Beware of Bias in your Custody Case!
Below is an excerpt from a well known psychologist that we have used in some very challenging custody situations. I think the information is important to pass along as it impacts on custody related issues. If you are involved in a custody dispute this information is a must read. Knowledge is power in your custody case!
Our last two PsychologyLaw Briefs focused on how mental health experts use inductive reasoning, a “bottom-up” problem-solving approach, to develop their opinions: experts reason from their data to derive their conclusions and opinions. But also noted was that experts, like us all, are vulnerable to reasoning flaws—biased thinking that can infect and compromise judgments. To test the quality of experts’ thinking, two caselaw- and research-based lines of questions were proposed: Did the expert actively consider reasonable alternative explanations of her data? Does the expert know the judgment biases that may infect her opinions? Our last Brief asserted that to manage judgment biases effectively, experts must actively consider reasonable alternative explanations of the data until the best explanation (the opinion) survives.
But to adopt this approach, experts should know the judgment biases that may infect the reasoning that supports their testimony—competent experts do; incompetent ones don’t. Lawyers enhance their direct- and cross-exams when they ask experts how they managed those biases. In the next few Briefs, we will look at several judgment biases that can arise when experts neglect to actively consider reasonable alternative explanations of their data. Let’s start with two: confirmatory bias and overconfidence bias.
Confirmatory bias is the tendency to seek or recall information that proves one’s view while discounting or ignoring information inconsistent with that view. Confirmatory bias often takes hold with two kinds of experts. The first expert, unfamiliar with the professional literature in the area of her testimony, doesn’t know what reasonable alternative explanations of the data are available to consider. Thus, she bases her opinions primarily on personal experience and intuition. The second expert, testifying to promote an “agenda,” chooses not to actively consider alternative explanations. Instead of the “bottom-up” reasoning-from-the-data approach, these expert types adopt a “top-down” approach, yielding to confirmatory bias by using premature conclusions to cherry-pick and explain the data.
Overconfidence bias is fed by confirmatory bias as well as by other judgment biases. Confidence is not an indicator of an opinion’s reliability; experts still must show the bases for their testimony. Research shows that people’s subjective confidence in their judgments tends to be greater than is objectively justified in tasks of moderate-to-high levels of difficulty—characteristic of the expert role. As with other judgment biases, overconfidence occurs when people quickly focus on intuition or a preferred explanation of their data rather than considering alternative explanations of the data.
Confirmatory bias? Overconfidence? Challenge experts—on direct or cross—to define these biases and to explain how they kept these biases from infecting their opinions.
References: Derek J. Koehler, Hypothesis Generation and Confidence in Judgment, 20 J. Experimental Psychol.: Learning, Memory & Cognition 461 (1994); John A. Zervopoulos, Confronting Mental Health Evidence 74–77 (2008).
Brief Quote: “A flaw in the expert’s reasoning from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious. Under that circumstance, the expert’s scientific testimony is unreliable and, legally, no evidence.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).
If you have questions regarding your custody case please contact us immediately at 505-880-8737.
Things to Remember during a Divorce
Here is a list of 10 things you should never do during a divorce. These things are based on my experience and through litigation results:
1. Never forget your children’s feelings and that they need you.
2. Never use the court system as a way of exacting revenge on the other side;
3. Never make big decisions based on emotional needs
4. Never refuse to communicate—with your attorney, your ex, your children.
5. Never think that you are 100% correct—when you do you get sorely dissapointed with the court and outcomes. Understand that you have to remove obstacles.
If you follow these pointers you will be better able to have a positive outcome in your case. If you or someone you know is going through a divorce have them call us so we can walk them through the expectations of a divorce along wtih pointing them in the direction they should go. We are here to help. 505-880-8737.
What does “No Fault” Divorce mean?
What is a no fault divorce? New Mexico is a no fault divorce. There does exist in New Mexico a statute that outlines the different grounds in which one can obtain a divorce. The list in the statute doesn’t necessarily sound like “no fault.” However, despite the grounds in which one can file under (abandonment, cruelty, etc.), New Mexico does not look to “fault” when dividing assets.
This means that you could be married to the meanest person around who has done horrible things and still they are going to be entitled to 50% split of community assets and debts. This is what is meant when one talks about no fault divorce. In addition, there is the catch all phrase of irreconciable differences that is generally used when seeking a divorce. However, our firm has used other grounds to obtain a divorce for an individual.
So, if you go and visit an attorney and think that telling him/her all of the bad things about the other person will somehow benefit you think again. Now be clear, some of those “bad” things may impact on custody issues but those “bad” things have no impact on the community property division or whether a divorce will or will not be granted. This is the general understanding of a “no fault” divorce.
If you have any questions regaridng your divorce case please contact us at 505-880-8737.
