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Preparing For A Custody Trial

Introduction

The following is excerpted from a larger article. It covers, with unusual depth, wisdom and nitty-gritty clarity, preparing for and living through a custody trial.

Commentary is invited--especially since there are at least a few controversial points mixed in amongst the huge majority of items about which there would be no disagreement.

One involves the issue of being "prepared" by an attorney (a "majority" point of view). I take an opposite (minority) stance in my writings, but would agree with the author's back-up recommendation.

Another area of controversy, of far greater consequence, involves what to bring to court. The issue of what is legitimately discoverable is enormously complex. At the opposite end of the present article's recommendation (which seems to be to bring everything) would be the Schutz-Dixon-Lindenberger-Ruther advice that a "copy of the report" should be sufficient.

And then there's the old "comprehensive versus one-sided evaluation" debate. While everyone would agree that the former path is always the better first choice, there is certainly room for the position that a limited evaluation could offer the court some truly useful information.

Items of controversy notwithstanding, this is one of the finest, most informative and helpful articles I have encountered in the custody field.


From Martindale, D.A., Martindale, J.L., and Broderick, J.E. (1991). Providing expert testimony in child custody litigation. In Keller, P.A. and Heyman, S.R. (Eds.), Innovations in Clinical Practice: A Source Book, Vol. 10 (pp. 481-497). Sarasota, FL: Professional Resource Exchange. Copyright 1991 by Professional Resource Exchange (P.O. Box 15560, Sarasota, FL 34277-1560) and reprinted by permission.


PREPARING FOR TRIAL


MEETING WITH THE ATTORNEY

In our judgment, preparation for trial with the attorney who has requested that you appear is essential to insure a smooth presentation of your testimony under direct examination. Even when you have been appointed by the court to conduct an impartial assessment of comparative custodial fitness, if the matter comes to trial it is because one party desires that your recommendations not be implemented and the other party wishes your findings to become the basis for a decision by the court. Even when it is the court that has requested your report, it is not the court that requests your testimony. You are called by a particular party, are a witness for that party, and it is appropriate that you prepare with the attorney representing that party. If all this sounds adversarial, it is our view that you are an advocate for the children, that you have presumably drawn some conclusions concerning the custody or visitation arrangement that is in the children's best interests, and it is appropriate that you advocate on behalf of the children.

Some attorneys feel that the appearance of impartiality is tarnished if you plan your testimony with the attorney and will prefer that you not meet before trial. We suggest that you communicate your belief that your effectiveness as a witness is enhanced by appropriate preparation and is impaired by lack of preparation. If the attorney is unrelenting, there is an alternative which may be acceptable.

Prepare a list of questions that you would like the attorney to pose in order to afford you the opportunity to present data that you believe to be of importance. This approach provides the attorney with the comfort of knowing that it will not seem that you have been told how to testify and will provide you with the comfort of knowing that you will be able to communicate to the court the information that you view as being of most significance to the decisions that must be made.


Prepare to Prepare
Prior to meeting with an attorney, extensive preparation is encouraged. Review your advisory report, making sure that you are clear regarding the significant points that need to be brought to the court's attention. In general, we suggest organizing your presentation into four segments. First, discuss what it is you are looking for; that is, the criteria you employ in order to assess comparative custodial fitness. Second, describe as operationally as possible the ways in which you assess those qualities that you have indicated are of importance. Third, report your findings in terms as objective as possible, though some findings may require subjective forms of reporting. Finally, organize your findings and state your conclusions.

An example of this manner of organizing your information follows. You have stated that one of your criteria is parenting skills, and, in elaborating, you have explained that one parenting skill of importance to you is the ability to perceive with some degree of accuracy the personality characteristics and, where applicable, special emotional needs of the children. You have explained that in assessing this parental quality you pose a series of standard questions, one of which is "Describe your children to me." You then report that Mrs. Smith's response was to describe her daughter as "overweight, with stringy brown hair. Somewhat clumsy." You report that Mr. Smith's response to the same question was to state that their daughter is "sensitive and somewhat insecure, but, nevertheless, outgoing. She has a really great sense of humor." It is then possible to interpret your findings, explaining that Mrs. Smith's description was couched in physical terms and that her descriptors were primarily negative, whereas Mr. Smith described personality characteristics and portrayed a generally positive picture. With this and other corroborative information, you can then conclude and explain to the court that Mr. Smith seems to be more in touch with who his daughter is as a person, as opposed to a physical entity, and that his awareness of her strengths (great sense of humor) and her difficulties (insecurity) increases the probability that he will be sensitive to and responsive to her emotional needs.

