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Erard Forensicpsychologistyou 2014
Erard Forensicpsychologistyou 2014
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Family Advocate
More
FORENSIC
PSYCHOLOGIST
DO FOR YOU?
BY ROBERT E. ERARD
c Most
Most experienced
experienced
family law attorneys
family
are familiarlaw
with the
attorneys are familiar w
roles
rolesof psychological
of psychological
experts in child custody
experts
evaluations. in child custody eval
Although
Although child custody
child
evaluation
custody
reports are written
evaluation
for the reports are writt
court,
court,in practice
in they
practice
more often serve
they as instruments
more for often serve as instrume
settlement
settlementthan as the than
foundationas
for the
expert testimony
foundationat trial. for expert testim
Family
Familylawyers lawyers
also commonly use
also
psychological
commonly experts as part
use psychological ex
of
ofan Alternative
an Alternative
Dispute ResolutionDispute
(ADR) process, Resolution
both prior (ADR) process,
r
to
todivorce
divorce
(e.g., facilitative
(e.g.,or evaluative
facilitative
parenting timeor
media
evaluative parenting
tion)
tion) and inand in postjudgment
postjudgment cases (e.g., parent coordi
cases (e.g., parent coordination).
But
Butappropriately
appropriately
trained forensic psychologists
trained alsoforensic
can be psychologists also
helpful
helpfulin many in
othermany
ways behind
other
the scenes.ways behind the scenes.
&
*
REVIEWING
REVIEWING OTHER EXPERTS'
OTHER WORK
EXPERTS' WORK his
hisor
orher
her use ofseemingly
use of seemingly arcane
arcane sources
sources of knowl
of knowl
experts, particularly
Testifying experts, particularly court-appointed
court-appointed child
child
edge edge
(such as (such as technical
technical interpretations
interpretations of the results
of the results
custody evaluators,
custody evaluators,are
areoften
oftenhighly
highlyinfluential
influential
ofin in of personality
personality tests or tests or applications
applications of attachment
of attachment
judges' analysis
analysis of
of the
the children's
children's best
best interests
intereststheory
and in
and inor
theory or systems
family family systems theory)
theory) may may be difficult
be difficult to to
the court's
the court's ultimate
ultimatecustody
custody and
and parenting-time
parenting-time refute
refute based based on general
on general knowledge
knowledge or common
or common sense sense
As the
decisions. As the court's
court's own
own expert,
expert, who
who has
has often
often
alone.alone.
Thus,Thus, attorneys
attorneys seeking
seeking to discredit
to discredit or rebut
or rebut
spent dozens
spent dozens of
of hours
hourslearning
learningabout
aboutthe
theparties
parties
the and
and the opinions
opinions ofexperts
of such such experts on behalf
on behalf of clients
of their their clients
children and
the children and otherwise
otherwise investigating
investigating the
the case,
case,
oftenaa often find themselves
find themselves at a distinct
at a distinct disadvantage.
disadvantage.
court-appointed child
court-appointed child custody
custodyevaluator
evaluatorisisoften
often pre-
pre
Here theHere theyour
use of use of
ownyour own
expert expert consultant
consultant can can
sumed by
sumed by the
thecourt
courttotobebewell
well qualified
qualified to to present
present be indispensable
be indispensable in establishing
in establishing a more
a more even even playing
playing
impartial,scientifically
impartial, scientifically and
and clinically
clinically grounded
field field
grounded (Gould(Gould
et al.,et al., 2004).
