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The Underutilization of Psychologists as Expert Consultants/Witnesses
Every month or so, I receive a call from an attorney colleague who is seeking a recommendation of an expert to address a psychological damage claim. Regardless of whether the attorney is representing a plaintiff or defendant, I suggest retention of a clinical psychologist. My specific referral varies depending upon the factual background of the claim, the age (and sometimes sex) of the plaintiff, and the nature of the psychological injury being alleged. I am always able to provide a name or two of a psychologist who I know has significant experience in assessing the type of individual and alleged psychological problem at issue in the case. The most frequent response to my referral may be of interest to the readers of this Bulletin - “Can’t you recommend a psychiatrist?” I explain that a clinical psychologist is preferable as a consultant and/or expert witness in litigation matters because, as compared to psychiatrists, they have been trained in the utilization of objective psychological assessment techniques. Further, their assessment instruments are empirically validated and subject to ongoing research. Since the matters at issue in civil litigation are primarily diagnosis, causation, and prognosis, psychiatrists are in no better position to provide opinion testimony, and are less able to produce objectively verifiable test results to support their conclusions. Nevertheless, the attorney on the line still often says, “That’s very interesting [or words to that effect], but I still want a real doctor!” Since I am also familiar with competent psychiatrists, I usually then give one of their names to my caller. But I hang up realizing that I have failed in my attempt to counteract the undeserved bias towards psychiatry in the courtroom. It has long seemed to me that attorneys prefer psychiatrists over psychologists as expert consultants and witnesses, but to support my impression, I ran a computer search of the last six months of civil trials in my state (California). Trials Digest (Available by subscription and at www.trialsdigest.com) is a weekly publication that provides detailed information regarding civil jury trials in the state. This database can be accessed for identities and qualifications of expert witnesses who have given testimony at trial. I am aware of other states that have similar services. In the past six months of Trials Digest trial reports, 61 psychiatrists gave testimony in civil actions, compared to 38 psychologists. I have made no attempt to calculate the statistical significance, but the numbers are striking given that there are so many more licensed psychologists in the state than there are psychiatrists. Psychiatrists appear to be over-represented as experts in matters for which, I believe, psychologists would be the experts of choice. Why do attorneys seek psychiatrists as experts? I surmise that it is because many attorneys simply do not appreciate the fundamental advantage that psychologists have in psychometrics, and they do not know how to utilize that advantage in court. Also, attorneys make their selection of experts based on what they believe are the biases and beliefs of judges and juries. In this regard, they are over-sensitive to the possibility that jurors will disregard or give less credence to a Ph.D. psychologist’s testimony as compared to that given by “the real (M.D.) doctor.” I find that the opposition’s psychiatrist is typically quite defensive (and unconvincing) when cross-examined regarding her or his training and experience in the administration and interpretation of intelligence, personality, and neuropsychological tests. In front of jury, a clinical psychologist, by contrast, can be quite impressive concerning the training received and knowledge about these matters. For every civil case that goes to trial, there are 100 that resolve before trial. Thousands of civil lawsuits in which plaintiffs seek compensation for psychological damages are filed every year. Both sides usually need expert consultation and review. Premium rates are paid for these services. I encourage psychologists to actively seek a fair share of this work. Psychologists who wish to do forensic work might be well-advised to join the American Academy of Forensic Psychologists, send their C.V.s to civil litigation attorneys in their communities, include forensic evaluations on their web sites, lecture at local bar associations, or just let fellow professionals know that they are interested in forensic work. There is a market in litigation consultation, which although competitive, affords an advantage to clinical psychologists over other mental health professionals. Given the existing biases and misconceptions among the attorneys who retain such services, psychologists should be aggressive in seeking the work. Attorneys do talk with each other about their experiences with experts. If you are employed even once, word will get around regarding your skills. John L. Fleer, Ph.D., J.D., is a psychologist and attorney with the firm Fleer, Daugherty, and Loftis in Orlind, California. He specializes in the defense of mental health professionals who have civil lawsuits or disciplinary actions. He can be reached at 925-253-8000. |
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| John L. Fleer, Ph.D., J.D. | ||||
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