Also bring to your meeting with the attorney an organized summary of your evaluative sessions, indicating whom you saw, for what period of time, and on what dates. Finally, show to the attorney whatever information you may have gathered from other sources (guidance counselors, physicians, previous therapists, etc.) and discuss with him or her the admissibility of this information. In most jurisdictions with which we are familiar, experts are permitted to offer testimony that includes information from third parties if that information is of a type generally viewed as reliable in assisting the professional in forming an opinion. All clinicians should be familiar with whatever precedents may bear upon this matter in their own jurisdictions.

THE TRIAL
It is essential that the reader bear in mind that, though our experience has been significant, it has been in one jurisdiction. Based upon consultations with colleagues who have worked in other jurisdictions, it is apparent that there is much variability from one jurisdiction to another, as well as from one judge to another.

GOING TO COURT

What Is Your Role?
Contemplate your role in the judicial process. In discussing the part professionals play in the determination of custodial placement, Melton et al. (1987, p. 330) express the view that "there is probably no forensic question on which overreaching by mental health professionals has been so common and so egregious." Faust and Ziskin (1988) insist that "professional clinicians do not in fact make more accurate clinical judgments than laypersons" (p. 32). If you agree, then it is inappropriate that you perform evaluations of comparative custodial fitness. Those of us who conduct such evaluations presumably are convinced that we can be of assistance to the courts in making difficult decisions that must be made.

Clinicians who are insecure concerning their ability to provide useful information to the court make poor witnesses. So, too, do clinicians who display grandiosity and seem to be suggesting that, because of their training, skill, perceptive abilities, and so forth, it is not possible that they might be mistaken. Gordon and Peek (1989) in an unpaginated "important notice to test users," which introduces the manual for The Custody Quotient, wisely remind us that "psychological information is only one kind of evidence that a court ... may consider when deciding issues of child custody." Though you will ordinarily find that your professional skills are respected and your opinion highly valued, you are, nevertheless, in a subordinate position vis-a-vis the presiding justice. In our view, your demeanor should communicate a realization that the final decision rests with the court; it is not yours to make. Be aware that some judges (though they may agree to your designation as an expert witness) feel that input from mental health professionals must be tolerated, but is really nonsense.


Attire
We will not discuss the issue of attire at length, but wish to emphasize the importance of appropriate dress. Many mental health practitioners are reluctant, within the context of their offices, to dress too formally because they feel that formal dress may have a distancing effect. When going to court, we suggest you dress as attorneys dress.


What Should You Bring With You?
Being well-organized is an important component in impression management. As psychologists, we know that clinical skills and organizational skills do not necessarily go hand in hand, but your image as a competent, thorough, and fair evaluator is enhanced when you bring all your data with you and are able to answer any question (without undue delay) by accessing the needed information. We suggest you bring with you the DSM-III-R, to which you may wish to refer, and any books or articles to which you may have made reference in your report and which the attorney may wish to have admitted into evidence.

We very strongly suggest that you bring everything. We are aware that this advice conflicts with advice given elsewhere. Meyer, Landis, and Hays (1988, p. 241), for example, state: "Do not bring .. overly detailed notes to the courtroom unless required to do so." In our judgment, if you fail to bring something, it is quite likely that it will be assumed that you neglected to bring the item because it contains information which you would prefer that the court not see. We know of a situation in which the cross-examination of a colleague (whose office was approximately a half-hour from the court) was interrupted because session notes had not been brought to court. The witness was instructed to retrieve his notes from his office and return to the court.

We suggest that you bring your original notes and at least one photocopied set of those notes. In our experience, it is not uncommon for the court to request that you relinquish your notes. We have indicated previously the advantage of having a photocopied set of your notes on which you can make notations. If you are concerned about leaving your original notes and if you have a second (unaltered, unadorned) photocopied set, the court will ordinarily permit you to leave a photocopied set, as long as a page-by-page examination reveals the copies to be accurate representations of the originals.

Our receptivity to opening our files to inspection by the opposing attorney is based upon the view that our evaluations have been conducted in an objective manner and that the strengths and deficiencies of both parents are accurately recorded in our notes and fairly represented in our reports. It is probably prudent, however, to avoid advertising the availability of one's notes (thereby inviting the kind of scrutiny that provides fuel for an active cross-examination).


Organization.
Because the ability to maintain your composure is one of the keys to smooth testimony, and because you may encounter a situation in which you will feel pressured to locate information, we suggest that you bring all materials in carefully indexed loose-leaf notebooks. If the written material on a document is so close to the edge that portions of it will be destroyed by punching the holes needed to place it in a loose-leaf binder, place the document in a pocket and place the pocket in its appropriate position in the notebook. We have found that it is useful to have one loose-leaf with session notes and phone notes and another loose-leaf with correspondence, test results, any forms the participants have completed, court documents, copies of your report, a copy of your vitae, and so forth. With a good index you can locate the notes from a particular session or a particular phone conversation in a matter of seconds; the advantages of being able to do so are enormous.


