It is no secret that the Courts are overburdened with litigation. With matrimonial trials sometimes lasting weeks, courtroom time is at a premium. Wishing to reduce both the congestion and the cost of litigation, judges will commonly appoint “neutral” experts, instead of each party hiring his/her own partisan expert. By appointing a neutral expert, the Court avoids the problem of different experts arriving at different opinions. Where there are different opinions on important issues like asset values or parental fitness, trials are more likely because the parties cannot agree on important terms.
In matrimonial cases, trials are often avoided when a neutral expert produces his or her report in court in advance of trial. The attorneys read the report and typically discuss the conclusion(s) with the judge in conference. That conclusion holds great weight — after all, it was produced by a neutral expert who presumably had no reason to be biased in favor of either party. Many judges make no secret that they are inclined to reach the same conclusion at trial that appears in the neutral expert’s report. In this way, a neutral expert’s report not only discourages the disagreements that come from having different experts, it also becomes a tremendous tool to pressure litigants to settle.
The power of the neutral expert is even more compelling when the expert is a forensic psychologist. Custody trials are among the longest and nastiest contests to grace a courtroom. A judge who possesses leverage to avoid such a spectacle is loathe to give it up. Not surprisingly, an attorney who suggests that the forensic psychologist was biased in favor of one of the parties, or who for any reason believes that the conclusions are unsupported by the raw data that underlies the report, often meets with resistance. Initially, there is reluctance to believe that a court-appointed neutral professional would ever be unfair. The operative assumption is that neutral equals unbiased. However, this fails to consider that many things can cause bias, and not just the prospect of pecuniary gain. Even something as mundane as a good first impression can cause a favorable bias. Known in psychology as “confirmatory bias,” it can afflict anyone, even a lofty forensic psychologist. Of course, gender, ethnicity, and cultural norms cause bias too.
There are other problems with forensic reports, including incomplete and sloppy investigations, reliance on unreliable collateral sources, and poorly scored psychometric testing. Unfortunately, few if any of these problems are readily apparent from reading the forensic psychologist’s report. The only way to know what is really going on is to look at the underlying data, including the psychologist’s notes from interviews of the parties and the children, notes from interviewing collateral sources (teachers, social workers, grandparents, etc.), or a party’s answers to the psychometric testing and the method by which the test was scored.
But gaining access to the underlying data is problematic, and not just because the court has a vested interest in keeping things simple. There are potential problems that come with disclosure of the data. Children who trust that the forensic examiner will not reveal what they say in confidence may feel betrayed should this information come into the courtroom. The parties themselves can become the target of unscrupulous public disclosure of sensitive information revealed in interviews.
Clearly, there is a need to balance disclosure with safeguards to protect litigants and children. Legislation sponsored by Assemblywoman Helene Weinstein (A08342A) earlier this year sought to strike this balance. The bill provided that “any report prepared by the forensic evaluator shall be confidential and under seal except that all parties, their attorneys and the attorney for the child shall have a right to a copy of the forensic report as well as copy of the forensic evaluator’s file, including supporting records and data.” The bill also proposed to protect the litigants and their children from abuse by directing courts to issue protective orders imposing restrictions on republishing and distributing the reports, and provide a mechanism where courts can punish a delinquent party with contempt of court.
Unfortunately, the bill failed to pass. But all is not lost. Recently, Nassau County Supreme Court Justice Jeffrey Goodstein issued a landmark decision in <em “mso-bidi-font-style:=”” normal”=””>J.F.D. v. J.D. (NYLJ … 10/17/14) which attempts to strike that same balance. Holding that a divorcing husband’s attorney and expert (hired for trial) were entitled to review all the raw information generated by court-appointed forensic, Justice Goldstein ruled that, going forward, he would — with certain ground rules in place — allow the parties themselves to review the report of the neutral expert, as well as the raw materials. Justice Goldstein considered this disclosure essential to effective cross examination. Without the raw data, “the litigator is limited to cross examination of the forensic evaluator and a forensic report without knowing which questions to ask and without being able to properly establish to the court, the trier of fact in matrimonial cases, any deficiencies in the report or bias on the part of the evaluator.”
This decision is long overdue, and hopefully other trial courts will follow suit. Giving each party the ability to effectively challenge an unfair report at trial by having meaningful access to the report and the underlying data, while placing safeguards in the way of abusive disclosure, should be every litigant’s right. With custody reports from court-appointed neutral forensic psychologists being given so much weight in our busy court system, it is essential that fair and equal access to the underlying data be afforded to all.