What to Do When Opposing Counsel Asks What Tests Your Expert Will Use

Prosecutor: Hi, Doctor! I’m calling to see what you’re doing next Thursday afternoon.

Doctor: Let me see. Okay, it says here that I’ll be examining the defendant in your latest murder case. It also says, “make sure to find the defendant competent,” but that’s just something my accountant wrote in later.

Prosecutor: Remind me to stop recording these calls. What I need to know is what you’re doing next Thursday, because . . . .

Doctor: I’ll … be … examining … the … defendant … in … your …

Prosecutor: Here’s what I’m trying to get at. Defense counsel—who was upset enough that you’re being allowed to test the defendant in the first place—is now demanding a list of every test you’re going to give, in order to be able to object if there’s something on the list that’s, well, objectionable.

Doctor: Okay, so I won’t be examining the defendant in your latest murder case.

Prosecutor: You feel that strongly about this issue?

Doctor: Not really, but I was assuming you would.

Prosecutor: I’ve never run into this before, actually. I’m typically never told if or when the other side is going to have their clients examined until it’s already happened. When the tables are turned, defense counsel is usually agitating for a seat at the examining table, not just a copy of the menu.

Doctor: Why are things different in this case?

Prosecutor: Because I don’t think they really care what tests you’re going to give. I think they’re just hoping they can still find some way to run you off and keep this from happening at all. So why would I have a dog in this particular fight?

Doctor: Because this issue goes beyond whether the other side can prevent the exam from happening. It addresses the reliability and validity of the exam itself, which winds up being the argument that allows you to prevail.

Prosecutor: I know I’m the one who’s supposed to make the arguments, but tell me: What am I arguing?

Doctor: First of all, the list of tests is always going to be flexible, depending upon the demands of the examination as it occurs in real time. For example, I may discover that the defendant is incapable of grasping the instructions for a certain test, which might call for me to use a different, easier-to-understand test in its place. Also, the results from the first test I give may dictate which test I need to choose next because a particular clinical issue is now surfacing.

Prosecutor: So, you might have a pretty good idea of what you’re going to use, but when you start working with the defendant, your plans could go out the window?

Doctor: Sure. It’s just like the “examinations” that you conduct. On direct or on cross, you may realize that a different approach is warranted, or even necessary.

Prosecutor: I can make that argument, and this analogy would make sense to defense counsel …

Doctor: … who won’t care. But your judge will. Here’s another point along the same lines: Changes might need to be made even before the examination begins because the literature base and the online listserv traffic are constantly evolving, prompting me to decide that a different test than the one I thought I was going to use is really the best way to go.

Prosecutor: Would I need to provide copies of these articles or listserv postings to the court?

Doctor: Only if you let the other side manipulate you into this situation in the first place. Here’s another point: I may see something in the records from this case—which often continue to flood my inbox right up to the date of the examination—that tells me I need to find a different test than the one I’d originally chosen. For example, what if I find out that some other doctor was suspecting the presence of something that now needs to be checked out, or when I realize that some other doctor recently gave the test I wanted to give?

Prosecutor: The “Practice Effect”!

Doctor: Right. Think how much better you’d have done on the bar exam if you took it once and then got to go back and take it again.

Prosecutor: Which is actually what happened, so let’s not go there. I hear you, though.

Doctor: Record review isn’t the only way I can find out someone already took one of my tests. Sometimes a defendant will recognize the thing when I’m pulling it out of my briefcase, or after they read the first few questions.

Prosecutor: Is that always going to be a dealbreaker?

Doctor: No. Sometimes this isn’t really about the “Practice Effect” at all. In fact, there are some tests—like screening measures for depression or anxiety—that aren’t affected much, if at all, by knowing what the questions are in advance, and that I actually like to give a few times myself, at intervals, to see if someone is or isn’t making progress.

Prosecutor: So, it’s just with the IQ-type tests that knowing what they’re about can interfere with the validity of the examination?

Doctor: No. There’s another area. Malingering. If defense counsel knows what tests in my battery are going to be used specifically to catch their client exaggerating a psychiatric condition, or making one up out of whole cloth, what’s to prevent them from placing their client on alert and making those measures useless—in this exam, and in others?

Prosecutor: Defense counsel and I have had our disagreements, but I’ve never accused them of doing anything unethical.

Doctor: I’ve worked with them myself, and they’ve always seemed like straight shooters. It’s above my pay grade to determine what is or isn’t unethical, but I’ll bet we can agree that this creates an ethically fraught situation, in which one might even be able to argue that not speaking to the client about these kinds of tests is a problem.

Prosecutor: In other words, why put opposing counsel in this position in the first place, when there doesn’t really seem to be anything for them to gain by knowing what tests you’re going to use?

Doctor: Precisely. After all, what legitimate motivation exists for defense counsel to obtain this information? To object to my using tests that they don’t consider reliable and valid? On the contrary, they should be thrilled that I’m doing a job they can poke holes in later … and anyway, why do they want to tip their hand to us in the course of such an objection, thus allowing us to prepare better for a deposition, hearing, or trial?

Prosecutor: I’ll draft up something to address this matter today. Do you want to see it before I file it?

Doctor: Surprise me.

Our readers were also promised a “balanced approach,” so here goes: Defense counsel, don’t be discouraged from asking for advance information about the prosecution expert’s test battery if it suits your purposes. You might want to be able to argue, for example, that you’re seeking to prevent testing that actually runs afoul of the Practice Effect because of your concerns that this might waste money, unduly burden your client, and create unnecessary confusion for the court.

Please feel encouraged to contact Dr. Drogin at [email protected] with any questions about psychological test battery disclosure, or with any suggestions for future topics.