Mental Preparation and Assorted Tidbits.
Never assume the accuracy of what you have been told concerning the amount of time to set aside. Rarely will you find yourself leaving court at the time you had expected to. If you have been told to anticipate a full morning of testimony, count on spending a day. If you have been told to put aside a day, it is quite likely that it will run into two. Make appropriate arrangements with patients (such as instructing them to call your office before departing for their appointments). If appropriate arrangements have not been made, you may find yourself watching the clock and getting tense as you are attempting to concentrate on your testimony.

Bring a snack and bring work to do, because a lot of your time may be spent waiting. In some jurisdictions, you should be prepared for a screening similar to the one that occurs at an airport. Your belongings may be inspected, and you may have to pass through a metal detector. You will not be permitted to bring any type of recording device into the courtroom with you. You may also be barred from the courtroom if testimony is being given by another witness. Be cordial with the opposing attorney and with an opposing expert, if one has been invited by the opposing attorney (either to offer testimony or to sit at the attorney's side and assist in the preparation of questions for your cross-examination). Though you may feel as though you are under attack, remind yourself that it is not to be taken personally. Frequently an attorney who has come at you like Attila the Hun will meet you in the hall afterwards, cordially shake your hand, and ask for your business card. Try and be comfortable without behaving too informally.


On Helpfulness
It goes without saying that courts look with disfavor upon litigants, attorneys, or experts who are obstructionistic, yet they are accustomed to dealing with obfuscatory tactics. Imagine the court's pleasure in encountering someone who is truly interested in providing the court with all the data it needs in order to make an informed decision! When what you bring and the manner in which it is organized make it clear that you are interested in assisting the court in its difficult task by providing as much information as you can, your reception will be very different from what it would be if you appear to be making the court's job difficult (e.g., by not having your notes with you).

We suggest that you even go so far as to bring with you items that it is clearly not your responsibility to provide (such as an extra copy of your advisory report, a copy of the court order specifying your assigned task, etc.). If your report was court ordered, you will have sent your advisory report to the court in advance of your appearance as a witness, and it should be available to the presiding justice at the time of trial. The system, however, is not perfect. We know of cases in which, following a motion to enter the advisory report into evidence, it was discovered that the report was not where it ought to be. Your ability to save the day (perhaps, literally - by producing the needed document, thereby making an adjournment unnecessary) will be very much appreciated.

Despite obvious status differences, in most courts the various personnel (judge, law clerk, court clerk, court reporter, court officers) view themselves as part of a team. The desirability of being courteous to the judge is as obvious to most witnesses as is the advisability of being courteous to a police officer who stops you in connection with a traffic infraction. What, perhaps, is not so obvious is the fact that courtesy to other court personnel is appreciated by the court. The job of the court reporter is difficult, yet much of what makes it difficult is preventable if witnesses are sensitive to the needs of the court reporter. The court reporter needs to hear you. Speak clearly and with sufficient volume. Spell your name (if it is more complicated than "Smith") and spell (or, at least, volunteer to spell) any terms you may use with which the court reporter may be unfamiliar, though the use of professional jargon should be avoided wherever possible. Avoid speaking while someone else is speaking.


INTRODUCTION OF THE EXPERT WITNESS



Reading books and articles on the subject of providing expert testimony, you would be led to believe that your introduction to the court via a recitation of your impressive credentials is routine procedure. This is not the case. As a matter of fact, the more impressive your credentials are, the more likely it is the opposing attorney will not want them recited for 20 minutes and will agree to acknowledge your expertise, voluntarily giving up his or her right to challenge your designation as an expert witness. This is particularly true in cases in which the opposing attorney is aware that you have been appointed by the presiding judge. Presumably, the judge was impressed with your credentials or you would not have been appointed. Opposing council may feel it is wiser to agree to your designation as an expert than to have the judge's memory refreshed concerning your experience in the field.

Despite the fact that a recitation of your credentials may never occur, it is wise to be prepared. Our suggestion is that you not only be familiar with your own Vitae, but that you offer to provide the attorney with whom you have prepared a script in which all the appropriate questions are posed, so that you can provide information concerning the following areas: (a) formal education; (b) licenses, certificates, and diplomates earned; (c) academic experience; (d) any community service (pro bono work) in which you have been involved; (e) supervised experience; (f) independent clinical or forensic experience; (g) supervisory experience; (h) pertinent publications and presentations; (i) membership and activities in professional organizations; (j) any specialized training of particular relevance to the case being tried; (k) information concerning the volume of your practice and the percentage of your cases that involve work with couples, families, and children; and (l) the courts in which you have previously provided expert testimony.

