sought by the defense, may be resisted on the ground
that it will further traumatize the plaintiff or that it
is unnecessary because the defendant can probe the
same areas of inquiry through cross-examination of
the plaintiff’s treating experts. However, there are
often limitations to the information that can be derived
from treatment professionals, and forensic examina-
tion may make a significant contribution to the fact
finder’s deliberation.
The treating professional may accept the plaintiff’s
reports with less scrutiny, may not seek verification or
refutation of reported functioning, and may fail to
explore other potential contributors. In contrast, the
forensic examiner may develop opinions based on
wide-ranging, investigative examination employing
multiple data sources and assessment methods. This
reliable testimony is useful to the court in establishing
causation. Finally, forensic examiners are mindful of
the need to stop short when they lack the data to make
assertions; clinical practitioners may not fully grasp
the implications of offering opinions on matters of
causation.Focus of Examination
To determine whether the plaintiff suffered psycho-
logical injury, the forensic psychologist explores the
plaintiff’s functioning across three periods of time—
before, during, and immediately following the alleged
event—and then considers how the plaintiff may be
expected to function in the future. Of particular inter-
est to the court is whether there will be a need for
ongoing mental health treatment and, if so, the type
and frequency or duration of that treatment. Other fac-
tors or events in the life of the plaintiff may have con-
tributed to the changes in psychological functioning
or may account for the plaintiff’s future need for treat-
ment. If it is found that the plaintiff was significantly
psychologically injured before the instant event,
the psychologist will attempt to determine whether
the earlier injury wholly accounts for the plaintiff’s
present psychological injury. Alternatively, the earlier
event may have increased the plaintiff’s vulnerability
to the present injury. This previously injured plaintiff
is sometimes called an “eggshell” plaintiff. It is often
difficult to clearly determine the contribution of this
psychological vulnerability to the present symptom
picture or to future treatment needs. While the law
must attempt to make such fine distinctions in causa-
tion, psychological expertise can provide only some
assistance to the fact finder in the search for causation.The stress of litigation alone may add to the litigant’s
suffering. The plaintiff may lack financial resources,
while the defense, possibly an insurance company or a
large corporation, may be able to afford extended liti-
gation with a team of experts. The plaintiff’s counsel
may pay for the expertise out of its own pocket or have
experts work under a letter of protection, to be paid
only if and when the case is settled in the plaintiff’s
favor. There are potential ethical implications in such
arrangements, specifically regarding compromised
objectivity, and forensic psychologists decline such
engagements. An exception may be warranted when
the forensic psychologist is retained as a nontestifying
trial consultant whose objectivity will therefore not be
relied on by the court.Informed Consent
When the examination of the plaintiff is compelled
rather than voluntarily sought for treatment purposes,
the process of informed consent becomes particularly
significant. The court order makes the assessment invol-
untary, so the plaintiff, by definition, cannot “freely and
voluntarily consent.” The psychologist nevertheless
notifies the plaintiff or the authorized legal representa-
tive, or both, of the purpose of the assessment, the range
of potential consequences, the party responsible for pay-
ment for the examiner’s time, and the absence of confi-
dentiality in the process.Observers
The plaintiff may request an observer, such as the attor-
ney, a therapist, or a family member, in the examina-
tion. This is especially likely when the plaintiff is a
child. In some jurisdictions, the law clearly permits this
accompaniment, and the examiner may have limited
options to oppose it; in other jurisdictions, the matter of
an observer may be decided on a case-by-case basis.
One concern about observation of the examination
is that it renders the administration of some instru-
ments a nonstandard administration and may affect
the outcome in unknown ways. Some efforts have been
made to assess the effects of observers or of audio
recording on tests of cognitive functioning, and
although there have been mixed results, there appears
to be a modest impact on performance in some cogni-
tive domains.
Second, the presence of an observer who has a stake
in the outcome may significantly affect the plaintiff’s
presentation. The plaintiff may be less able to answer552 ———Personal Injury and Emotional DistressP-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 552