Confronting Mental Health Evidence: A Practical PLAN to Examine Reliability and Experts in Family Law

by Lasse Bak Sørensen

Overview

Confronting Mental Health Evidence—Second Edition describes and applies the four-step PLANModel to help lawyers organize, critique, and use psychological materials and testimony when examining experts and framing legal arguments.
This Second Edition refreshes previous topics, including understanding testing and managing allegations of domestic violence and abuse, and adds three substantive new chapters:
• How to identify and challenge judgment biases that underlie expert opinions • How to adopt a lawyer’s approach to DSM-5 based testimony • How to navigate confidentiality, HIPAA demands, and privilege when obtaining and using mental health records.
This Second Edition also serves as the ideal companion for How to Examine Mental Health Experts: A Family Lawyer’s Handbook of Issues and Strategies. The latter book, organized by 28 short issue-based chapters, uses the PLANModel to help lawyers spot and analyze mental health and evaluation-related issues likely to arise in cases, and offers questions to exam

Product Details

ISBN-13:	9781634252126
Publisher:	American Bar Association
Publication date:	09/02/2015
Sold by:	Barnes & Noble
Format:	eBook
Pages:	297
File size:	821 KB

About the Author

John A. Zervopoulos, PhD, JD, ABPP, of Dallas, TX is a psychologist and lawyer, directs PsychologyLaw Partners, a forensic consulting service that applies the practical caselaw-based PLAN Model to help lawyers critique mental health experts' work and testimony and effectively address the resulting evidentiary reliability issues in court.

In addition, Dr. Zervopoulos writes extensively and presents seminars to lawyers and mental health professionals. His second book, How to Examine Mental Health Experts: A Family Lawyer's Handbook of Issues and Strategies, was published in 2013 by the American Bar Association. He also publishes PsychologyLaw Brief, a semimonthly email that offers practice tips to guide case preparation, assess the reliability of experts' methods and reasoning, sharpen deposition and court examinations, and frame legal arguments.

Table of Contents

Preface xiii
Acknowledgments to the First Edition xv
Acknowledgments to the Second Edition xvii
About the Author xix
Chapter 1: GettingStarted 1
The Challenge 1
Meet the Challenge: Understand Three Key Perspectives 5
Meet the Challenge: Apply the PLAN Model 7
The Roadmap 7

Part One: Develop Your PLAN—ThreeCritical
Perspectives 11

Chapter 2: The Emotional Perspective: Emotional Dynamics of
Problem Divorces 13
The Emotional Effectsof Divorce and Resiliency 14
Three Keys to Understanding Problem Divorces 16
The First Key—“His”and “Her” Marriages 17
The Second Key—The Marital Separation Events 19
The Third Key—Recognizing Sources of Impasses to
Resolving the Divorce 20
Summary 22

viii

Contents

Chapter 3: The Legal Perspective: Building the PLAN Model 23
Introduction 23
The Frye Test 24
Introduction and Concerns 24
The Different Faces ofFrye 25
The Daubert Test 29
Introduction 29
Applying Daubert in Bench Trials 32
Comparing Frye and Daubert 33
The PLAN Model: Applying Shared Principles 34
Step One: Determine the Expert's Qualifications to Testify 35
Step Two: Determine Whether the Expert's MethodsConform to
Relevant Professional Standards—Methods Reliability 39
Step Three: Evaluate the Empirical and LogicalConnections
Between the Data Arising from the Expert's Methodsand the
Expert's Conclusions—Reasoning Reliability 45
Step Four: Gauge theConnections Between the Expert's
Conclusionsand the Expert's Opinions 46
Summary 48

Chapter 4: The Psychological Perspective: Filling Out the PLAN Model 49
Introduction 49
Step One: Determine the Expert's Qualifications to Testify 50
ProfessionalIdentities and Qualifications 50
Sorting Through the Qualifications Maze 56
Choosing Mental Health Experts: Distinguishing Qualities 58
Using Mental Health Experts: TheMatter of Professional Roles 62
Step Two: Determine Whether the Expert's MethodsConform to
Relevant Professional Standards—Methods Reliability 71
Guidelines and Protocols Informing Methodology 72
Forensic Interviews 74
Collateral or Third-Party Information 77
Psychological Testing 79
Seven Keys to Understanding Tests 83
Step Three: Evaluate the Empirical and LogicalConnections Between the Data Arisingfrom the Expert's Methodsand the Expert'sConclusions—Reasoning Reliability 99
Judgment Biases 100
MHP Use of Research and Professional Literature 100

Contents ix
Problems Inherent in DSM-5 and Syndrome-Based Testimony 102
OrganizingData and Conclusions: A Functional
Assessment Model 104
Step Four: Gauge theConnections Between the Expert's Conclusions
and the Expert's Opinions 116
Summary 119