It is important to recognize that even if your designation as an expert has taken place without a hitch, it is possible that opposing council will, at some point during your testimony, rise and state that your expertise in a specific area (e.g., the development of morality in 3-year-olds) has not been established and that you should be barred, therefore, from offering testimony with regard to that matter.


DIRECT EXAMINATION



If there has been appropriate pretrial preparation, direct examination of the expert witness by the "friendly" attorney usually progresses fairly smoothly. Keep in mind that the attorney is accustomed to an adversarial climate and you have been retained for the purpose of conducting, and reporting the results of, an impartial examination. All parents have strengths and deficiencies. The attorney conducting the direct examination may attempt to lead you in a manner calculated to get you to overstate the strengths of his or her client's parenting abilities and may not ask the questions that might elicit information concerning that person's deficiencies. Though we do not claim expertise in the practice of law, it is our view that more experienced attorneys have learned that this tactic is counterproductive. If you have prepared a report and are offering testimony favorable to their client, anything that diminishes your credibility reduces your usefulness to them as they advocate for their client. Encouraging you to overstate the strengths of their client and omit or unrealistically downplay the client's deficiencies places your objectivity and credibility at risk.

As you offer testimony concerning the non-favored parent's deficiencies, be certain not to engage in character assassination. If the need arises to make reference to individuals who are not principals in the matter before the court, do not be disrespectful of them either. For example, if a 45-year-old father has been residing with his 25-year-old secretary, mention only those aspects of the situation and participants that can be described objectively. Avoid pejorative terms that could be applied to either.


Caution: Bumps Ahead
An opposing attorney may experience extreme discomfort listening to your direct testimony progressing too smoothly and may attempt to introduce some bumps. A common tactic is to raise objections. Some attorneys only raise objections that they truly believe to be substantive, and many, if not most, of the objections raised by such attorneys are sustained. Some attorneys, however, raise objections for the specific purpose of interrupting the smooth flow of testimony. If objections are raised, stop speaking. Sit quietly and dispassionately and await instructions from the bench. If the objection is sustained, the attorney conducting your direct examination will pose the next question. If the objection is overruled, you will be instructed to continue. Your powers of concentration may, on occasion, be put to the test. Listen as carefully to yourself as you have been trained to listen to a patient. Try to keep track of where you were at the time of the interruption and pick up where you left off. If you feel that you need some assistance to get back on track, ask that the question you were about to answer be read back to you by the court reporter. If you had already started to answer at the time that the objection was raised, ask that the portion of your answer that had already been given be read back. As a matter of court protocol, your request should be addressed to the judge, not to the court reporter.


Admission of Your Report into Evidence
Ordinarily, at the conclusion of your testimony, the attorney who has been conducting the direct examination will ask that your report be admitted into evidence. Almost inevitably, the opposing attorney will object and may cite the Best Evidence Rule as the basis for the objection. It can be argued persuasively that when two things (your testimony and your report) contain essentially the same information, only the better of the two sources of information should become part of the trial record. It may be argued that your testimony is the better source of information because your testimony can be subjected to the scrutiny of cross-examination, whereas your report cannot. It has been our experience that justices presiding over cases involving the custodial placement of children want as much information as they can get their hands on, and, particularly if your report was prepared at their direction, such objections are more frequently than not overruled. Be prepared, however, for the possibility that a judge may sustain the objection and deny admission of your report into evidence.

CROSS-EXAMINATION

Many professionals eschew court-related work because they have heard hair-raising tales of what cross-examination can be like. We interrupt here for the purpose of extolling the virtues of court-appointed work.

Prudent cross-examining attorneys are mindful of the fact that the presiding judge views you as a competent professional and that attempts to make you appear to be an incompetent fool are not likely to be well-received by the judge. Less prudent attorneys may still pull out all the stops, particularly if your performance under direct examination has been good and the opposing attorney feels there is nothing to lose and something to gain by getting you to foam at the mouth.


General Observations
If you have conducted your evaluation well and have prepared well, the only major threat to the cogent presentation of your findings and recommendations is an unanticipated event that causes you to lose your composure, followed by your train of thought and your aura of authority. Organization goes a long way in making it possible for you to maintain your composure under the pressure of cross-examination. Though you are ordinarily expected to offer your testimony without referring to notes of any type, there may be situations in which you will ask that the court permit you to refer to your notes in order to refresh your memory, and there will be times when the opposing attorney will forcefully demand that you read aloud some entry from your notes. In the first instance, the court's willingness to permit you to refer to your notes will usually depend, in part, on how long it takes you to find that which you are looking for, though some courts will flatly deny such requests. In the second situation, the more quickly you can locate that which the cross-examining attorney has demanded that you read, the more likely you are to be able to maintain your equanimity.


