Six Tips for Making the Best Use of an Emotional Damages Expert
by Tyler Durns, MD
fpamed Forensic Psychiatrist
First, one must understand what emotional damages claims entail. Such declarations might be founded in a variety of outcomes and antecedents. Emotional damage claims may result from duress relating to routine employment, workplace discrimination and harassment, emotional harm from defamation and libel, intentional or negligent infliction of emotional distress and personal injury, the psychological impact of malpractice, among other causes. Unlike psychiatric disability litigation, determination of emotional damages requires an exacting connection between the defendant’s conduct and the alleged damages of the plaintiff. Essentially, in emotional damages litigation, an expert must determine: 1) if there was a causal connection (i.e., cause in fact); 2) if and to what extent the defendant’s conduct was a substantial factor; and 3) whether there was a proximate or intervening cause that influenced or disrupted the chain of causation.
Thorough evaluation calls for expertise beyond the scope of general mental health practitioners. While general psychiatrists and psychologists might testify about an individual’s condition, prognosis, and proposed treatment, they do not have the requisite training to apply such determinations to the law. Treating psychiatrists and psychologists are typically confined to subjective reports from few and/or brief patient visits. They are rarely afforded the opportunity for extensive review of medical, employment, legal records, and collateral interviews, and are faced with implicit bias that might call their conclusions into question. Forensic experts are few select individuals who have undergone additional specialized training surrounding the interface of mental health and the law, in order to evaluate claimants independently and skillfully.
Too frequently, lay jurors may be assumed to be capable of assessing the reasonableness of emotional damages claims. However, they are often not equipped to do so without the aid of a forensic expert to assist in understanding the complexities of a given case. The use of a forensic psychiatrist or psychologist in emotional damages litigation is one of a medical expert, clinical investigator, and liaison between the medical community and the court. They are trained in in-depth analysis of medicolegal documentation, examination and psychological testing of claimants, formulating legal documentation and reports outlining their conclusions, and testimony, in order to opine on the psychological and emotional impact of an incident upon a claimant. Forensic psychiatrists and psychologists draw upon their unique expertise and familiarity with each specific case to provide an evidence-based narrative for the courts. Experts are also adept at assessment of misattribution and malingering of germane importance in such cases. The use of forensic experts is not limited to plaintiffs, but rather also sought by defendants.
Here are some tips for making the best use of an emotional damages expert in a legal case:
- Hire a qualified and experienced expert: The first step in maximizing the effectiveness of an emotional damages expert is to hire a qualified and experienced professional. Litigators should seek someone who has impeccable education in forensic psychiatry or psychology, and who has experience providing expert testimony in depositions and/or at trial.
- Understand the limitations of emotional damages: It is imperative to understand the limitations of emotional damages testimony and have a reasonable basis of what an emotional damages expert can and cannot provide. Often there are very limited, if any, objective indicia of emotional damages beyond the plaintiff’s own subjective narrative. Although the subjective narrative is important and may even be persuasive, it is rarely dispositive without more. Sole reliance on such may not withstand the pressure of cross-examination without additional objective evidence of injury. An expert reviewing extensive medical records and legal documents, utilizing objective psychological testing data, in addition to conducting a careful and detailed multi-hour interview may be able to substantiate emotional injury with evidence and authority. They may also be able to raise significant doubt about the veracity of the subjective report of alleged injuries, despite allegations to the contrary.
- Help “ambush proof” your expert’s testimony: Do not withhold information from your expert that you fear may undermine your case. If you know the contrary information, opposing counsel likely also possesses that information. Suppressing such information might unwittingly set up your expert to have his or her credibility damaged before the court and provide ample ground for ambush during cross-examination with adverse facts about which your expert was ignorant. Your expert may also have a different perspective about the so-called “bad facts” of the case, which he or she can dispel on the stand and could even help your case when such facts are presented in a different light.
- Use the expert’s testimony to confirm, or to question, the evidentiary basis for the plaintiff’s alleged functional impairment purportedly induced by the emotional injury: Emotional damages testimony can be a powerful tool in a legal case. This may or may not be the sole damage. If you are the plaintiff’s counsel, the expert may help you to expand your knowledge of how the emotional damages may resonate for years or even decades to come, likely affecting the plaintiff’s functioning long into the future, and furthering the veracity of their claims.
- If you are defense counsel, rely on your forensic expert to help elucidate the plaintiff’s considerable resilience: This might be evidenced by their previous experiences over the course of their life. Your expert may be able to use their medical and personal history in conjunction with psychological test data to demonstrate their significant emotional resilience and relatively minimal functional impairment. They may also be able to discuss how evidence-based and effective treatment exists for the claimant’s symptoms, that might limit their future suffering and functional impairment resulting from the incident underlying the litigation.
- Genuine evidence will always be the key: If, after reviewing the initial data, your expert concludes that, based upon the evidence, your theory of the case is likely to not withstand challenge by an opposing expert, listen carefully to their reasoning before dismissing them and searching for a new expert. They may be simply anticipating arguments based on the evidence that you are soon going to encounter from an opposing expert. Their seemingly non-supportive opinion, if considered carefully, may spare you from future difficulties with the case.
By following these tips, you can help ensure that an emotional damages expert is as effective as possible when retained to assist you with your case. Whether you are an attorney representing a plaintiff or defending a client against the allegations of a plaintiff, these tips can help you maximize the effectiveness of your retained emotional damages expert and achieve the best possible outcome for your client.