Cross Examining The Psychological Expert

CROSS EXAMINING THE PSYCHOLOGICAL EXPERT
Alyson F. Lembeck, Esq.

Family Law Attorney, Guardian ad Litem, Mediator
Ellis Funk, P.C.
Cross examining a psychological expert can be a daunting task. Judges typically give
great deference to psychological experts. In order to successfully challenge an expert witness, it
is best not to attack the expert witness, but rather to question the underlying facts the witness
relied upon to reach his or her conclusion. The following are examples of cross examination
techniques that can change the paradigm to allow the Judge to disagree with the expert and rule
in favor of your case.
OVERALL APPROACH
Always treat the expert witness with respect. It is not a good idea to attack the expert
witness directly. Rather than attacking the conclusions, focus on the underlying assumptions and
facts supporting the experts conclusion. If you can prove there is another logical opinion that
can be made based on the evidence considered by the expert, you will have a better opportunity
to convince the Judge of your position.
Make sure all of the questions you ask are designed to support your theory of the case.
Do not allow the expert witness to utilize your time to restate his or her direct examination. Ask
leading questions and control the witness so that you receive short and concise answers to the
questions you want answered.
HEARSAY
The psychological experts conclusions generally rely heavily on hearsay information.
For example, most experts use information they learned from both parties, schools, materials
submitted by the parties, and from other third party collateral witnesses. It is important to
question the expert witness what, if any, information was independently verified. You can
provide the Judge reasons why the information the expert relied upon was not credible. The
expert may not be able to determine whether one or both parties told the expert true information.
If you can show the Judge that information provided to the expert was false, this may cause the
Judge to question the experts conclusions.
APPEARANCE OF IMPROPRIETY/BIAS
Many expert witnesses are hired by one party. In these instances, you can call into
question whether the expert is acting as an advocate for one side. It is helpful to point out to the
Judge who hired the expert, the cost of the expert, and whether the expert has been hired multiple
times by the same lawyer. It is also important to research the other cases the expert has been
involved in to see if there is a trend in his or her testimony (ie. Always finds the father should
have joint custody) or whether there is inconsistency in positions taken in the past by the expert.
Finally, it is persuasive to question the expert about what he or she did to prepare for the
testimony. Asking how long he or she spent with the opposing counsel prior to testifying is a
good way to show the Judge that the experts opinion may be persuaded by his or her alignment
to one side.
If the expert was hired as a neutral, it is important to consider how many times the expert
met with each party, whether the expert interviewed all of both parties witnesses, whether the
expert met with the children with each party, and point out to the Judge if the report shows bias
such as accepting one partys information as truthful without any verification while doubting the
other partys information.
MISSING INFORMATION
In most cases, the expert involved may not have all of the information and evidence in a
case. If you can prove evidence in a case that if considered by the expert would change his or
her opinion, you may be able to get the expert to acknowledge that if they had that information
they would have drawn a different conclusion. This can be very persuasive to the Judge.
DO NOT ATTACK CREDENTIALS
It is a mistake to attack the experts credentials. Most experts are more than qualified to
provide his or her expert opinion. Further, it is likely the expert has already testified and has
been qualified in the Judges court before. Cross examining the experts credentials provides the
expert time to reinforce his or her experience. Instead, you should consider stipulating to the
credentials of the expert so that it is not emphasized to the Judge.
PSYCHOLOGICAL TESTING
The Minnesota Multiphasic Personality Inventory (MMPI-2) and the Rorschach Inkblot
Test are the two instruments most frequently used for the evaluation of adults in child custody
cases. Coping with Psychiatric and Psychological Testimony, David Faust based on the original
work by Jay Ziskin, Oxford University Press, 2012. There are issues in using these tests. Most
importantly these tests do not test parenting ability. There is almost always insufficient scientific
foundation to make a direct connection between the results on the tests and parenting. The
information gained from the tests are indicative of what characteristics others have that have
tested similarly, but it does necessarily mean the party has those characteristics. Further, most
people being tested as part of a custody evaluation present themselves in a more favorable light
and test with a level of defensiveness. Those going through a divorce tend to be more anxious,
depressed, and paranoid. This could affect the validity of the test. It is not a good idea to attack
the testing because the expert knows much more about the testing and will be able to explain the
testing measures. However, there are inherent flaws and limitations in the testing that should be
brought to the Courts attention.
DISCOVERY
It is a good idea to get the experts entire file including all information and testing the
expert relied upon. The documents in the file typically contain information that was submitted
by each party which may be helpful to your case. Also, the notes of the expert may reveal
additional information to support your case. Finally, having the raw test data will allow you to
seek the guidance of another experts opinion about the test results.
HIRE YOUR OWN EXPERT
The most helpful tool to cross examining an expert is to hire your own expert to help you
identify the flaws and weaknesses of the other experts opinion. Your expert can help you
prepare your cross examination questions or even attend trial as an expert to call into question
the other experts report and to explain why a different conclusion should be drawn using the
same information. Having another expert to rely upon can be invaluable in effectively cross
examining an expert.

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CROSS EXAMINING THE PSYCHOLOGICAL EXPERT

Alyson F. Lembeck, Esq.

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