Lawyers Manual - Unified Court System

72 Kim Susser
Explain to your client that although the expert is a doctor, he or she is not the
client’s therapist — this is not the time to explore her feelings or unburden
herself of her conflicts — and that her discussions with the expert are not
confidential. A good expert will observe each parent interact with the children
separately; prepare your client for this possibility.
You may wish to contact the expert directly and offer to provide court
documents, such as an Administration for Children’s Services report or an
Investigation and Report from Probation. You can offer to provide the expert
with literature about domestic violence. 57 Since many experts do not know
about the law mandating consideration of domestic violence in custody and
visitation cases, consider providing them with a copy of the statute that contains
the legislative intent section. The legislative history written into this law is
extremely valuable, especially because it cites research into the impact of
domestic violence on children even where they are not the direct targets of the
violence. Remember to send your adversary and the law guardian a copy of any
written communication you have had with the expert.
If the forensic report ignores or minimizes the domestic violence, is hostile
to your client, and/or makes inappropriate recommendations, you will need to
prepare to cross-examine the expert. There is a host of psycho-social literature
on the impact of domestic violence on children which you may use as material
for this task. Introduce this literature and the legislative history into evidence,
and then ask the expert whether domestic violence was considered in his or her
recommendation and what weight was it given in light of its established
negative impact on children. When cross-examining an expert who performed
personality tests, be aware that domestic violence victims tend to score higher
on the “paranoia scale” of the Minnesota Multiphasic Personality Inventory
(MMPI) than others because the scale measures not only paranoia but fear in
general. 58 Attorneys representing domestic violence victims who have been
administered such tests by experts have frequently found that the experts
misinterpret the data or fail to understand how experience as a domestic
violence victim can skew the results.
You will also wish to obtain impeachment material for your cross-examination
of the expert. 59 One of the richest sources of such material is likely to be the
expert’s own notes, especially if your client reports that she discussed the history
of violence with the evaluator but there is no mention in the final report. Although
there are some lower court decisions denying pre-trial disclosure of the notes of
forensic experts, 60 there is no appellate ruling on the issue of obtaining such
data and there are strong arguments to be made in favor of such disclosure. 61