In the 1992 Vice-Presidential debate, retired Admiral James Bond Stockdale, Ross Perot’s running mate, opened with the following words: “Who am I? Why am I here?” Stockdale, a Medal of Honor recipient, no doubt intended his words as a self-deprecating acknowledgment of his political inexperience. He was, nonetheless, made laughing fare by the late-night crowd’s acerbic intimations that Stockdale did not, in fact, know the answers to the questions that he had posed. Despite this sadly storied history of Stockdale’s questions, expert witnesses would do well to ask themselves the second of them before entering the courtroom: Why am I here?
The recent decision in J.F. v. D.F., 61 Misc.3d 1226(A), 2018 N.Y. Slip Op. 51829[U] (Monroe Co., Dollinger, J.) vividly exemplifies what can happen when experts fail to establish and maintain a clearly defined role in the assignments they undertake. In his decision, Justice Richard Dollinger set forth a detailed analysis, an autopsy really, of the expert testimony and found it unworthy of belief. That aspect of the decision will be the focus of this article.
In J.F. v. D.F., the father accused the mother of alienating the affections of the parties’ three daughters. To support his claim, he called three expert witnesses: (1) Amy Baker, Ph.D.; (2) Linda Gottlieb, a social worker; and (3) Robert Evans, Ph.D., all of whom testified that “the mother had alienated the children” from their father. There was, however, a deadly defect at the core of their opinions; the court, as the sole and ultimate trier of fact, found that the daughters were, in fact, not alienated.
Noting that the father enjoyed an equal time-sharing arrangement, the court found that there was “no significant evidence that he has ever been denied or thwarted by the mother from any of his access time.” Indeed, based on the in-camera interviews with the daughters, the court found that they “love both parents and enjoy being with them,” they have “a good relationship” with their father, and they even asked for the “flexibility to stay with him more than the allotted time.” Thus, the court found that there was “not an iota of evidence” that any of the three daughters were alienated from their father.
Further, the methodology employed by the father’s experts also bore a gaping and ultimately fatal wound: Not one of them had ever interviewed the mother or, most critically, the daughters. Because the father’s experts were missing what the court termed “this critical link,” the court found them unworthy of belief.
The court’s decision sets forth a detailed dissection of the testimony of the father’s experts. Among the descriptors that Justice Dollinger applied to their testimony were the following:
- “devoid of any practical significance”
- “an almost sophomoric quality”
- “psychological circumlocution”
- “unrealistic and Pollyannaish”
- “apex of foolishness”
Given the spatial limitations of this column, it is not possible to here relate all the foibles of which the father’s testimonial troika were guilty. As previously noted, every serious practitioner should read the decision multiple times to mine all its nuggets. See Tippins, T.M., “Parental Alienation: What a Concept!,” NYLJ (Jan. 11, 2019). But to give the reader just one example of why such pejoratives were so richly deserved, social worker Gottlieb “testified that a mother who tells her children that she misses them when they are gone is guilty of alienating conduct and manipulation.” As the court stated, “If so, every mother in the world needs reprogramming.”
Dollinger’s reference to the missing “critical link” highlights an important evidentiary aspect of expert opinion testimony. In General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) the Supreme Court stated: “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”
Opining that a mother has alienated her daughters from their father without ever interviewing the mother or the daughters presents a gap of canyon-like magnitude. This point was driven home by Peter Favaro, Ph.D., who testified for the mother in rebuttal that in the absence of the interviews and other essential data the testimony of the father’s experts was “speculative and nonscientific.”
It also raises a significant ethical issue to which the court alluded. The American Psychological Association’s Ethical Principles and Code of Conduct, Section 9.01(b) provides:
Except as noted in 9.01(c), psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions.
Unfortunately, 9.01(c), which relates to the performance of “a record review” or consultation where “an individual examination is not warranted or necessary” provides just enough ambiguity for overreaching experts to wiggle through the ethical crack. It must be remembered, however, that the APA ethics code or any of its guidelines are organizational standards, not rules of evidence or adjudicatory precepts by which a fact-finder is bound.
Thus, an expert witness may employ methods that do not run afoul of psychological ethics but nonetheless impair the admissibility or credibility of the proffered opinion. Positing an opinion of alienation without conducting a thorough evaluation, one that includes interviews with all essential players, is a perfect example of an expert outrunning the data and disregarding inherent role boundaries. That is so whether it violates the APA Code of conduct or not.
The essential point remains that without those interviews the experts lacked a proper basis for their opinions. It is, of course, unlikely that a custody court would direct a party to submit to an evaluation or interview by a psychologist of the opposing party’s choosing (Rosenblitt v. Rosenblitt, 107 A.D.2d 292 (2d Dept. 1985)). It is even less likely that the court would require children to do so. Given the reality of such limitations, the following question emerges: What, if any, role might a mental health professional properly serve in such a case?
The Educative Role
When lawyers think about presenting expert testimony, they most often think in terms of presenting an expert opinion. This is not surprising, given that the signal distinction of expert witness status is that the expert, unlike the lay witness, is permitted to offer opinions and that is usually the purpose of calling them to the stand. Understandable though that perspective may be, it is also myopic. The Advisory Committee Note to Federal Rule of Evidence 702 observes:
Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference.
David A. Martindale, Ph.D., a prolific writer in the forensic psychology field, has written of the value of this type of testimony.
The offering of expert testimony intended to educate triers of fact concerning phenomena with which they may be insufficiently knowledgeable is generally considered to be among the most useful of the types of testimony offered by mental health professionals. Such testimony provides a context within which evidence can be evaluated. (Martindale, D.A., “The Importance of Suggestibility Research in Assessing the Credibility of Children’s Testimony,” Court Review, 38;3, 8-10 (2001)
Importantly, Martindale also advises that when an expert serves in such an educative role that he or she should avoid “immersing oneself in case-specific details,” as such immersion can “compromise objectivity.”
In the context of J.F. v. D.F., an expert functioning in the educative or didactic role could properly inform the court of the empirical research regarding parental alienation and its potential impact on child and adolescent development and perhaps put forth some research-based remedial approaches to advance reunification if alienation has occurred—all useful information that the court can consider and potentially apply to the facts of the case without the expert offering any opinions about the parents or the children.
There is much to be considered when planning an expert-based trial strategy. It’s not just a matter of seeing how many credentialed personages you can get to pile out of your courtroom clown-car. Among the many crucial tasks at hand is to define each expert’s role carefully and then ensure that the expert scrupulously observes the limitations of that role. The failure to do so truly is “the apex of foolishness.”
Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John’s University.