Why "Therapeutic Jurisprudence" Must Be -- and Will Be -- Eliminated From Our Family Courts--standards and practices in child custody evaluations
One of the problems with the rise of therapeutic jurisprudence and the placement of non-legal systems into the courts is the subtle denigration of long-established precepts of lawyer independence and due process. One of the multiple ways this happens in the family courts is through the common development of multidisciplinary collegial relationships and business referral.
The conflict arises because most lawyers represent different clients taking different sides in different cases (sometimes the wife, sometimes the husband, sometimes the "good guy", sometimes the "bad guy", etc.). If a lawyer coming into a case runs up against an expert he has a referral or employment relationship with in other cases, and that expert takes an adverse position to the lawyer's client in the new case, the lawyer will have a very difficult time adequately representing his client. Appropriate representation may require the lawyer to strenuously object to an expert's testimony -- or even the expert himself. But if the lawyer needs the good will and cooperation of the expert in connection with the lawyer's other clients' pending cases, he cannot do that because he may put those other cases at risk.
Lawyers in these positions will be tempted to rationalize to themselves, as well as maintain the posture in the community at large, that the expert's opinions, even when they are adverse to his client, are scientifically valid -- even when they may not be, even if they are deeply flawed or completely bogus. These lawyers may rationalize to themselves that the validity of the science is not their responsibility because, after all, lawyers are not "scientists".
The lawyer who naively or purposefully steps down the path of multidisciplinary practice, regularly exchanging referrals and engaging in other close associations with nonlawyer case participants (a practice that is encouraged by mixed-discipline organizations such as the AFCC under the Orwellian assumption that this somehow fosters justice and works to "improve" the courts) in fact has sold his professional soul to the devil -- literally.
The lawyer and these other participants in the system have different roles. When lawyers directly hire paralegals, experts, and others to assist them, there is not as much of a problem, even when these individuals are independent contractors. First, their work is covered by attorney work product unless and until they testify. Second, because they were hired by the lawyer, they are subject to the same conflict of interest rules as the lawyer is, as far as their involvement in other cases and with other people. That is not the case with "independent" experts, however. Custody evaluators and guardians ad litem who render opinions "for the court", so-called "court-appointed experts", are a very different matter.
The conflict of interest problems are inherent in the nature of the association. They exist even when there is no explicit association or referral relationship. They are not the same as having a professional relationship with another lawyer who regularly may be on the opposing side of a case, because unlike the lawyer colleague, these individuals are case participants -- witnesses or even parties. They are not akin to neutral judges or magistrates, the bailiffs or other courthouse personnel. None of these truly neutral courthouse persons advocates for a position in a case, testifies as a witness, or participates as a party proper (as do some GALs).
The routine broad involvement of these expert witnesses must be recognized by the legal profession as the egregious misjudgment it is, as well as fostering ethical violations that must be addressed by state bar ethics rules.
Ironically, the problem is worse for lawyers who are not ideologues, because these lawyers are more likely to advocate for different client perspectives. The legal community, even in urban areas, is limited and often close-knit. Lawyers in the same area of practice regularly encounter each other in different cases. The pool of forensic experts and GALs tends to be even smaller. The repeated association time and again of these specialists in cases means that at any time and from time to time any given one of them may show up on the "wrong side" of a lawyer's case -- and simultaneously also be on the "right side" of other of the lawyer's cases, whether as hired expert or court-appointed expert. This creates many of the same dilemmas that ordinary client conflict-of-interest issues do.
Contrary to the rationalizing rhetoric, court-appointed evaluators and opining GALs are not neutral participants in the system. Even if they initially are hired under that rubric, once their reports are rendered, and their opinions formed and ready to be given, they have become advocates for one or the other side or issue. Thus, at a point, they are, just as any party would be, pointedly in favor of certain outcomes, and adverse to others.
What does the lawyer do when an expert the lawyer is relying on in one case takes a similar position that lacks scientific merit against another of the same lawyer's clients in another case. Because the expert and the lawyer have been, are currently, or will be in cahoots in other cases, the lawyer is placed into a conflict, unable zealously to discredit the expert when that is necessary to protect his client. Bar ethics rules must address this. (The experts themselves have the same temptation to manipulate their opinions to please those lawyers with whom they have ongoing relationships and receive referrals -- contributing to yet more corruption of the system.)
Court appointed witnesses and parties in other people's private civil cases are interlopers in the justice system and must be excised. The very integrity of the justice system is at stake. To the extent well-meaning individuals did not fathom the repercussions, and were swayed by sweet-sounding ideas that simply do not work well in practice, and bought into the rhetoric originating in the psychology trade promotion organizations, it's time for a regroup and an honest reappraisal.
Lawyers are advocates. If an expert's position supports the lawyer's client, the lawyer is going to accept that opinion and put it forward in the interests of his client's case. But when the lawyer encounters the very same scientifically meritless position by the same expert in a case in which that does not favor the lawyer's client, what does the lawyer do?
