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

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

by John A. Zervopoulos, Ph.D., J.D.

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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 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.

Product Details

ISBN-13: 9781634252119
Publisher: American Bar Association
Publication date: 08/07/2016
Edition description: Second Edition
Pages: 297
Product dimensions: 7.00(w) x 9.90(h) x 0.70(d)

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: Getting
Started
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—Three
Critical
Perspectives
11

Chapter 2: The Emotional Perspective: Emotional Dynamics of
Problem Divorces
13
The Emotional Effects of 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 of
Frye
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 Methods
Conform to
Relevant Professional Standards—Methods Reliability 39
Step Three: Evaluate the Empirical and Logical
Connections
Between the Data Arising from the Expert’s Methods and the
Expert’s Conclusions—Reasoning Reliability 45
Step Four: Gauge the
Connections Between the Expert’s
Conclusions and 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
Professional
Identities and Qualifications 50
Sorting Through the Qualifications Maze 56
Choosing Mental Health Experts: Distinguishing Qualities 58
Using Mental Health Experts: The
Matter of Professional Roles 62
Step Two: Determine Whether the Expert’s Methods
Conform 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 Logical
Connections Between the Data Arising from the Expert’s Methods and the Expert’s
Conclusions—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
Organizing
Data and Conclusions: A Functional
Assessment Model
104
Step Four: Gauge the
Connections 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
Analytical
Gaps
123
Introduction
123
The Scientific-Critical Thinking
Mindset
125
Critical Thinking Elements
126
Benefits of the Scientific-Critical Thinking
Mindset
128

Chapter 6: Exposing
Analytical 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: Exposing
Judgment 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
Confirmatory
Bias
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
Generating and Testing Reasonable Alternative Explanations 152
Conducting the REAL CHECK to Expose Experts’
Biases 155
Summary
158

Chapter 8: Exposing
Misapplied or Misrepresented Research: The Example of
Domestic Violence
159
Introduction
159
Conceptual
Challenges in Domestic
Violence Cases 160
Definitions and Legal
Implications
161
Looking at the Literatures
162
The Different Faces of
Domestic Violence 163
The Issue of Female-Initiated Violence 169
Looking Inside the Literature
170
Exposing the Gaps in
Domestic Violence Testimony 172
Is the Expert
Familiar with the Domestic Violence Literature? 172
Does the Expert
Acknowledge That the Domestic
Violence
Literature Reflects Different Types of
Domestic Violence That
May Have Different Causes?
173
What Methods Does the
Expert Use to Generate Data That Inform the Evaluation Conclusions and Expert Opinions? 173

Chapter 9: Exposing
Confirmatory Bias:
The Example of Sexual Abuse
Allegations
177
Introduction
177
Behaviors and Symptoms: Problems in 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 Effects of Suggestibility Research 196
Forensic Interviews
197
Concerns with Problem Forensic
Interviews 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’s
Approach 213
Introduction
213
Topic One: Purposes and
Development of DSM-5 214
Purposes of DMS-5
215
Development of DSM-5
216
Topic Two: The Elements of a DSM-5
Diagnosis 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 and
Legal 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 Approach 238

Part Three: Obtaining
Mental Health Records 241

Chapter 11: Negotiating the Mental Health Records Maze: Confidentiality, HIPAA,
and Privileges
243
Introduction
243
1. The Mental
Health 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 Rules for Disclosing Protected Health Information 257
What About Alcohol and 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

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