FOCUS ON THE EXPERT’S REASONING
Below is an excerpt from a well known expert witness in custody disputes. The information provided herein helps you understand how to bolster or attack an expert in a custody case. These methods are employed by our firm in achieving great results for our clients.
Inductive reasoning, the “bottom-up” problem-solving approach discussed in our last Brief, characterizes the process by which psychologists conduct forensic evaluations: directed by specific referral questions, they gather data through their methods, reason from the data, and arrive at their conclusions and opinions.
This approach offers opportunities for convincing direct-exams and sharp cross-exams of the evaluator-expert. The key? Focus on the expert’s reasoning—the step that links the expert’s data to her conclusions and opinions. Although experts purport to bring the “knowledge and experience of their discipline” to the stand, they are vulnerable to the same reasoning pitfalls that affect us all: biased thinking that finalizes judgments too quickly. Competent expert testimony acknowledges and manages potential reasoning problems. Incompetent testimony glosses over, if not denies, those problems.
Expose the expert’s reasoning that supports her testimony by focusing on two caselaw and research-based lines of questions: Did the expert actively consider reasonable alternative explanations of her data? Is the expert aware of cognitive biases that may compromise her opinions?
The most effective strategy for experts to manage reasoning problems that could infect their opinions is to actively consider reasonable alternative explanations of their data until the best explanation survives—an effortful, critical thinking approach to which experts must commit themselves. Merely acknowledging that alternative explanations exist without purposefully marching the data through those explanations is insufficient. Psychologist Daniel Kahneman characterizes the effort that distinguishes the active from the passive approach: “Sustaining doubt is harder work than sliding into certainty.”
Law and psychology confirm the active strategy’s importance. Caselaw notes that considering alternative explanations is one indication of an opinion’s reliability. Cognitive research shows that an active strategy “breaks the inertia” that sets in if the expert is pulled by a particular view of the case.
Use this key principle, supported by the Brief Quotes below, when you examine experts by deposition or in court. For example, when an expert testifies that her data supports that a child has been abused or that a plaintiff has not sustained emotional trauma, ask the expert to list all other reasonable explanations she considered of the data and how she actively addressed each explanation before she settled on her opinions. Her answers will reveal the quality and extent of the reasoning that supports her opinions.
Our next few Briefs will address the second line of questions to expose the expert’s reasoning: cognitive biases that may compromise experts’ opinions.
References: Daniel W. Shuman & John A. Zervopoulos, Empathy or Objectivity: The Forensic Examiner’s Dilemma? 28 Beh. Sc. & Law 585, 595 (2010) (presents a model for managing biases by actively considering reasonable alternative explanations); John A. Zervopoulos, Confronting Mental Health Evidence 77 (2008).
Brief Quotes
• “Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact. These factors include: . . . (3) Whether the expert has adequately accounted for obvious alternative explanations.” Fed. R. Evid. 702 advisory committee’s note.
• “Forensic practitioners seek to maintain integrity by examining the issue or problem at hand from all reasonable perspectives and seek information that will differentially test plausible rival hypotheses.” American Psychological Assn., Specialty Guidelines for Forensic Psychology, Guideline 9.01 (2011).
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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 any questions regarding complex custody cases please contact us at 505-880-8737.
How to Handle Expert Witnesses in Custody Cases
One of the biggest areas of our practice involves complex custody matters. Inevitably in such cases experts get involved. We have extensive experience in the legal requirements for experts in custody matters. Below is an exerpt from a well known psychologist who we often rely on when battling in custody cases.
Too often, experts, guidelines in hand, focus on their evaluation methods to justify their opinions—if they followed generally accepted procedures, their opinions must be reliable. But you can enhance your direct- and cross-exams by forcing experts to explain their testimony logically—like lawyers were trained to analyze problems. Step back and view the evaluation as an inductive reasoning process: the evaluator gathers data through her methods, reasons from that data, and arrives at her conclusions and opinions. Of course, experts should conduct their evaluations with accepted methods—caselaw emphasizes that reliable data on which testimony should be based can only derive from reliable methodology. But quality, if not admissible, testimony also depends on logical reasoning. From Joiner: “Conclusions and methodology are not entirely distinct from one another.” Further, the analytical [reasoning] gap between the data and opinion proffered must not be “too great.”
Inductive reasoning is a “bottom-up” method: considering relevant information from various sources to arrive at conclusions (really, probability statements based on the data considered) that answer specific questions. This is exactly how lawyers put together a case. Daubert caselaw describes this reasoning method and its results to characterize how science works, noting that trained experts commonly extrapolate from existing data, and that “arguably, there are no certainties in science.”