Cross-Examination Tactics
Regardless of the issues upon which the opposing attorney wishes to focus, certain tactics may be employed. The attorney may deliberately pose questions in such a manner as to clearly communicate the message that he or she is unimpressed with your report, your previous testimony, and you. You may be addressed as Mr., Mrs., or Ms. (rather than as Dr.). No matter what buttons may be getting pushed, appear unperturbed. The judge knows your credentials and will not forget them simply because opposing council fails to acknowledge them. A similar tactic involves the (presumably) deliberate mispronunciation of your name (if it is amenable to mispronunciation). Again, the objective is to precipitate an unprofessional reaction. Attorneys hoping to elicit such a reaction (or, at least, disturb your composure) may make reference to "your supposedly unbiased evaluation." They may even try to rattle you by tossing around nasty descriptors such as "insensitive," "unethical," and so forth.

A frequently employed tactic is to misrepresent some component of your previous testimony. If you turn this tactic to your advantage, the attorney will abandon this approach without delay. You could simply indicate that you disagree with the manner in which your previous testimony has been presented. Such a response neutralizes the attack, but nothing more. It is far more effective to state "As I recall my testimony ... (and then restate your testimony)" or to request that the court reporter locate and read back your testimony on the subject about which you are being questioned. By dealing with the attorney's distortion in this manner, you have taken advantage of the opportunity to have an important point restated. Restating your testimony is more effective, though the cross-examining attorney may interrupt you and object to your being "unresponsive to the question." Requesting that your previous testimony be reread may simply prompt the attorney to withdraw the question.


An example of testimony distortion by the cross-examining attorney and the witness' response to it is herewith provided. In an advisory report prepared at the court's direction, an impartial examiner had described the mother as the preferred primary custodian of two young children but had expressed significant reservations about some emotional difficulties which, in the examiner's view, required psychotherapeutic intervention. The examiner felt that the mother's excessive anger toward the father would, if not constructively dealt with, prevent her from fostering a healthy relationship between the children and their father. Additionally, the examiner cited numerous examples of behaviors or attitudes that in his view were characteristic of "omnipotent self-assurance." In the advisory report, the examiner had described an evaluative session conducted with the mother during which she had described her vehement objection to the father's suggestion that they subscribe to Parents magazine and her declaration that "There's nothing in any magazine that's going to tell me something I don't already know about raising children."

The case came to trial because the mother, though favored, would not accept an out-of-court settlement that would have included the stipulation that she obtain psychotherapy. The issue of the mother's omnipotent self-assurance was raised during direct examination of the witness. The issue was returned to during cross-examination, and the interchange between the cross-examining attorney and the witness follows, with commentary.

Attorney: "In your report and in your previous testimony, Doctor, you cited Mrs. Smith's disinterest in subscribing to Parents magazine as an indicator of omnipotent self-assurance. Is it your professional opinion that parents who are not interested in subscribing to Parents magazine are displaying omnipotent self-assurance?"

(Opposing council's question to the witness was preceded by a statement in which the witness' position was misrepresented. It was not her disinterest, but the vehemence of her objection to her husband's expressed wishes and the reason she provided for refusing to subscribe which was of relevance. The other attorney could have objected, but did not do so. The witness could have answered the question, saying "No." Doing so, however, would have allowed the misrepresentation of his view to stand uncorrected.)


Witness: (To the Judge) "Your honor, I am in need of instruction from the Court. Mr. Jones' question to me was preceded by a misstatement of fact. I am unsure how I should respond."


(To the Cross-Examining Attorney) "Mr. Jones, you must paraphrase or quote the statement about which you are inquiring; you must ask the witness if he recalls having made that statement in his report or in his previous testimony; if he says "Yes," you may ask your question; if he says "No," and if you are certain that the statement does, in fact, appear in his report and was made by him during direct examination, you may ask that he refer to his report for the purpose of refreshing his memory, you may ask that the court reporter read back the applicable testimony, and you may then pose the question again."


(The cross-examining attorney responded to the court's instructions by withdrawing the question!)

