A Plethora of Experts

James E. Hord, Jr Ph.D.

Thanks to the dramatic increase of court appointments in recent years, the term "Expert" in mental health today often seems to have about as much meaning as the term "Manager" at a MacDonald's restaurant. There are virtually no requirements for the term other than the decision of the court. That is a problem for the courts however. My concern is for psychology.

Attorneys have complained to me in the past that they "can't get a straight answer from a psychologist". I reply that they cannot get a simple answer to a broad and complex question. The psychologist knows that to do so would be misleading to the court. In a custody case I was once asked the deep and probing question, "Doctor, is it a good thing for a son to spend time with his father?" Such questions do not seek information, but are designed to change the direction of the implications of preceding testimony. You must protect the perception of your testimony as well as the fact of your statements at such times. I pointed out that the generality of his question allowed only one generalized response, but here we were discussing a specific.

Many people seem to think that an expert should be someone with the answers to all questions. I think that is a dangerous perception. I had a ten-year-old boy in my office the other day who was an expert on virtually everything. Let's put him on one end of a continuum and put Socrates on the other. Socrates, brilliant for his time, is remembered for saying, "I know that I know nothing." Now draw a line somewhere on that continuum to separate the experts from the rest of the population. Surely that line will be closer to the Socrates end of the stick than to the 10-year-old, know-it-all kid. The true expert is someone who knows where his knowledge ends. He recognizes that which he does not know. Can we say that applies to us as we testify in court? I sincerely hope so because those most ignorant often speak with the loudest voice and those who know the least are often the most convinced of their understanding.

Not convinced? Then let's pose the question, "Why does the light come on in my office.

a. The child says, "Because you flip the switch."

b. The electrician says, "Because the switch let current flow to the ballast that turns on the neon tubes."

c. The electrical engineer says, "All of that, and because of the theory of electrical current, molecular bombardment creating light, the magnetic field production of electron flow….".

Theory? Doesn't that mean, we don't know? You bet'cha.

When I testify on one side of an issue and the other team hires a psychiatric expert, I wait for the magic phrase…. "the patient has a chemical imbalance in the brain". It almost always comes. Now, how can he say that? Simple… he just does. Is it based on anything pertaining to this patient? Nothing.  Did the psychiatrist measure any chemical balance? No. Can he name the chemical out of balance or tell us how far out of balance it was? No. Can he tell us how much balance was restored? No. Does he understand why this is a problem? No. So, what does the phrase actually mean? It means, "I decided to give the client medicine." Pity the poor psychiatrist. When it comes to diagnosis they have virtually no tools with which to ply their trade other than the patient's history. Don't we know that? Shouldn't they testify only on that basis?

I was permitted to watch the testimony of two psychologists who were called prior to me. Although no neurological data was involved in the reports or history, each was asked the question, "Doctor, is it possible that my client could have an obscure brain disorder that caused him to commit this crime?" Each expert replied, "Yes that is possible." Is that a correct answer? No. The correct answer would quite obviously be some version of "I don't know." By stating that it was possible, witnesses gave this fantasy (totally created by the defense attorney) the weight of science before the court where otherwise there was none. The pressure of living up to the image of "expert" was the pry bar for getting that repose. People just hate to say, "I don't know". But when that is the correct answer, it should be the only answer.

A mental health counselor in my area examined the alleged victim in a child abuse case. He testified in deposition that when asked what the defendant did to her, the child replied that she didn't remember. He opined that being unable to remember was always indicative of trauma, and that trauma was always sexual abuse. The defendant's attorney asked if the WWI concept of shell shock didn't produce the same symptom while not being indicative of sexual trauma. The witness held his ground and insisted that in his review of the literature, it was always indicative of sexual abuse. In response to the weight of the counselor's statements, the prosecutors raised the charge to first degree status and rather than risk a life sentence the defendant plead to a lesser charge and took a three year sentence.

Following that outcome I wrote to the counselor suggesting that his behavior was below the standards for his profession, and that he testified erroneously to issues beyond his level of training. He wrote back a very apologetic letter saying that he knew that he was wrong but was "pressured by an aggressive cross-examination attorney". He promised to never go beyond his area of training again and would avoid court work.

Later when I saw him in another office I thanked him for his letter and form of response. As I left, he commented that he regretted his statements but added, "Well, at least the guy was guilty." I asked how he knew that since there was virtually no evidence other than his deposition. He replied, "Because the child's mother (who brought the complaint) said so." So what he was telling me was that his "expert" opinion was in effect, a reflection of what he had been told about the case by someone else. I would argue that there was no expert input here.

The true expert knows the difference between science and "pop-science". Every attorney in my area (and probably yours also) recently received a letter from a family practice clinic in central Florida, run by a family counselor. The letter was to advise the attorney that in a recent study by a frequently quoted psychiatrist, children who were removed from parents "guilty of exhibiting parent alienation syndrome" showed improvement "100% of the time". When a friendly attorney sent me a copy of the letter for my comments, the neon sign in the back of my head went "TILT".

I looked up the study on the author's web site (http://www.rgardner.com/refs/ar8.html). He was the only investigator, he selected the "cases" to include, he called the parent who was given custody or visitation and asked if the child had improved as a result of being placed with that parent. I don't want to start to discuss the obvious flaws and biases of this design. However I would suggest that those of you doing custody work remember this paper, because the odds are good that you will encounter this "study" when it is presented as a reference in cross examination. At least now you know … the rest of the story.

So, are there guidelines for being a good expert? Well here are a few that make sense to me.

1. Enjoy court. It is not threatening except as a concept to the inexperienced (where we all start). Remember, you are the only one in the courtroom who is an expert on what you are going to say. You know far more about your field than the attorneys or the judge. You are trained to be an expert, so be one.

2. In your testimony, say what you did, what you found and what you opine. That's enough. The decisions as to outcome are not for you to make. They belong to the court. Respect that or suffer the consequences.

3. Learn to say "I don't know", and when to say it. Courts are impressed when you point out the limits of your knowledge because they then know that they can depend on what you claim that you DO know.

4. Enjoy the cross-examination. That truly is the "fun" part of the process. Stay alert, don't be led down garden paths and speak the truth. Cross should strengthen your testimony, not weaken it. What works in cross with lay witnesses, will not work with expert witnesses for several reasons, one being that the court gives you greater latitude in your response.

5. Remember that the person "on the spot" is not really you, but rather the attorney who's performance is being observed (and remembered) by his peers. His anxiety level will be higher than yours so have a little pity.

6. Work with the attorney who calls you to court to point out flaws in the presentation of other witnesses who present "pop" science, unfounded statements and opinions, and other errors. By doing so you will help raise the standards of the term expert in our profession, and those professions in our shadow.

I don't want to end this article without telling you of an experience of a psychologist whom I considered to be the consummate expert, the late Dan Overlade. Dan was testifying in court in Pensacola when the cross examination attorney asked rather sarcastically, "Now Dr. Overlade, you used the term 'subliminal influence' in your statements. Can you explain in simple layman's terms just what this means so that we simple folk can understand?"

Dan said, "Well, I think so. First of all, starting from scratch, everyone knows that learning and influence exists at many different levels….". He then talked for several minutes about the related concepts. Then he said, "Now when I began answering this question I said, 'starting from scratch, everyone knows….', and since then I have been watching the jury box. So far, eight of the twelve jurors have 'scratched' their 'nose'….. (then turning towards the bench and pointing his finger)….as the judge is doing right now!"

That Dan was the only psychologist I ever knew who could turn a court room into a great big skinner box.