2004). The consulting
The consulting psycholo
psycholo
opinions about
expert opinions about what
what kinds
kinds of
ofarrangements
arrangements
gist cangist can address
address the following
the following issues andissues
help and help
would be
would be best
best for
for the
thechildren.
children.Some
Somejudges
judgeseven
even prepare
prepare cross-examination
cross-examination questions
questions highlighting
highlighting
worry about
worry aboutmaking
making findings
findings that
that are are strongly
strongly at the following:
theatfollowing:
variance from
variance fromthe
thecustody
custodyevaluators
evaluator's recommenda-
recommenda • Did the court-appointed
• Did the court-appointed expert have adequate expert have adequate
tions, on
tions, onthe
thesupposition
supposition that
that thethe court
court of appeals
of appeals professional
professional training,
training, background, background,
and skill to and skill to
would find
would findthat
thatthey
theyruled
ruled against
against "the
"the great
great weight
offer the offer
weight opinionsthe opinions and that
and recommendations recommendations that
of the
of theevidence."
evidence." Moreover,
Moreover, the aura
the aura of special
of special were contained
were contained intestimony?
in the report or the report or testimony?
knowledgeand
knowledge and insight
insight surrounding
surrounding (Weissman,
the expert
the expert and and 1991)
(Weissman, 1991)
WINTER 2014 35
•1Appropriate
Appropriatereferrals
referralsfor
forpsychotherapy,
psychotherapy, batterer's
batterer's 1 personality disorders
personality disorders
intervention, or
intervention, or intensive
intensive outpatient
outpatient substance
substance abuse
abuse | (e.g., I time demands
(e.g., time demands
programs;
programs; | versus financial \ versus financial
•*Graded
Graded progressions
progressions from
from therapeutic therapeutic
visitation visitation I resources, excessive
\ resources, excessive
through
through increasingly
increasingly more relaxed supervised demands
more relaxed supervised for for
IP demands emoemo
parenting,
parenting, or other or other and
interventions interventions
safeguards; and safeguards; tional support,
tional support,
•• Identifying
Identifyingclients
clients
with severe
withmental
severe
illnesses
mentalor illnesses or
serious
serious personality
personality
disorders.
disorders.
Lawyers
Lawyers need
need
to consider
to consider
their ethical
their duties
ethical
Lawyers
Lawyers
(and duties (and
needneed
to consider
to consider
their their
liabilities)
liabilities) when
when serving serving
clients clients
of questionable compe ethical duties (and liabilities) when
of questionable compe- ethical duties (dnd lld
tence. These matters are treated in detail in the rules of
tence. These matters are treated in detail serving clients
in the ofof
rules questionable
serving clients of quest
professional conduct for each state and the rulings of state
professional conduct for each state and the competence
rulings of state COITipetenCe
bar
barcommittees
committees on professional
on professional
responsibility,
responsibility,
but many but many
states
states follow the American
follow Bar Associations
the American BarModel Rules
Associations Model
irrationalRules irrational
performance performance
expectations, expectations, malp
malpractice litigation
ofProfessional
of Professional Conduct
Conduct (MRPC) in this (MRPC)
regard. in this risk)
regard. risk) and
and professional ethicalprofessional ethical
MRPC
MRPC Rule 1.14,1.14,
Rule ClientClient
Under a Under
Disability,
a discusses
Disability,challenges
discusses challenges
posed posed
by such clients (e.g., by such
personal clients (e.g., perso
threats,
an
anattorney's duties,duties,
attorney's options, options,
and appropriate
andconsidera
appropriate considera-
attempted attempted
seductions, erosion of seductions, erosion
the professional/ personal of the prof
tions
tions in in
cases in which
cases "a client's"a
in which ability to make
client's decisions
ability to make decisions
boundary) may also boundary)
call for expertmay
advice.also call for expert advi
inconnection
in connection with
with the the representation
representation is impaired." The is impaired."
