Ten Tips in Proving Psychological Damages

By Diana McCoy, Ph.D.

There are times when you may want to consider seeking psychological damages. In certain cases, your plaintiff may have already sought psychological help from a therapist. While treating therapists are often less expensive than forensic experts and have extensive knowledge of a plaintiff's mental state, including, perhaps, first-hand contact immediately after the injury, they will nonetheless be viewed as subjective and biased in favor of the client because of their inherently supportive role. They are also easily discredited because few counselors routinely obtain extensive records, perform psychological testing, and interview collaterals in the course of doing psycholotherapy. Additional considerations are these:

1) Decide whether a written report is required or even advisable. Aside from the fact that a written report is obviously more expensive than no report, it can be a road map for the other side to zero in on. On the other hand, a favorable report may be a strong incentive for settlement. Although to write a report or not to write a report may be an option in state cases, since December 1, 1993 with Rule 26(a) (2) (B) in Federal cases the expert witness, whether for plaintiff or defense, must submit a report containing all opinions and identifying everything considered and not just that upon which the witness relied in forming opinions, and listing the qualifications of the witness, including publications authored in the past ten years and all cases in which the witness has testified within the preceeding four years.

2) If you already have a treating psychologist/psychiatrist on board, determine whether that individual will opine on damages. Mental health professionals are often loathe to commit to such a position, are reluctant to take a stand on prognosis, and are inexpeienced and uncomfortable with litigation in general. If this is your situation, if you think the professional's credentials will not stand up, or if she/he does not appear to be a potentially strong witness, consider hiring a forensic expert to review the records of your treating doctor as well as to interview and do psychological testing with the client.

3) In considering your litigation budget, anticipate that a comprehensive evaluation means that your expert will review a large number of documents relevant to the litigation, such as depositions of key witnesses, motions for summary judgment, interrogatories and responses to interrogatories, etc. The expert needs to know both plaintiff's as well as the defense's theory of the facts. The expert will expect your assistance in getting all of the client's previous records, such as psychological, medical (including prescription records), employment, military, etc. Failure to cover all the bases makes your expert appear to be a hired gun who is merely parroting your wishes without taking the time and energy to adequately research the case, including such issues as the level and impact of the alleged injury, a previous history of similar problems, or other "clues" which may be buried in the records. Records, of course, can substantiate the plaintiff's claim as well as can suggest other corroborating witnesses. All records sent to your expert are discoverable. It takes a long time to get records, so start early.

4) Be sure the client is well aware that pleading emotional distress will result in very close scrutiny of the most private aspects of this individual's life in order to determine her/his credibility. This would include having to produce notes of counseling sessions as well as depositions with counselors who may currently be treating the plaintiff, thus affecting the nature of that relationship. Also be clear with the client regarding what an evaluation and possible testimony of a forensic expert may entail financially in order to avoid "sticker shock" when the expert's bill arrives. Many forensic experts consider the attorney the actual client and the one who is responsible for the fee. Clarify this up front.

5) Be sure the alleged trauma will stand up to close scrutiny. Will it pass both the "giggle test" and the "whining test" in front of a jury, or will the claims be seen as trivial, feeling sorry for her/himself, something that happens to everyone, or just plain ridiculous? If more than one plaintiff is alleging psychological damages, is one plaintiff's case regarding damages weaker than the other(s) to the point that it will destructively impact upon the overall damages claimed?

6) Before you go to the time, trouble, and money of hiring a forensic expert, do a thorough enough social history to determine whether there is some aspect of your client's background that might seriously prejudice the case and which perhaps may not be kept out of evidence. For example, has your client had an abortion? Failed to follow medical advice? Had a history of being fired? Made previous claims of harassment/discrimination? Getting records early or having a phone conversation with the treating therapist prior to filing suit may be one means of determining whether something disastrous is lurking dead ahead which may prohibit taking the case. On the other hand, a previous problematic history or co-existing stressor does not carte blanche mean tha the case is unworkable but that some energy needs to be expended in sorting out causation. For example, a previous trauma or condition may have made the plaintiff more vulnerable but the damages would not be present had not the present injury occured is but one of the several possible scenarios.

7) Try to "paint a picture" of maladjustment and life changes the client has experienced since the injury in everyday, commonsense terms to which a jury can easily relate and on which psychological test data and interview data can build without relying simply on emotional terminology. For example, a juror can empathize with how upsetting it would be for an individual to suffer from symptoms resulting from trauma, such as lying awake all night, gaining or losing weight, going to the doctor frequently because of stress-related medical problems, avoiding close friends because of shame and embarassment, constantly obsessing about an upsetting event to the exclusion of everything else, smoking/drinking more than was done in the past, etc.

8) Plan on using lay witnesses to develop the plaintiff's case, some of whom your forensic expert interviewed for the purpose of substantiating the plaintiff's claims of damages.

9) Be prepared for the other side to conduct a mental examination, and prepare your client accordingly for what kinds of questions may be anticipated. It may be that present at this examination are counsel and a mental health expert employed by the plaintiff. The examination may be tape recorded. Assume the plaintiff will be closely scrutinized on such issues as other stressors coinciding with the injury, malingering, and pre-existing psychological and/or medical problems which may be contributory, including side effects of medication.

10) Realize your expert will be attacked on all fronts, including but not limited to conformity with Daubert standards, credentials, being primarily a plaintiff expert, failure to obtain all records, including those representing both the defense and plaintiff's points of view, improper interpretation of psychological testing, relying too much on the client's input, failure to consider other potential causes of the injury, etc., etc.

Update your expert on current law and case law. To quote one legal scholar, "You may not need to know psychology, but the psychologist may need to know the law." It makes a poor impression for an expert to stutter and stammer when asked about legal definitions on issues about which she/he is testifying, and even a slight deviation may weaken that expert's credibility to the jury.

While there are any number of pitfalls in developing a case for psychological damages, a successful presentation is often the wild card that tips the scales, not only in the actual amount of the financial award but also in the jury's initial consideration of liability.