, my standard reply is “No! I work by court appointment or as an impartial expert retained by an attorney. But I am a straight shooter”.  And I’m confident that many of my colleagues are also “straight shooters”. Unfortunately, some are not.

The hired gun prepares a psychological evaluation that is clearly biased. Typically, the hired gun repetitively and predictably produces biased reports. The hired gun may be difficult to detect, though, because most attorneys and judges have only a limited sample of the psychologist’s reports, making it difficult to detect bias across wide variety of reports.

Sometimes the hired gun simply produces a “junk” report. There is a forensic psychologist in town that is well known for his accomplishments early in his career. In recent years, however, his work product is primarily known for blatant bias. I reviewed his parenting psychological evaluation requested by one party’s attorney at a cost of $18,000. There was no description of the purpose of the evaluation, client consent, methodology or limitations in the report. His brief report contained, in total, the following conclusions and recommendations:

  1. Bright, pleasant young woman. Deeply concerned about children and their welfare.
  2. Warm, supportive relationships, close bonding of mother and children observed. Had fun, set limits and showed mutual affection.
  3. An excellent mother who had great sensitivity to the emotional, physical needs of children, no dangers, good values, good support network.
  4. MMPI Results: No psychopathology indicated.

The so-called psychological evaluation was obviously a sham. It met none of the professional standards or legal requirements of FRE 70s. But the court approved payment of his bill, and none of the attorneys raised an objection.

After reviewing this “report”, I concluded that the best way to evaluate a junk report is the cost per word. The cost for each word in the preceding report was “only” $327.27!

Apart from producing junk reports, a forensic psychologist carrying the tag of “hired gun” is likely engaging in one or more of the following patterns:

  1. Favoring the clients of a firm that always “uses” the psychologist. I call this “gotta keep the cash flowing” bias.
  1. Typically favoring the mother or the father in the report. I call this “carrying the flag” bias. Forensic psychologists carry their own baggage from troubled upbringings or failed relationships. I’ve witnessed a few male psychologists bemoan men consistently “getting shafted” in court. And a few female psychologists promoting the “tender years” doctrine always recommending custody with the mother for young children. In fact, some men are terrific parents and should have significant time with the child. Some young children are also very bonded and dependent on the mother, which may warrant greater time. To quote the law school maxim, “it all depends.”
  1. Opining in the absence of, or contrary to, objective information. I call this “Hail Mary” bias. The tipoff is that there is no logical connection between the fact pattern of the case and the opinions and recommendations. You can often spot this type of bias when a report provides abundant demographic information on the parents, less so on the child, and little on the issues. Miraculously, the psychologist provides detailed opinions and recommendations without foundation “in the best interests of the child”, or in contradiction to the fact pattern.
  1. Favoring the party that paid all or a significant portion of the fee. I call this “knowing which side your bread is buttered on” bias.” Forensic psychology typically relies on a retainer to cover fees. If one party provides all or most of the retainer, the psychologist may feel obligated to “deliver” a favorable report. This tendency is only increased if multiple retainers are requested over the course of the evaluation.
  1. Favoring the party that is responsible for the fee, but owes money when the report is released. I call this “someday my ship will come in” bias. There’s nothing wrong with a litigant making payments into the retainer as the work progresses. But if the evaluator releases a report without being paid, there can be a temptation to softball the findings regarding the obligated party. How likely is it to be paid if the report is detrimental to the litigant’s case?
  1. Providing prejudicial information during testimony that is not in the report or case files. I call this “sandbagging” bias. For example, a psychologist boldly proclaimed in Court that he had diagnosed one of the litigants with Bipolar Disorder, and was a risk to the children. Yet there was no record of a diagnosis in the medical or behavioral health records. There was no evidence of a diagnostic evaluation in the psychologist’s work product, or recognition that providing a diagnosis was inappropriate for this type of forensic case.

A forensic psychologist that is a hired gun demeans the profession and insults the court, the lawyers and the litigants. If you suspect that the psychologist is a hired gun, intensively question the “expert” on the areas noted above. The hired gun will soon be shooting blanks from the witness stand. A motion to reject the report would be in order. And, perhaps, a Board complaint.