Reliability is the Key!

Very often experts are used in complex divorce and custody cases.  These experts come into court purporting to “educate” the court about the case and the process.  However, can these experts really help the situation?  If you are involved in any sort of complex divorce or custody case and you have experts involved you better make sure you understand the keys to reliable testimony from these experts.  Below is an excerpt from a well known psychologist who speaks to these issues.  You will find the information helpful, interesting and informative.

Reasoning and methodology are keys to reliable, trustworthy expert testimony: Experts reason from data developed from reliable methods to derive their opinions. In the past few PsychologyLaw Briefs, we’ve offered two questions to test whether experts attended to reasoning problems that can infect their testimony: Did the expert actively consider reasonable alternative explanations of her data? Does the expert know the judgment biases that could infect her reasoning? The first question addresses whether experts kept their mind open to the data while forming their opinions—important because biases often function outside our awareness. Our last Brief, addressing the second question, showed how confirmation bias and overconfidence bias steer data to predetermined conclusions and opinions. Let’s look at two more biases: the availability bias, and the anchoring and adjustment bias.

Availability bias occurs when the expert is overly influenced by knowledge that comes to mind easily—information that is vivid, recently disclosed by a lawyer or in pleadings, and/or is similar to previous cases or events in which the expert has participated. For example, an expert, steeped in “diagnosing” abuse but unfamiliar with the professional literature on abuse, may uncritically view alarming allegations as similar to her previous cases—somehow, the cases, with apparent similar facts, seem alike. Or an expert having evaluated only a few abuse cases may judge the current case by comparing it to those previous cases. Not inclined towards the hard work of considering alternative explanations of the data, these experts fall prey to simple answers—overly influenced by easily recalled, familiar cognitively “available” information.

Anchoring and adjustment, a related bias, occurs when the expert latches onto a particular explanation of the data, and that explanation then becomes the “anchor” from which subsequent data will be interpreted—like a salesman beginning with a high offer to “anchor” the bargaining. Subsequent give-and-take may adjust the anchor, but not by much. For example, one study showed a bias among clinicians to minimize or dismiss data of a patient that indicated emotional problems when that patient was seen initially as less disturbed. In your case, did the expert use key information about the litigants received early from the lawyers or pleadings to anchor her judgments of the litigants? To counter this tendency, experts must actively consider reasonable alternative explanations of data that they consider while developing their opinions.

Availability bias? Anchoring and adjustment bias? As with other biases, challenge experts—on direct or cross—to define the biases and then to explain how they kept the biases from infecting their opinions.

References: John A. Zervopoulos, Confronting Mental Health Evidence 74–77 (2008).

Brief Quote: “This [Daubert] gatekeeper function requires the judge to assess the reasoning and methodology underlying the expert’s opinion. . . .” Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000).

John A. Zervopoulos, Ph.D., J.D., ABPP is a board certified forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service. Dr. Zervopoulos—combining the psychological and legal perspectives—assists lawyers to organize, critique, and use psychology-related materials and evidence in their cases. He also authored Confronting Mental Health Evidence: A Practical Guide to Reliability and Experts in Family Law, published in 2008 by the ABA. Dr. Zervopoulos is online at www.psychologylawpartners.com and can be contacted at jzerv@psychologylawpartners.com or at 972-458-8007.

If you have questions about experts in your case then contact us at 505-880-8737.