By far the most common and most exasperating tactic is the formulation of questions concerning complex issues in such a manner as to require "Yes" or "No" answers. Many judges will respect your refusal to have your professional opinions distorted and will honor your request that the question be reworded in such a manner as to permit an answer other than just "Yes" or "No." In most cases, the cross-examining attorney does not want a more complete answer and will withdraw the question. Judges are bound by certain rules (procedural rules and rules of evidence), but where discretion is permissible, most judges will be supportive of the court-appointed expert's desire to present his or her opinions fully and in a manner free from distortion. Especially in those situations in which you have been court appointed, bear in mind that the judge would not have appointed you if he or she were not interested in your opinion.

Coping with Cross-Examination
One of the most important guidelines concerning your responses to inquiry by opposing council relates to the speed with which you respond. This interchange is not like social conversation in which questions are ordinarily responded to without delay. Always pause 2 or 3 seconds before responding in order to give the friendly attorney an opportunity to object to the question that has been posed. Once you have answered, objecting to the question is virtually pointless. Training yourself to pause before responding also lowers the probability that you will respond emotionally to a provocative question.

Others who have written on this subject (e.g., Melton et al., 1987; Meyer et al., 1988) suggest that, in responding to questions from a cross-examining attorney, the witness should face the judge. We respectfully, but strongly, disagree. Though we can appreciate the advantages of establishing eye contact with jurors during a jury trial, juries are not involved in litigation concerning custodial placement. The advantages of facing a judge during a bench trial appear to us to be minimal, and the disadvantages seem significant. Presumably, the witness faces the cross-examining attorney as each question is being posed. In order to address answers to the judge, the witness would have to turn more than 90/ (in a typical courtroom set-up, where both the witness and the judge face in the same direction). In our view, addressing responses to someone other than the person who has posed the questions (and turning dramatically in order to do so) looks unnatural, feels unnatural, and, therefore, requires significant concentration at a time when your powers of concentration can be better utilized. Most judges before whom we have appeared take copious notes frequently, even if you look at the judge, the judge is busy writing and is relatively unconcerned with the issue of eye contact with the witness. Obviously, when questions are directed at you from the bench (as frequently occurs in child custody proceedings), it is proper that you turn to listen to the question and remain facing the judge as you respond to the question. Listen with great care and respond with equal care. It is likely that you will be asked: "Are you being paid for your testimony today?" You are not being paid for your testimony, but for the time required to give it; therefore, your response should be either "No, I am not" or "I am being compensated for the time required to appear here today." Again, we remind you that courtroom dialogue is governed by rules very different from those that govern social dialogue. In a social situation, either of the responses we have suggested might be disapproved of, and the questioner might say: "Don't be a smart aleck, you know what I meant." Within the context of a trial, neither the judge nor anyone else will view you as a smart aleck. You will be viewed as
a witness who listens carefully to the wording of the question and who, in replying, chooses words with precision.

Recurring Themes
Certain issues are raised with great frequency during cross-examination of expert witnesses, and it is prudent to be prepared to address them. Despite the fact that you have been court appointed for the purpose of conducting an impartial examination, opposing council will frequently suggest that bias has been generated in one of several possible ways. You may be asked about your previous professional interactions with the attorney representing the favored party. You may be asked about the possibility that one party incurred your wrath by making tardy payments. Questions may be asked concerning social, economic, or professional similarities between you and the favored party (presumably leading to a bias in that person's favor).

Extenuating circumstances will often be alluded to by the attorney for the nonfavored parent. You must be prepared to answer questions concerning the role of psychosocial stressors; economic pressures (especially those attributable to financial irresponsibility by the other parent); physical illness, in either the parent or the children; and less than ideal test-taking conditions, if tests have been utilized. Attorneys with some knowledge of research issues may ask how confident you can be that the samples of behavior you observed are representative of the person's behavior in nonevaluative, real-life contexts.

The following exemplifies the lead-in to a cross-examining attorney's attempt to attribute various problematic behaviors in her client to psychosocial stressors.

Attorney: "Doctor, I see you have with you a copy of the Diagnostic and Statistical Manual of Mental Disorders. I commend you for having brought a copy with you to court today, and I assume that you have done so because you have utilized the document in your assignment of certain diagnostic labels and because you recognize the authority of this document. Is that, essentially, correct?"

Witness: "That is essentially correct."

Attorney: "Good."

(In this context, "Good" roughly translates as "Now I think I've got you.")


Attorney: "Doctor, I call your attention to page 11 and ask that you read aloud for the court the first line, in bold print."

Witness: "It reads: Severity of psychosocial stressors scale, (pause) colon, (pause) adults."

Attorney: "Good. I now ask that you locate the number 4 in bold print, and that you read aloud to the court the word, in bold print, next to the 4 and the word just to the right of the word in bold print. Do you understand my request, Doctor?"

