Expert Witnesses for the Defense: It's Not Just Physicians Anymore

Expert Witnesses for the Defense: It's Not Just Physicians Anymore

By: Morgan Gaynor

Usually, physical injuries are the focus of personal injury cases. However, accident victims sometimes suffer non-physical injuries after a trauma as well. For example, a person involved in a severe car accident may sustain a traumatic brain injury, develop post-traumatic stress disorder, or become severely depressed. Though the line can be hard to draw in many cases, these conditions are generally thought of as mental rather than physical.

People suffering from post-traumatic mental conditions often seek treatment or counseling from a psychologist. In turn, the defense usually hires a psychologist of its own in cases where mental injuries are claimed. Just as medical doctors for the defense minimize or deny physical injuries, psychologists hired by the defense try to discredit claims of mental injury.

Psychological testimony creates some unique problems in the courtroom. Physical injuries can usually be confirmed by x-rays or other tests like MRI. On the other hand, psychological conditions can be much more elusive. These conditions generally don’t show up on x-rays or MRIs, and their presence can only be deduced indirectly from methods like psychological testing. This means psychologists have a lot of leeway in arriving at a diagnosis for a particular patient.

Many psychologists reach diagnoses based on the fifth and most current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). While diagnostic criteria in the manual is dressed up in professional jargon, in some cases it is laughably vague. For example, the DSM-5 contains the following description of something called Somatoform Disorder:

This category applies to presentations in which symptoms characteristic of a somatic symptom and related disorder that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning predominate but do not meet the full criteria for any of the disorders in the somatic symptom and related disorders diagnostic class.

Good luck scientifically determining what this means. Even many psychologists have criticized it, pointing out that criteria this squishy can be applied to almost anyone.

This lack of clarity can play into the hands of a defense psychologist. Among the most devastating thing a genuinely injured person may hear is that they are “malingering” (basically, faking their injury or the severity of their symptoms) or being “hysterical” (being overly emotional or dramatic, which is a charge almost invariably made by a male psychologist against a female examinee). People who are genuinely in distress justifiably feel that these accusations add insult to injury. And of course, they can torpedo a case in the courtroom if a jury believes them.

Fortunately, a lawyer who does his or her homework can debunk these toxic pronouncements. Careful preparation can show that defense psychologists twist the data, ignore plausible explanations for a person’s behavior, or fail to perform valid tests. Others cherry-pick the information they receive, mentioning only things helpful to the defense while ignoring evidence of real problems.

Psychological testimony does present some complex courtroom challenges. However, preparation and attention to detail can expose dubious testimony effectively.

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