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Lawyers Manual - Unified Court System

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72 Kim Susser<br />

Explain to your client that although the expert is a doctor, he or she is not the<br />

client’s therapist — this is not the time to explore her feelings or unburden<br />

herself of her conflicts — and that her discussions with the expert are not<br />

confidential. A good expert will observe each parent interact with the children<br />

separately; prepare your client for this possibility.<br />

You may wish to contact the expert directly and offer to provide court<br />

documents, such as an Administration for Children’s Services report or an<br />

Investigation and Report from Probation. You can offer to provide the expert<br />

with literature about domestic violence. 57 Since many experts do not know<br />

about the law mandating consideration of domestic violence in custody and<br />

visitation cases, consider providing them with a copy of the statute that contains<br />

the legislative intent section. The legislative history written into this law is<br />

extremely valuable, especially because it cites research into the impact of<br />

domestic violence on children even where they are not the direct targets of the<br />

violence. Remember to send your adversary and the law guardian a copy of any<br />

written communication you have had with the expert.<br />

If the forensic report ignores or minimizes the domestic violence, is hostile<br />

to your client, and/or makes inappropriate recommendations, you will need to<br />

prepare to cross-examine the expert. There is a host of psycho-social literature<br />

on the impact of domestic violence on children which you may use as material<br />

for this task. Introduce this literature and the legislative history into evidence,<br />

and then ask the expert whether domestic violence was considered in his or her<br />

recommendation and what weight was it given in light of its established<br />

negative impact on children. When cross-examining an expert who performed<br />

personality tests, be aware that domestic violence victims tend to score higher<br />

on the “paranoia scale” of the Minnesota Multiphasic Personality Inventory<br />

(MMPI) than others because the scale measures not only paranoia but fear in<br />

general. 58 Attorneys representing domestic violence victims who have been<br />

administered such tests by experts have frequently found that the experts<br />

misinterpret the data or fail to understand how experience as a domestic<br />

violence victim can skew the results.<br />

You will also wish to obtain impeachment material for your cross-examination<br />

of the expert. 59 One of the richest sources of such material is likely to be the<br />

expert’s own notes, especially if your client reports that she discussed the history<br />

of violence with the evaluator but there is no mention in the final report. Although<br />

there are some lower court decisions denying pre-trial disclosure of the notes of<br />

forensic experts, 60 there is no appellate ruling on the issue of obtaining such<br />

data and there are strong arguments to be made in favor of such disclosure. 61

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