Part Two: Exposing the Analytical Gaps—Applying Scientific- Critical Thinking 121

Chapter 5: Scientific-Critical Thinking: The Mindset for Exposing
AnalyticalGaps 123
Introduction 123
The Scientific-Critical ThinkingMindset 125
Critical Thinking Elements 126
Benefits of the Scientific-Critical ThinkingMindset 128

Chapter 6: ExposingAnalytical Gaps 129
Exposing Overly Abstract Psychological Concepts 129
Exposing “Common Sense”Notions Used to Support
Expert Opinions 131
Exposing Ipse Dixit Assertions 134
Exposing Attempts to Invoke the General Acceptance Factor Absent
Support 136

Chapter 7: ExposingJudgment Biases: Keep It REAL 141
Introduction 141
Types of Biases 143
Overt Biases 143
Covert Judgment Biases 144
The Decision-Making Process 144
Common Judgment Biases 145
Overconfidence Bias 146
ConfirmatoryBias 146
Hindsight Bias 147
Anchoring and Adjustment 147
Availability Bias 148
Fundamental Attribution Error 149
Discounting Base Rates 149

x Contents

Can You Expose Experts'Biases? 150
Conduct the REAL CHECK to Expose Experts'Biases 151
The Foundation 151
Generatingand Testing Reasonable Alternative Explanations 152
Conducting the REAL CHECK to Expose Experts'Biases 155
Summary 158

Chapter 8: ExposingMisapplied or Misrepresented Research: The Example of
Domestic Violence 159
Introduction 159
ConceptualChallenges in DomesticViolence Cases 160
Definitions and LegalImplications 161
Looking at the Literatures 162
The Different Faces ofDomestic Violence 163
The Issue of Female-Initiated Violence 169
Looking Inside the Literature 170
Exposing the Gaps inDomestic Violence Testimony 172
Is the ExpertFamiliar with the Domestic Violence Literature? 172
Does the ExpertAcknowledge That the DomesticViolence
Literature Reflects Different Types ofDomestic Violence That
May Have Different Causes? 173
What Methods Does theExpert Use to Generate Data That Inform
the Evaluation Conclusions and Expert Opinions? 173

Chapter 9: ExposingConfirmatory Bias:The Example of Sexual Abuse
Allegations 177
Introduction 177
Behaviors and Symptoms: Problemsin Sexual Abuse Validation 179
Definitions 179
What About Sexualized Behaviors? 180
Key Principles When Considering Sexual Abuse Allegations 183
Allegations—True or False? 183
Children's Disclosure Statements 184
Suggestibility and Its Concerns 188
The Legal Effectsof Suggestibility Research 196
Forensic Interviews 197
Concerns with Problem ForensicInterviews 198
The Forensic Interview Structure—Basic Principles 208
The Forensic Interview in Context 211

Contents xi

Chapter 10: Exposing Misuse of DSM-5:A Lawyer'sApproach 213
Introduction 213
Topic One: Purposes andDevelopment of DSM-5 214
Purposes of DMS-5 215
Developmentof DSM-5 216
Topic Two: The Elements of a DSM-5Diagnosis 223
The DSM-5 Diagnostic Two-Step 224
Selected DSM-5 Diagnostic Issues 226
Summary of Topics One and Two: The Psychological Perspective 229
Topic Three: DSM-5, the Rules of Evidence, and Caselaw—The Legal
Perspective 230
The Legal Backdrop 230
Integrating the Psychological andLegal Perspectives 232
Arguments for Admissibility or Use of DSM-5 Based Testimony 234
Arguments Against Admissibility or Use of DSM-5 Diagnosis-Based
Testimony 235
Summary: Understanding DSM-5—A Lawyer's Aproach 238

Part Three: ObtainingMental Health Records 241

Chapter 11: Negotiating the Mental Health Records Maze: Confidentiality, HIPAA,
and Privileges 243
Introduction 243
1. The MentalHealth Record 244
2. Confidentiality 247
3. HIPAA and the Disclosure of Records 250
Three Key HIPAA Points 250
Key HIPAA Terms and Concepts 252
HIPAA Rulesfor Disclosing Protected Health Information 257
What About Alcoholand Substance Abuse Program Records? 263
4. Obtaining Psychological Test Data 266
5. Psychotherapist-Patient Privilege 270
The Privilege Rationale 270
The Privilege Landscape 271
Managing Special Issues 275
Strategies for Negotiating the Mental Health Records Maze 276

xii

Contents

Appendix A: Deconstructing an APA Journal Article 279

Abstract 279

Introduction 280

Methods 280

Study Participants or Subjects 280

Materials or Apparatus 281