Witness: 'Yes, I believe I do."

Attorney: "Go ahead then."

Witness: "To the right of the 4 it says 'severe' and to the right of that the word 'divorce' appears."

Attorney: "Excellent, Doctor."


(In this context, "Excellent" means "Now I'm absolutely certain I've got you.")

Attorney: "You have acknowledged the authority of the Diagnostic and Statistical Manual of Mental Disorders, and you have read information from that document concerning the severity of psychosocial stressors affecting adults. On the basis of the information you have just read from this document whose authority you recognize, would you not conclude, Doctor, that the Grant's divorce constitutes a severe psychosocial stressor for Mr. Grant?"

Witness: "Absolutely not."


(The attorney again obtained the witness' acknowledgement that the DSM-III-R was an authoritative document and again had the witness open the DSM-III-R to page 11 and read the portions which had been read before.)


Attorney: "Does it not say right there on the page in front of you that divorce is a severe psychosocial stressor?"

Witness: "No, it does not."

(The attorney had the witness read aloud a third time.)

Attorney: "Is this document not telling us that divorce is a severe psychosocial stressor?"

Witness: "No, it is not. Will you permit me to read the words which appear under the words 'Severity of psychosocial stressors'?"

Attorney: "No, Doctor, that will not be necessary."

(At this point, the judge expressed interest in the words to which the witness was alluding and invited the witness to read what she wished to read.)

Witness: "Under the title: 'Severity of psychosocial stressors scale' it says 'See page 18 for instructions on how to use this scale.' If one reads the instructions, it is made quite clear that the scale is only a guide and that the severity of a specific stressor for a specific person is influenced by many factors, three of which are the amount of life change which is involved, the degree to which the change is desired by the person, and whether the change is or is not under the person's control. Mr. Grant sought this divorce, has exercised control over most of the events associated with the divorce process, and the life changes he will experience will, for the most part, be those he desired. Therefore, for him, the divorce does not, in my judgment, constitute a severe psychosocial stressor."

Transgressions of various types by the parents are bound to become an issue during cross examination. Opposing council will frequently suggest (sometimes accurately) that you were unaware of certain transgressions by the favored parent. An example follows.

(In both her report and her testimony, an impartial examiner has alluded to the honesty of the favored parent.)

Attorney: "Doctor, if I were to tell you that in testimony given in this courtroom just yesterday, Mr. Donaldson acknowledged that on July 25, 1990, he lied to his wife concerning the reason that he would be returning their son after the agreed-upon time for his return from visitation, would that alter your assessment of Mr. Donaldson with regard to one of your stated criteria and one which you have indicated is of importance?"

Witness: "I am unable to answer the question as posed. In order to answer I would need much more information concerning the lie which was told, Mr. Donaldson's reasons for having told it, and the consequences for Mrs. Donaldson or their son of his having told it.'

(Even if the cross-examining attorney had, at this point, withdrawn his question, the witness would still have made the important point that not all lies are of equal importance in evaluating one's honesty.)

Attorney: "Is it not true, by definition, that one who tells a lie is a liar?"

Witness: "No. We may attach the label 'hero' to someone on the basis of a single heroic act but we do not describe someone as a liar on the basis of a specific false statement. May I explain further?"


Attorney: "That will not be necessary."

(By expressing her interest in providing a fuller explanation, the expert has indirectly let the friendly attorney know that she wishes, during re-direct examination, to be asked questions that will afford her the opportunity to explain her views on deception. On redirect examination, the friendly attorney described a hypothetical situation in which a father, upon changing a child in preparation for her return to her mother, notices suspicious bruises, contacts a physician who agrees to see the child, and informs the mother that he has experienced car problems rather than informing her that he suspects her of child abuse and is taking their child to a physician. The re-direct examination then progresses.)

Attorney: "Would you describe the father's statement to the mother as a lie?"

Witness: "Yes, I would."

Attorney: "Would you, if you were to describe the father to someone, describe him as a liar?"

Witness: "No, I would not."

Attorney: "Can you explain to the court, Doctor, why you would not?"

(The witness was then able to discuss the issue of deception at length. She referred to "He's in a meeting now" lies, compliments, and so on. She concluded that the lie told by the father served a constructive purpose and was more indicative of sound judgment than of a propensity for dishonesty.)

