Wednesday, May 2, 2012

Why Do Some Experts Lie to Attorneys?

Some experts are less than truthful with their clients

I recently found myself in a situation where I needed to disappoint a defense attorney. The case is ongoing, so I cannot reveal any specific details. However, the attorney called me, gave me a brief account of what he was looking for, and asked me if I could help him. As it was within my area of expertise, I felt comfortable taking the case. We agreed on an hourly fee, and he mailed me a stack of medical and court records and a big retainer check. I was excited because it sounded like a fascinating case, and from the attorney's description of events, I thought I could be very helpful--my testimony would be the foundation of the client's main defense argument.

Quickly into the review of records, I realized I was not going to be helpful to the defense. In fact, if I were to testify about my professional opinion, it would be harmful to the defense's case. I called the attorney and told him my opinion. I could tell he was shocked and disappointed, and I explained I did not like having to tell him I could not be of help. His response was typical of the vast majority of attorneys I have worked with: he preferred to get truthful, bad news than to be told what he wanted to hear only to be surprised during the trial.

I hate having to give attorneys bad news. I do not think I am the only forensic psychologist who feels this way. One of the reasons many of us get into the field of psychology is to help others and make them feel better. What better way to make an attorney's day than to tell him/her that your data is going to be extremely helpful to the case? Just like most other psychologists, I want to help the people who hire me.

There is also the question of money. The more I work on a case, the more money I make. If I am finding data that supports what the attorney is arguing, I typically end up spending a significant amount of time writing reports, preparing for testimony, and sitting around the courthouse waiting to testify. I get paid for all of that time.

These are just two of the reasons psychologists can find it hard to conduct unbiased forensic assessments. We all need to overcome the urge to agree with whatever the retaining attorney asks of us. It is easy to fall into the trap of telling the attorney what he/she wants to hear. The temptation is that we want to please our "customer," and we want to make money (after all, our families need to eat).

The irony of trying to please attorneys by always agreeing with them is that it does not work. If an expert psychologist only tells attorneys what they want to hear despite evidence to the contrary, those attorneys are not pleased in the end. The psychologist may make money on the case, but he/she will not get hired again by those attorneys. And, those attorneys will tell their colleagues.

I don't know what the disappointed attorney did after we parted ways. He may have used the information I gave him to change his defense strategy. Or, he may have looked for another psychologist who could give him a different, more favorable opinion. But, I felt good knowing that I was objective, honest, and ethical. I informed the attorney at the earliest possible moment that I was not going to be helpful, and I gave him plenty of time to pursue a different strategy.

And, I sent a big refund check to him for the unused retainer money.

Thanks for reading-- Max Wachtel, Ph.D.


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