Information for Family Attorneys

Family Law attorneys may be unaccustomed to working on a consultative basis with a mental health professional. More often than not, attorneys tend to see such professionals as being experts, evaluators and therapists, whom they will depose, examine in court and/ cross-examine. The concept of having a consultant in a “team” framework is often not familiar ground. The purpose of this brief monograph is to outline the nature of the Consultative work that is being proposed by this website.

First, the worlds of the attorney and that of the mental health professional could perhaps not be more different. The attorney deals with “facts” and “fact patterns” as though they were material objects, whereas the mental health professional traffics in subtle mixed realties, fraught with ambivalence and innuendo. As the attorney attempts to bring the mental health professional into the court room, and therefore into this legal world, the translation process can be difficult, imprecise and approximate at best. Lawyers often complain that they cannot get a psychological witness to come up with a simple answer, whereas the mental health professional complains about being “tricked” by the lawyer into saying things that they do not really mean. I would suggest that this dynamic is very often the result of these two “world views” attempting to mix together, however finding them to be more like oil and water, than of similar makeup.

In the most general sense, the experienced Consultant, through years of experience and traffic in both of these worlds, can act as translator. In so doing, the consultant can advise the attorney about how to draw what they need from the most obtuse psychological witness, or alternatively, help the mental health witness to avoid the entrapments that are part of the alien ground of the litigation process. In more specific terms, the consultant can help with cross examination questions of a technical nature, in questioning an adverse mental health witness. For example, familiarity with the otherwise hidden flaws of psychological instruments can help to weaken the credibility of the adverse mental health professional who may be erroneously vilifying the client on technical grounds. Many very competent attorneys are not aware of the striking absence of reliable scientific rigor for the instruments used in custody evaluation. As the Psychological community privately struggles with this serious problem internally, as it has for years, these issues seldom make it into public awareness, much less into public scrutiny. There are myriad issues related to reliability and scientific rigor, with which even the most informed attorney could never be expected to keep current.

As further example, the consultant can serve as a repository of the Standards of Practice and other guidelines by which their profession is called upon to operate. The administrative rules for the operation of the statues governing professional behavior are usually not well known by even the most practiced and experienced attorney. Therefore, when these rules are broken, which they very commonly are, an attorney’s unfamiliarity with the rules precludes exposing them as having been broken.

By acting in the consultative capacity, the Consultant is not hamstrung by the limitations of their role being narrowly defined as say, an evaluator, or a therapist. In order to remain unbiased, the evaluator or the therapist is restricted from casual information exchange that may otherwise be helpful to the attorney. Since the Consultant is typically thought of in terms of being “Work Product,” no such restriction applies. Consequently, a very broad and spontaneous “think tank” environment can exist, which can keep the case fresh, and give the client a sense of confidence with the representation.

In the event that a professional expert is required for testimony or for appointment by the Court, the experienced Consultant, having operated within the world of high conflict divorce for many years, can be absolutely instrumental in finding the best expert for the job. This might require a nation wide search, or it might involve a pre-screening of local professionals to determine their suitability for the job. The value that this single task can bring to the case can be very significant.

Other functions that may be performed by the Consultant are as limitless as one’s creative imagination. The bottom line is however, that the Consultant can and should serve as a valuable resource for the attorney as well as for the client. The effective Consultant should make the work of the litigation operate more seamlessly, and with less effort. In short, the attorney no longer has to carry the entire weight of the case.