ConsultingThe Consulting
psychologists psychologists
with strong clinical back with strong c
rule
ruleprescribes that the
prescribes attorney
that must attempt
the attorney to maintain
must attemptgrounds
to maintain
are experienced
groundswithare
such
experienced
practical and ethical
with such practica
aa normal
normalattorney-client relationship
attorney-client with the client
relationship insofar
with the challenges
client insofar
and skilled
challenges
in techniques
andfor
skilled
asserting
inappropri
techniques for ass
as
asthis
thisis practically possible.
is practically A psychologist
possible. or other men orate
A psychologist other
professional
men- boundaries.
ate professional
Thus, they
boundaries.
can help attorneys
Thus, they can
tal
talhealth
healthprofessional may be able
professional may to be
advise
ablea lawyer with a lawyer
to advise with develop
develop effective effective
client-management client-management
strategies. In some strateg
aa mentally
mentallyill orill or cognitively
cognitively deficient
deficient client as to whatclient
is as tothey
cases, what
mayis cases,
also they
be called upon may also be
to intervene called
directly to upon to in
reasonable
reasonable or unreasonable
or unreasonable to expect
to expect about about the
the client's helpclient's
the client help
managethe
the client manage
stresses of litigationthe
or tostresses
coun of litig
decision-making
decision-making capacity, given thegiven
capacity, level ofthe
impairment,
level of impairment, sel
sel the client in histhe client
or her in hiswith
relationship or the
herattorney.
relationship with t
and
andalso
also
provide
provide
guidance
guidance
as to how
asbest
to to
how
explain
bestor to explain or
frame
frame legal
legal issuesissues to the client. CHALLENGING
to the client. PRENUPTIAL
CHALLENGING AGREEMENTS
PRENUPTIAL AGREEMENTS
MRPC1.14
MRPC 1.14further
further provides
provides that that in some
in some cases the Although
cases the Althoughmarriage
marriage licenses,
licenses, prenuptial
prénuptial agreements,
agreements, busi busi
attorney may
attorney mayseek
seekthe
theappointment
appointment
of of a guardian
a guardian ad litem,ness
ad litem, nessagreements
agreementsbetween
betweenspouses,
spouses,
mediation
mediation
settlements,
settlements,
conservator,oror
conservator, guardian
guardian or take
or take other
other protective
protective action action and
andjointly
jointly held
held property
property are are often
often takentaken atvalue,
at face face value,
they they
whenthe
when theattorney
attorney reasonably
reasonably believes
believes that
that the the client may
client maybe besubject
subject
to to challenge
challenge during
during divorce
divorce on theon the grounds
grounds
cannot
cannotact
actinin
hishis
or her own own
or her interest. Comment
interest. 6 to this6 to this
Comment ofof civil
civil incompetence
incompetence of of
of one one ofparties
the the parties
or the or the exercise
exercise
provisionstates:
provision states:"The
"The lawyer
lawyer may
may seekseek guidance
guidance fromfrom ofof
an an coercion or undue
coercion influence.
or undue PartiesParties
influence. sometimes claim
sometimes claim
appropriatediagnostician."
appropriate diagnostician." Indeed,
Indeed, the Michigan
the Michigan Bar Bar that
that they onlyentered
they only entered into
into apparently
apparently binding
binding agreements
agreements
AssociationStanding
Association Standing Committee
Committee on Professional
on Professional EthicsEthics or made
madecertain
certainfinancial
financial decisions
decisions because
because theythey
were were
has
has held
held that
thatif
ifaalawyer
lawyerbelieves
believesthat a client
that is unable
a client to to defrauded,
is unable threatened,terrorized,
defrauded, threatened, terrorized,oror "not
"not in in their
their right
right
make
make decisions
decisionsregarding
regardingrepresentation
representationor or
is incompetent,
is incompetent,minds"
minds"atatthe
thetime.
time.Mental
Mentalhealth
healthprofessionals
professionals
cancan
play
play
the lawyer
the lawyershould
should seek
seek corroborating
corroborating reports
reports fromfrom
profesprofes- an essential
an essential role
role in in evaluating
evaluating such claims.