The honesty/dishonesty issue is frequently raised in a different context. In acrimonious disputes, false allegations are sometimes made. When the allegations are proven false, the attorney representing the accuser may attempt to suggest that the accusations were misunderstood. In a case in which we were involved, a couple commenced divorce proceedings while the wife was pregnant with a second child, and a custody battle over the first child and the as-yet-unborn child was begun. The mother alleged that the father had placed her "prenatal care in jeopardy by being totally irresponsible concerning the obstetrician's fees." The examiner determined that the father had paid all but that portion of the physician's bill that the physician informed him would be paid by insurance (following the birth of the child) and authorized the insurance company to make its payment directly to the physician. The obstetrician described the father as having been quite responsible with regard to his financial obligations, yet the mother's attorney produced an account statement (generated prior to the child's birth) which revealed a $2,000 balance, and attempted to suggest that the mother's allegation had been misunderstood.

RE-DIRECT EXAMINATION

Offering testimony is somewhat akin to acting in a play with many scenes. In this, the third scene, the friendly attorney tries to provide you with opportunities to extract yourself from boxes that the opposing attorney had been trying to build around you in the cross-examination. As you enjoy the sense of relief that comes from being let out of the boxes, be mindful of the fact that the opposing attorney will be back (in the final scene) and will have one last opportunity during re-cross-examination to build stronger boxes. Also, remember that the re-direct can provide you with the opportunity to elaborate on certain points only if you have provided clear signals to the friendly attorney concerning those areas that you wish to have reopened by his or her questions.

RE-CROSS-EXAMINATION

This is it! Despite all the tales of the horrors of cross-examination, it is the re-cross that is most likely to induce stress. The boxes constructed during cross-examination could be opened during re-direct. This time the opposing council comes at you with hammer and nails, and, if you get boxed in, there will be no opportunity for the friendly attorney to pry you out. It is, therefore, essential that you do whatever you can to avoid the box. We can offer only one pearl of wisdom: If the questioning attorney asks questions that seem to "force" answers that will distort your professional opinion, be assertive and indicate to the judge that you cannot answer the question as posed. If necessary, reword the question yourself by stating: "If what you are asking is ... (and reword the question in a way that enables, you to answer more accurately)."

CONCLUDING COMMENTS

We emphasize the importance of preserving one's objectivity by functioning as an evaluator only

in cases in which one is retained by both parents. Establish procedures and do not deviate from

them; be meticulous in your record keeping; prepare with diligence for trial and be supremely organized; and remain dispassionate and professional throughout direct- and cross-examination.


David A. Martindale, PhD
, currently maintains a private practice in which the bulk of his therapeutic work deals with family issues. As a partner in Child Custody Consultants, he regularly performs impartial evaluations of comparative custodial fitness. Dr. Martindale is also a Professor of Psychology at Nassau Community College and an Adjunct Clinical Professor of Psychiatry and Behavioral Science at the State University of New York at Stony Brook, and serves on the Board of Directors of the Institute for the Study of Family Violence. Dr. Martindale may be contacted at 46 Old Homestead Road, Port Jefferson, NY 11777-1155.


Judith L. Martindale, PhD
, currently serves as an Associate Professor of Psychology at the Southampton Campus of Long Island University and maintains a private practice dealing primarily with children and their families. She has acted as a consultant to the Suffolk County Department of Mental Health in the area of family violence and serves on the Board of Directors of the Institute for the Study of Family Violence. She is a partner in Child Custody Consultants and performs impartial evaluations of comparative custodial fitness. Dr. Martindale can be contacted at 46 Old Homestead Road, Port Jefferson, NY 11777-1155.


Joan E. Broderick, PhD
, currently maintains a private practice and is a partner in Child Custody Consultants. She is also a Clinical Assistant Professor of Psychiatry and Behavioral Science at the State University of New York at Stony Brook, where she previously served as Director of the Marital Therapy Clinic. She specializes in marital and family issues in her practice, including consultations for the courts. Dr. Broderick may be contacted at 3771 Nesconsen Highway, Suite 101B, South Setauket, NY 11720.

RESOURCES


American psychiatric Association. (1987). Diagnostic and Statistical Manual of Mental Disorders (3rd ed. rev.). Washington, DC: Author.

Faust, D., & Ziskin, J. (1988). The expert witness in psychology and psychiatry. Science, 241, 31-35.

Gordon, R., & Preek, L. A. (1989). The Custody Quotient: Research Manual, 1989 Revision. Dallas: The Wilmington Institute.

Grisso, T. (1990). Evolving Guidelines for divorce/custody evaluations. Family and Conciliation Courts Review. 28, 35-41.

Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1987). Psychological Evaluations for the Courts. New York: Guilford.

Meyer, R. G., Landis, E. R., & Hays, J. R. (1988). Law for the Psychotherapist. New York: Norton.

Ziskin, J., & Faust, D. (1988). Coping with Psychiatric and Psychological Testimony. Venice, CA:

Law and Psychology Press.


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