WILL DSM-5 CHANGE EXPERT TESTIMONY?
Bipolar Disorder. Narcissistic and Histrionic Personality Disorders. These diagnoses from DSM-IV-TR quickly catch a judge’s or jury’s ear—and raise concerns. DSM-5, the next revision, is scheduled to be published in May. Revisions portend changes, and DSM-5 promises them—adding diagnoses, recasting some, dropping others. For example, Narcissistic Personality Disorder is expected to remain; Histrionic Personality Disorder won’t make the cut. Controversy among mental health professionals abounds.
Nevertheless, too many mental health experts will continue to misuse DSM diagnoses in the same way—as broad-brush, professional “stamps of approval” that substitute for clear, trustworthy testimony. The most common misuse occurs when an expert attaches diagnostic criteria to cherry-picked events from a litigant’s life or to selected test responses of the litigant.
Three foundational DSM-IV principles sure to survive in DSM-5 offer useful starting points for questions to experts who insist on basing their testimony primarily on diagnoses rather than on relevant documented behaviors tied to parenting demands or other capacities at issue in the case:
• The DSM-IV-TR was developed for “clinical, research, and educational purposes”—not for legal purposes. (Introduction, at xxiii).
• The DSM-IV-TR requires that mental health professionals exercise clinical judgment when interpreting and counting criteria that comprise a diagnosis. Diagnostic criteria “are meant to serve as guidelines . . . not meant to be used in a cookbook fashion.” (Introduction, at xxxii).
• The DSM-IV-TR cautions about using diagnoses in court, noting that “there are significant risks that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between questions of ultimate concern to the law and the information contained in clinical diagnoses.” Further, “It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.” (Introduction, at xxxii-xxxiii).
Whether DSM-IV or DSM-5, the basics of expert testimony still apply: “It is not so simply because an expert says it is so.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W. 713, 726 (Tex. 1998). If the expert invokes a DSM diagnosis, challenge the expert to specify why the diagnosis is relevant, the basis for the diagnosis, and how the diagnosis compromises the litigant’s functioning in matters of concern to the court.
Reference: John A. Zervopoulos, How to Examine Mental Health Experts 155-162 (2013).
Brief Quote: In “personal injury litigation, child custody litigation, and testamentary or contractual competence determinations, the law does not make diagnoses an essential element of a claim or defense. Instead, legal criteria for these actions are functional and concern themselves with impairment or capacity without regard to diagnosis.” Stuart A. Greenberg, Daniel W. Shuman & Robert G. Meyer, Unmasking Forensic Diagnosis, 27 Int’l J.L. & Psychiatry 1 (2004).
Book Announcement: I am pleased to announce the release of my second book, How to Examine Mental Health Experts: A Family Lawyer’s Handbook of Issues and Strategies. Published by the ABA Section of Family Law, this quick-reference styled book uses my structured PLAN Model, based in caselaw and in psychology’s literature, to help lawyers spot, analyze, and address mental health expert issues they will encounter in their cases. As a result, lawyers will sharpen their critique of an expert’s work, improve their direct or cross examinations of the expert, and develop compelling arguments about the extent to which the court can trust the expert’s opinions and recommendations. Please feel free to click on the book’s title above for more information at the ABA’s website.
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John A. Zervopoulos, Ph.D., J.D., ABPP is a board certified forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service. Dr. Zervopoulos—combining the psychological and legal perspectives—assists lawyers to organize, critique, and use psychology-related materials and evidence in their cases. He has also authored two ABA-published books: How to Examine Mental Health Experts: A Family Lawyer’s Handbook of Issues and Strategies (2013) and Confronting Mental Health Evidence: A Practical Guide to Reliability and Experts in Family Law (2008). Dr. Zervopoulos is online at www.psychologylawpartners.com and can be contacted at email@example.com or at 972-458-8007.