such claims. Cases I have
Cases I have
sionalsor
sionals orprocure
procure the
the appointment
appointment of aof a guardian
guardian or con-
or con consulted
consulted on include
on include questions
questions such as:
such as:
servator[RI-51
servator [RI-51]. ]A- mental
A mental health
health professional
professional can the
can help help the • Did
• Did thethe client
client freely,
freely, knowingly,
knowingly, and without
and without coercioncoercion
attorneyestablish
attorney establish
an an objective
objective basis basis for deciding
for deciding whetherwhether enter
enterinto
into
thethe prenuptial
prénuptial agreement?
agreement?
theappointment
the appointmentof aof a guardian
guardian is warranted
is warranted and can and can • • Did the client
Did the clientintend,
intend, when
when commingling
commingling proceeds
proceeds
providea asubstantive
provide substantive defense
defense if attorney's
if the the attorney's decision
decision on on from aninheritance
from an inheritance (e.g.,
(e.g., by by placing
placing funds
funds in a jointly
in a jointly
thispoint
this point is challenged
is challenged later. later. held investment held
account or checking
investment account),
account or checking to
account), to
Peoplewith
People with severe
severe personality
personality disorders
disorders are moreare more likely
likely treattreat
these these assets
assets as as property?
marital marital property? Was the client
Was the client
thanothers
than othersto to
getget divorced,
divorced, to engage
to engage in child in childliti
custody custodyemotionally
liti- emotionally coerced
coerced into into doing so?
doing so?
gation,and
gation, andto to need
need intensive
intensive and extensive
and extensive legal assistance
legal assistance • Was •the
Was thepsychologically
client client psychologically coerced
coerced by his or her by his or her
in family
in family law
law matters
matters (Erard,
(Erard, 2012). 2012). Psychological
Psychological experts experts attorney
attorney into making
into making misrepresentations
misrepresentations to the media to the medi
canbe
can beasked
asked to meet
to meet with with prospective
prospective clients toclients
screen to screentor
tor and
and agreeing
agreeing to a settlement
to a settlement on the
on the record thatrecord that
outthose
out those whose
whose severe
severe personality
personality problemsproblems are likelywas
are likely to to plainly
was plainly notclient's
not in the in the client's
best best interests?
interests?
outstrip
outstrip the resources
the resources of the
of the attorney attorney
in question. in
Practical question. Practical Continued on page
Continued 4646
on page
WINTER 2014 37
• And
Andeven,
even, in in
oneone
casecase
in aninIowa
an court... had this had
Iowa court... (nowthis (now ■j®*™ Psychological
Psychological Institutes
Institutes of Michigan, of
P.C. Michigan,
in P.C
deceased) elderly, wealthy client with early signs of
deceased) elderly, wealthy client with early signs of |^W^j|il Bloomfield, Michigan, where he has a
Bloomfield, Michigan, where he has a
Alzheimer's
Alzheimer's disease
disease been competent
been competent tomuch
to marry his marry his much clinical
clinical and forensic
and forensic practice. He practice.
conducts He condu
younger
younger bride? bride? child custody evaluations, provides
child custody evaluations, provides
mediation
mediation and and
parentparent
coordination
coordination
CONCLUSION
CONCLUSION services, offers rebuttal testimony concerning
services, offers otherconcerning
rebuttal testimony experts'other experts'
Psychological
Psychological experts
experts can can do much
do much more more thanasserveopinions,
than serve as opinions, and provides
and provides consultation
consultation services forservices for attorne
attorneys.
custodyevaluators
custody evaluatorsandand parenting
parenting coordinators.
coordinators. In moreIn more
He is He is a fellow
a fellow of the American
of the American Psychological
Psychological Association, Associatio
challenging
challengingcases
casesrequiring
requiring
innovative
innovative
approaches
approaches
to ADR;
to ADR; the Michigan
the Michigan Psychological
Psychological Association,
Association, and the
and the Society forSociety for
preparingcross-examinations
preparing cross-examinations of opposing
of opposing experts
experts Personality
or even
or even Assessment.