It does not take any "expert" to do a home study or investigate readily observable facts. The proof of that is how often the court-hired opiners are not specialists but lawyers and laypersons. The taint is especially egregious when there is a perception of need for psychological "experts", however, because, unlike other kinds of experts, the field of applied psychology is overrun with political machinations, nonsensical theories, half-baked ideas, and outright misrepresentations. Too often it's not close to "science" and it's not technical knowledge either. Much of the time, it's more akin to an expertise in astrology, or theology -- high familiarity with complicated ideas and methods of calculating answers, and the body of literature that discusses all of this, but otherwise somewhere between unhelpful and misleading when it comes to ascertaining the facts.
Unlike lawyers in many other areas of practice, who may retain their clients for years, family lawyers typically need a steady stream of new one-shot clients. In addition, family lawyers also tend to work in smaller firms. So they value those who send them business. Too many family lawyers, perhaps without recognizing or acknowledging the subtle conflicts of interest that have caused their discomfort and unwillingness adequately to represent some of their clients in some of their cases, in fact have sacrificed these clients on the altar of maintaining their professional relationships, associations, and referral sources.
In such circumstances, some busy family lawyers will admit to feeling burnout, but they've rationalized their unwillingness to zealously advocate for their clients, as well as their discomfort, as perhaps stemming from the "high conflict" created by unreasonable clients, or the high emotional toll their cases are taking on them. Others retain their enthusiasm by becoming extremist ideologues and proponents of bad science, taking only cases in which they will not encounter these conflicts and suspending their judgment and integrity in the interests of churning cases and making money. For example, this is seen among lawyers who assert in case after case with different facts that their clients have been the victims of "parental alienation". (The father's rights advocates also would lay this charge on the anti-abuse industry.) The lawyer resolves the cognitive dissonance by committing to propositions outside of law and outside of the lawyer's academic expertise, and -- maintaining a deliberate self-serving ignorance -- carries these ideas into the media of the legal field. This conveniently furthers the propagation of the bad science, and it inappropriately encourages lawyers to adopt ideological positions of dubious merit.
Some lawyers caught in this vortex justify their lack of vigorous representation, and the coerced settlements they've foisted on some clients as really hailing from a motivation and concern for the best interests of children, or for taking a reasonable settlement position, or the high road, or as their commitment to helping people to just get along. They attempt to redefine their jobs, paternalistically, as dictators who must "control" their clients, not as agents for them. They may profess to themselves and each other and everyone else around a great affinity for mediation and therapy and collaborative resolution, and all manner of therapeutic jurisprudence in the interests of everyone, and similar specious posturing, encouraged in their self-delusion by a steady drip of MHP literature -- and new referral retainers. This kind of thing is just not as pervasive in other areas of the law, no matter how heated the conflicts get, and it's one substantial reason the public has such a generally dim view of the family courts and family lawyers. "Therapeutic jurisprudence" is a primary reason the family courts are seen as not working, unjust, and broken.
Given that clients are entitled to their choice of attorneys, and are entitled to independent, unconflicted agents at law who are committed to furthering their interests and goals (as the client, not the attorney, has defined them), one immediately viable solution is a rule of disqualification of any GAL or forensic expert who previously has been associated in any case with either of the lawyers in that case, and the striking and nullification of all testimony and reports of that expert, no matter at what stage of a case the lawyer is hired and may enter the case.
It also is time to substantially limit the use of forensic experts and GALs in family court altogether because for the most part, MHPs, including child custody evaluators and their related forensic offshoots, in fact are unneeded, unhelpful, and undesirable in the vast majority of child custody cases.
liz 01-08-08
Elizabeth J. Kates, Esq.
Pompano Beach, Florida
Information on these webpages is from ongoing research being conducted by the National Network on Family Law Policy, and by numerous scholars, professionals, and others around the United States who are investigating the workings of our justice system. For more information, contact sarah.
Rethinking the Assumptions of Therapeutic Jurisprudence in the Family Courts
Is Collaborative Law a Good Idea? Notes on Issues and Ethics
Other articles of interest:
The March issue of the Florida Bar Journal contains an article bolstering the position that referral relationships are indeed business relationships. See Business Is Business: Recognizing Referral Relationships as Legitimate Business Interests Protectable by Restrictive Covenants in Florida, by Charles A. Carlson and Amy E. Stoll
An RSVP to Professor Wexler's Warm TJ Invitation: Unable to Join You, by Prof. Mae C. Quinn
Therapeutic Jurisprudence: Embracing a Tainted Ideal, by Arthur G. Christean
Punishing Medical Experts for Unethical Testimony: A Step in the Right Direction or a Step too Far? by David B. Resnik, J.D., Ph.D.
Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice, by Margaret Hagen FREE download from Prof. Hagen's website,
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