“If you aren’t in over your head, how do you know how tall you are?”
–T.S. Eliot
David: You’re gay for saying that.
Cal: I’m gay for saying that?
David: You know how I know you’re gay?
Cal: How? How do you know I’m gay?
David: Because you macramed yourself a pair of jean shorts.
Cal: You know how I know *you’re* gay? You just told me you’re not sleeping with women any more.
David: You know how I know you’re gay?
Cal: How? Cause you’re gay? And you can tell who other gay people are?
David: You know how I know you’re gay?
Cal: How?
David: You like Coldplay.
–The 40 Year Old Virgin (2005)
If there’s one thing you’ll learn from John Zervopoulos in Confronting Mental Health Evidence, it’s: “How do you know what you say you know?” That key question is Zervopoulos’ tool for evaluating mental health reports and testimony, including in divorce and family law cases. Zervopoulos brings his experience as both a psychologist and a lawyer to the challenges mental health experts present in court, including in divorce and family law court. He advises repeatedly that the simplest and best way to evaluate mental health professionals, their methods, their supporting materials, and their conclusions is that question: “How do you know what you say you know?”
Zervopoulos presents a thorough yet practical approach to understanding the intersection of psychology and family law. His book is educational, analytical and useful to every divorce and family lawyer. It provides a solid introduction to the mental health profession. It delves into the Frye-Daubert arena of evidence. And it provides an immediate application to your family law cases. There are paragraphs that can be transformed into themes and theories for your opening statements and closing arguments applicable to your divorce and family law cases. There are topics that can provide a structure for a persuasive direct examination. And there are significant points to be made on your cross examination in your divorce and family law cases.
Zervopoulos’s 206-page book subdivides into three parts: (1) three critical perspectives; (2) exposing analytical gaps; and (3) obtaining mental health records.
Part One of Confronting Mental Health Evidence focuses on three critical perspectives that we must understand as we deal with mental health issues and testimony in all our divorce and family law cases. The emotional perspective focuses on family dynamics. The emotional effects of the divorce are explained through three “keys.” The first key is recognizing the “His” and “Her” marriages within the marriage. The second key is understanding the events surrounding the couple’s separation and filing for divorce. The third key is recognizing sources of impasses, which impede resolution of the divorce. All of Part One is applicable to every divorce case you have, regardless of whether mental health experts will be involved.
The legal perspective focuses on a Frye-Daubert Analysis Model which applies the principles common to each line of divorce and family law cases to the subject of mental health experts.
Zervopoulos discusses and compares the Frye and Daubert frameworks and breaks down the shared principles into four inquiries:
- Step One—Determine Whether the Witness Is Qualified as an Expert.
- Step Two—Determine Whether the Expert’s Methods Follow Applicable Professional Standards of the Relevant Professional Specialty.
- Step Three—Evaluate the Empirical and Logical Connections Between the Data Arising from the Expert’s Methods and the Expert’s Conclusions.
- Step Four—Gauge the Connection Between the Expert’s Conclusions and the Proffered Expert Opinion.
Zervopoulos carries this four-step framework into his discussion of the psychological perspective, which is applicable to all divorce and family law cases. Using the Frye-Daubert Analysis Model, he uses Step One—MHP Qualifications and Use and the Psychological Perspective— to explain how to sort through the qualifications, how to choose the right mental health specialty, and how to use the expert to your advantage in your divorce and family law case. He uses Step Two—Methodology and the Psychological Perspective—to explain mental health guidelines and protocols, forensic interviews, third-party information, and psychological testing. He uses Step Three—Drawing Conclusions from Data and the Psychological Perspective— to explain biases and how to counter them, research and professional literature, and the organization of data and conclusions for your divorce and family law cases. And he uses Step Four—The Expert Opinion and the Psychological Perspective—to explain family evaluations and the functional assessment model.
That model asks:
- What Are the Child’s Developmental Needs?
- What Are the Functional Parenting Abilities of Each Parent?
- What Causal Factors Explain Parenting Deficits Noted in Either Parent?
- How Do Each Parent’s Abilities and Deficits Compare with the Demands Required to Meet Each Child’s Developmental Needs?
In Part Two, Zervopoulos focuses on exposing analytical gaps and applying a scientific–critical thinking mindset to your divorce and family law cases. He first presents the elements of critical thinking and then moves to exposing analytical gaps. He discusses four areas to exploit in your divorce and family law cases and shows how to expose overly abstract psychological concepts, “common sense” notions used to support expert opinions, ipse dixit assertions (dogmatic, “he himself said it”statements), and conclusory attempts to invoke the general acceptance factor.
Part Two concludes with an examination of two common problems found in divorce and family law cases and uses highly volatile environments as case examples. Chapter 7 highlights the problem of misapplied or misrepresented research, and the discussion uses domestic violence as the backdrop, which does occur in divorce and family law cases. Zervopoulos examines the conceptual challenges in domestic violence cases, the professional literature, female-initiated violence, gaps in domestic violence testimony, the different types of violence (with different causes) and the experts methods, data, conclusions and opinions — all applicable in divorce and family law cases.
Chapter 8 highlights the problem of confirmatory bias, and the discussion uses child sexual abuse as the backdrop. Zervopoulos examines behaviors and symptoms, the key principles when considering such allegations, disclosure statements, suggestibility and memory, negative stereotyping, source attribution, incentives and social pressures, forensic interviews, anatomically detailed dolls, and research based protocols — all of which we must understand as divorce and family law attorneys.
Finally, in Part Three, Zervopoulos shows how to obtain mental health records. His discussion includes confidentiality, privacy, HIPAA, privilege, test data, and strategies for working through this “maze,” which is essential for divorce and family lawyers to understand.
Zervopoulos also includes: (a) an appendix with internet sources for mental health ethical codes and guidelines, and (b) a detailed index.
When encountering the black box of psychological opinions, “How do you know what you say you know?” serves as a simple and effective way to understand, evaluate and challenge mental health professionals in your divorce and family law trials. Zervopoulos uses his experience as both a psychologist and a lawyer to teach us how to use this question as we move through methods, materials, and conclusions in our divorce and family law cases. Learn from John Zervopoulos and begin asking “How do you know what you say you know?” in each of your divorce and family law cases.
John A. Zervopoulos, CONFRONTING MENTAL HEALTH EVIDENCE: A PRACTICAL GUIDE TO RELIABILITY AND EXPERTS IN FAMILY LAW (2008, American Bar Association). $89.95.