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 communication problems between a forensic psychologist and the attorneys. We’re all human, and I’ve made my fair share of mistakes. But the goal for the Court should be excellence.
The common language of the law is not the product of necessity, precedent, convention, or economy, but it is the product of sloth, confusion, hurry, cowardice, ignorance, neglect, and cultural poverty.
Judge Lynn N. Hughes, U.S. District Court, Houston, Texas.
My role in the legal system is relatively minor. I’m simply a trained forensic psychologist tasked by the Court, or retained by an attorney, to provide specialized information presumably helpful in settling or adjudicating a legal case. The success of my endeavor in a particular case begins with productive communication with the attorneys. Over the years, I’ve learned that psychologists are extremely inconsistent with attorney communication for reasons noted by Judge Hughes: ignorance, neglect, hurriedness, and laziness. My short list of forensic psychologist problems and pitfalls follows:
Error #1: Not initially communicating with the attorneys: Talking with attorneys over the years, it appears commonplace that a forensic psychologist assigned to a case ignores the attorneys, contacts the parties, and jumps into the evaluation. Efficient, right? Not really! The attorneys, and at times the judge, are driving the need for a psychological evaluation or custody evaluation. The concerns of each attorney is central to the focus of the examination. Further, the provision of documents (legal, medical, behavioral health etc.) should either originate with the attorneys, or meet their approval in terms of discovery. My procedure is to immediately provide a letter of confirmation to the attorneys and judge after receiving the appointment to a case. The confirmation letter invites documents and describing areas of concern for the evaluation. The confirmation letter also refers each attorney to my website which contains a redacted Statement of Assent to be reviewed and signed by each party, as well as model standards and guidelines. In short, communication with the attorneys upon appointment to a case is critical.
Error #2: Ex-parte communication with an attorney. The rule of practice is well known: once an examination is underway, ex-parte communication is forbidden. All communication must involve all of the attorneys involved, including a guardian ad litem or attorney ad litem. Nevertheless, though the legal principle is a bright line, some psychologists take phone calls during an examination from one attorney without informing the opposing attorney. It’s a slippery slope, and the reasoning I’ve heard from colleagues ranges from “I was just listening – I didn’t offer any information” to “Joe and I were talking and he brought up a good point about the case.” I suspect that a few psychologists feel some allegiance to attorneys that routinely refer cases, and think their ex-parte conversations are simply collegial or “helpful.” My position is simple: the rules are the rules. I cannot afford to have my impartiality and credibility questioned by talking out of turn.
Error #3: Not providing a pro se litigant with the same communication as the attorney. Many forensic psychologists refuse to accept a case with a pro se litigant, or recuse themselves when a litigant becomes pro se. However, many litigants cannot afford an attorney and are pro se. When I have a case with a pro se litigant, I make a concerted effort to provide the same communication that I do for the attorney. And although I do not practice law or assert that I do, I also make a diligent effort to inform the pro se litigant about the process of an examination and their various legal rights.
Error #4: Not communicating with the attorneys after the evaluation. Once the examination is complete, and a report issued, I am available to discuss my findings with either attorney ex-parte. The examination, after all, was specifically to provide the Court with helpful information, and the attorneys are representing parties that are subjects of that information. I’ve found that some psychologists are annoyed at having to discuss their work, with the interesting notion that their report stands on its own merits and will make perfect sense to the attorneys, and ultimately, the judge. Part of my role is to educate others, in lay language, about the results of my work for the Court. As a side note, it’s always interesting to observe that attorneys often don’t call to discuss a report. I’d love to think a report that I’ve written is so clear that it is beyond question, but…
Error #5: Interfering with the attorney-client relationship. Most forensic psychologists, including myself, began a career doing therapy. The purpose of therapy, in part, is to be helpful to a client. The role of a forensic evaluator, on the other hand, is to be impartial. The forensic psychologist must resist the urge to provide a litigant that seems lost in the proceedings with opinions and guidance on their case. The Specialty Guidelines for Forensic Psychologists 2.04 states:
“Forensic practitioners aspire to manage their professional conduct in a manner that does not threaten or impair the rights of affected individuals. They may consult with, and refer others to, legal counsel on matters of law. Although they do not provide formal legal advice or opinions, forensic practitioners may provide information about the legal process to others based on their knowledge and experience. They strive to distinguish this from legal opinions, however, and encourage consultation with attorneys as appropriate.”
My rule of thumb is simple: I’ll share publicly available information with a litigant, such as the purpose of my report, my role, and basic legal terminology. And then, I’ll refer the litigant to their attorney or the Court administrator (pro se).
Communicating with attorneys is central to the role of the expert forensic psychologist. Period.