Personality His writings
Assessment. on forensic
His writings onpsychology
forensic psycholo
challenging
challengingthe
theadmissibility
admissibility
of of
their
their
testimony;
testimony;
crafting have
crafting
par been
par- published
have in Family in
been published Advocate'
Family Family Court
Advocate- Family Court
entingplans
enting plansfor
for patients
patients with
with periodic
periodic mental
mental Review;Review;
or emotional
or emotional Psychology, Public Policy,
Psychology, andPolicy,
Public the Law; thethe
and Journal
Law; the Jou
unfitness;coping
unfitness; coping with
with clients
clients whowho
havehave serious
serious ofor
mental
mental or Child Custody;
of Child the Journal
Custody, of Personality
the Journal Assessment,Assessment;
of Personality
personality
personalitydisorders;
disorders;and
and
addressing
addressing
claims
claims and Psychological
of incompetence
of incompetence Injury and
and Psychological Law. He
Injury andcan be reached
Law. He can at
be reached at
rerard2000@ ameritech.net.
or coercion
or coercionin in making
making binding
binding agreements,
agreements, psychological
psychological rerard2000@ ameritech.net.
experts
experts can
canbe
beananessential
essential
resource
resource
in your
in your
legallegal
toolkit,
toolkit,
fa fa
Krauss,
Krauss,D.D.
A.A.
& B.
& Sales,
B. Sales,
The The
Problem
Problem
Books & More of
of Helpfulness
Helpfulness in in
Applying
Applying
Daubert
Daubert
to to
,, - t. , Expert Testimony: Child Custody
Expert Testimony: Child Custody
Family
Family Law Consultants
Law Bibliography
Consultants Bibliography Determinatio
Determinations in Family Law as an
Exemplar,
Exemplar, Psych., Pub.
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Pol., & L„Pub.
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E-discovery http://www.sequenceinc.com/tech
Hamilton,
Hamilton, William,
William, niques-used-to-hide-income-and-assets
Bill Hamilton's
Bill Hamilton's niques-used-to-hide-income-and-assets- Stahl, Philip M. & R
Stahl, Philip M. & Robert A. Simon,
in-divorce-cases/ Forensic Psychology Consultation
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Seven Deadly
Deadly Sins of Sins of
the Rule 26 the
(f) Rule 26 (f) in-divorce-cases/ FORENSIC PSYCHOLOGY C
in Child Custody Litigation: A
"Meet
"Meet andand Confer"
Confer" Conference,
Conference, Ass'n of
Forensic Ass'n of
psychologist Forensic psychologist IN CHILD CUSTODY L
Handbook for Work Product
Certified
Certified E-discovery Specialists,
E-discovery June
Specialists,
Ackerman,June Ackerman,
M. J., M. J., M. C. Ackerman, HANDBOOK FOR WO
M. C. Ackerman,
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E-discovery: E-storytelhng
E-storytelling Psychologists'
Delivers Practices Psychologists
Delivers Compared to the Practices Compared to the
Happy
Happy Trial Trial
Endings,Endings,
INSIDE INSIDE
Expectations Expectations
of Family of Family
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Law Judges and expert Law Judges and Vo
COUNSEL,
Counsel, July 2,Attorneys
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Custody Harris
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—E-discovery:
E-discovery: 7for
7 Principles Principles
Selecting for Selecting Child CUSTODY, 1(1), 41-60, 2004.
Essential Elements of Career
Retained
Retained Counsel, INSIDE COUNSEL,
Counsel, Inside Counsel,
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Counseling: Processes and
July16,
July 16,2013.
2013. (APA), Guidelines for Psychological
(APA), Guidelines for Psychological
Techniques, 3d ed.,
ed„ 2013,
2013, $40.80.
$40.80.
E-discovery:
E-discovery:The
TheUnfulfilled
UnfulfilledLast Evaluations in
Evaluations
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Family Law
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E-discovery: Not
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as Expensive
as Expensive as16-19,
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$19.99. $19.99.
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