Competent expert testimony reflects this logic process. The expert, presented with specific referral questions to orient the evaluation, gathers and develops relevant data using reliable, accepted methods. In the process, the expert draws reasonable, professionally-based inferences from the data to develop conclusions that address the referral questions—the analytical, reasoning gap. Language from the APA’s child custody guidelines in the Brief Quote below nicely describes the inductive reasoning approach that psychologists should use to develop and support expert opinions.
In contrast, incompetent expert testimony reflects a compromised inductive reasoning process. A compromised process results in compromised opinions—and opens doors for several direct- or cross-exam lines of questions. For example, one or more factors may infect the process, including:
• Relying on insufficient relevant information or data.
• Reasoning not based in the established scientific and professional knowledge of psychology. see APA’s Ethical Principles of Psychologists and Code of Conduct, Std. 2.04.
• Lack of an active approach to monitor whether biases are influencing the evaluation’s inductive reasoning process.
• Explicit or unwitting effects of one or more biases that direct the information gathering and reasoning process.
In sum, whether conducting direct- or cross-examination, challenge experts to testify more explicitly about the inductive reasoning process they used to build their conclusions and opinions. I’ll focus the next several Briefs on factors that may infect the reasoning experts use to build their opinions.
Reference: John A. Zervopoulos, Confronting Mental Health Evidence 33–34 (2008).
Brief Quote: “When making recommendations, psychologists seek to avoid relying upon personal biases or unsupported beliefs. Recommendations are based upon articularted assumptions, interpretations, and inferences that are consistent with established professional and scientific standards.” APA Guidelines for Child Custody Evaluations in Family Law Proceedings, Guideline 13, Application.
If you have further questions regarding custody cases please contact us at 505-880-8737
What is the “Family Court?”
I often get questions about what exactly is the Family Court. How is the Family Court different from other judges and other courts.
So, for the sake of some brief education here goes a down and dirty explanation of the court system. For time sake, I will only focus on the state court system. However, understand that the state court system mirrors the Federal Court system.
The highest court in New Mexico is the Supreme Court. The Supreme Court hears cases that are appealed to it from the Court of Appeals, but the appeal is not automatic. What this means is that the Supreme Court gets to pick and choose which appeals it will hear. The Supreme Court also deals with some complex writs but that is not the purpose of this post.
The Court of Appeals in New Mexico hears appeals of cases that occur at the trial court level. Practically anyone can appeal a trial court decision and that appeal goes to the Court of Appeals.
The trial court level is the district court. Depending on the size of the county and jurisidiction, district courts may be sectionalized to handle certain types of cases. In Bernalillo County, for example, there are district court judges who hear criminal cases, civil cases, Family Law cases and juvenile cases. The judges who hear family law cases deal with divorces, custody, child support and all ancillary matters that impact on family issues. Family Court judges are “regular” judges and they try the cases. This means that the Family Court Judges hear cases, listen to the evidence, apply the law to the evidence (supposedly) and then render a decision based on the evidence in accordance with the law.
If a person doesn’t like the outcome of the trial then one may appeal to the court of appeals. As you can see the state court system is complex and can be confusing when it comes to jurisdictional issues. That is why it is important to understand “Family Court” and what you are dealing with in terms of your case before you get to trial. Our firm has appeared before most of the courts throughout the State of New Mexico and can help you better understand the intracacies of the Family Court system. Should you have questions please email me at davids@standridgelawfirm.com or call me at 505-880-8737.
What is Gross Income?
Child support calculations can be rather difficult and confusing. That is why it is important to understand the nuances that impact on child support. One such nuance deals with how to calculate income. Child support in New Mexico is calculated according to gross income. This means income before taxes. Sounds simple? Well it can be much more difficult. For example, how do you calculate the gross income of a person who is self employed? What about a commissioned sales person? What about a person who gets bonuses? These complexities make the calculation of child support somewhat challenging.
Therefore, when asked “what is your gross income” it is important to know that there are many different factors to calculating the gross income. Reasonable business expenses are deducted from gross income, according to NMSA 40-4-11.1. Additionally, means based support is deducted from income as is child support payments one pays per a court order for an older child. These exceptions, along with others must be considered when calculating child support. Such nuances can make several hundred dollars per month difference one way or the other in terms of calculating support.
Finally, calculating gross income can occur in different ways. One way would be to take an hourly wage earner and just calculate the hourly wage over the 40 hour work week. Another option is to look at W-2 income from prior year’s tax returns. Still another method of calculating income would be to look to a year to date figure. Depending on what you are wanting to accomplish in your child support figures, your method of calculating support may be different. Every judge is different in their approach but this is part of the nuances that you should be aware of when you are determining a child support obligation.
If you have further questions about how to calculate your gross income please feel free to contact me at davids@standridgelawfirm.com or call our office at 505-880-8737.
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