Download this articleA principal function of the civil justice system is to make whole any person injured by another’s careless or intentional actions, insofar as that is possible. In theory, this applies to all types of injuries, whether they are of a physical, psychological, financial, or property nature. In practice, however, not all injuries are created equal. Consider, for example, the recent case of Laura Schubert, a 17-year-old girl in Texas. Ms. Schubert sought compensation for injuries suffered in an exorcism conducted during a church youth group meeting.[1] She testified that she was cut and bruised during the exorcism, which caused a variety of subsequent mental and emotional injuries, including mental anguish, emotional distress, post-traumatic stress disorder, depression, and a suicide attempt.
Ms. Schubert and her parents sued the church, the senior pastor, the youth minister, and several church members. They made a number of claims, including negligence, intentional infliction of emotional distress, child abuse, assault, and false imprisonment; only the claims of assault and false imprisonment went to trial. A jury found in favor of Ms. Schubert, awarding her $300,000 for her pain and suffering, lost earning capacity, and medical expenses.[2] On appeal, the Texas Court of Appeals reduced the award to $188,000,[3] and on the defendant’s further appeal, the Texas Supreme Court threw out the award altogether. The Texas Supreme Court held that the First Amendment’s Free Exercise Clause precluded the church’s liability for the plaintiff’s emotional injuries. More relevant to the present discussion, the Court held that the First Amendment would not protect the church from liability for a plaintiff’s physical injuries.[4]
Examples of Disparate Treatment of Physical and Psychological Injuries
The Pleasant Glade case reflects a widespread double standard with respect to the law’s treatment of physical versus psychological injury.[5] There are numerous examples of this double standard; for illustrative purposes, we select two.
Example 1: The tort of negligent infliction of emotional distress (NIED).Plaintiffs can almost always recover general, or noneconomic (e.g., pain and suffering), damages for psychological injuries that are attendant on negligently caused physical injury.[6] There is considerable variability across jurisdictions in what these psychological damages can include: pain (which has a mental as well as a physical component), mental suffering, emotional distress, mental anguish, loss of consortium or parental companionship, loss of enjoyment of life, anxiety, discomfort, humiliation, shock, and impairment of faculties are all compensable elements of general damages in various jurisdictions.[7] There is no question that jurors respond to the psychological components of an injury. Mock jury research shows that plaintiffs’ mental suffering contributes more to the perceived severity of their injuries and ultimate noneconomic damage awards than any other injury dimension (e.g., pain, disfigurement) except disability.[8]
Although all of these psychological injuries are potentially compensable when they result from physical harm, only rarely can plaintiffs recover damages for NIED in the absence of physical harm. That is, most states require a manifestation of physical harm for plaintiffs to recover damages for NIED.[9] This is true both when the plaintiff has been injured directly and when the plaintiff has witnessed injury to a third party.[10]
Moreover, to recover damages for the intentional or reckless infliction of emotional distress (absent a physical injury), the defendant’s behavior must meet the higher standard of “extreme and outrageous conduct.”[11] There are some limited instances – such as wrongful death cases – where the law allows damages for psychological injury alone due to negligence. Nonetheless, compensation for survivors’ non-economic losses (e.g., mental suffering, loss of consortium) is controversial and limited, especially compared to compensation for economic losses (e.g., lost earnings). In addition, in wrongful death cases someone has suffered a physical injury (i.e. the decedent), even though the surviving plaintiff typically has not.
Example 2: The Americans with Disabilities Act. The Americans with Disabilities Act (ADA) classifies a person as disabled if he or she has “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.”[12] On the surface, then, physical and mental maladies appear to have equal standing. In practice, however, the courts treat them differently. Compared to physical illness, courts have been less likely to find that mental illness limits a claimant’s major life activities; hence mental illnesses are less likely to qualify as disabilities under the ADA.[13] As with NIED, the ADA case law treats physical and psychological injuries differently.
The law’s reluctance to place psychological injury on a par with physical injury arises from “the fear of fictitious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability.”[14] These are legitimate concerns, and the courts rightly seek to combat frivolous litigation and malingering. It is easier to fake mental anguish than many physical injuries, such as a fracture, burn, or puncture wound. Yet as insurance adjusters can attest, claimants have faked virtually any injury imaginable, and some physical injury claims, like chronic pain or soft-tissue damage, can be just as hard to document and prove as psychological harm.[15]
Policy considerations necessarily dictate some limitation on potential defendants’ liability, and the courts cannot be faulted for attempting to draw the line at an intuitively appealing boundary – namely, the line between physical and psychological symptoms. Unfortunately, the line is not as clear as it might at first appear. Severe emotional damages can occur in the absence of any physical injury. Consider, for example, a woman who lives with the fear that she is at higher risk for developing certain kinds of cancer because of a drug company’s negligence in producing medication that her mother took during pregnancy.[16] Such a fear can be pervasive and debilitating. Barring recovery for such damages, or setting a higher standard of proof, is not necessarily a wise policy.
There are two main reasons why the distinction is problematic.[17] First, it presumes that physical injuries are more legitimate, or serious, than psychological injuries. This presumption, which calls to mind the children’s rhyme of “sticks and stones may break my bones, but words will never hurt me,” is patently false. Psychological injuries can take as long to heal, can be as resistant to treatment, and can impair an individual’s normal functioning, every bit as much, and in some cases more than, physical injuries. Serious mental illness costs billions of dollars in direct costs[18] and even more in indirect costs, such as lost income.[19] In any given one-year period, roughly 20% of Americans, children as well as adults, suffer from a diagnosable mental disorder.[20] These figures make it clear that psychological ailments can be quite severe.
The second problem is that the distinction ignores the close interconnectedness between physical and psychological health (and sickness), and the impossibility in many instances of teasing the two apart.[21] An abundance of research shows that physical ailments have psychological consequences and, in some cases, psychological causes.[22] Chronic illnesses (e.g., diabetes, multiple sclerosis) can cause depression and anxiety, and these psychological elements can worsen the symptoms and course of a chronic disease. Pain is a curious case in point. On the one hand, it is presumed to be a physical symptom that accompanies tissue damage; yet on the other hand, it is every bit as subjective as mental suffering, and it is likewise amenable to psychological treatment.
In addition, a wealth of research over the last half-century illustrates that many presumably “mental” illnesses have biological causes, such as structural brain abnormalities, neurotransmitter or hormonal imbalances, or genetic predispositions.[23] With disorders like schizophrenia, bipolar and unipolar depression, obsessive-compulsive disorder, and substance abuse/addiction disorders all having at least some sort of biological contribution, it is harder nowadays to find a mental illness that does not have a physical component than it is to find one that does. Thus, one could just as easily say that Laura Schubert’s botched exorcism caused a neurochemical imbalance and a host of physical symptoms (e.g., sleep and weight disturbance) as that it caused a pervasive mood change. Referring to certain disorders, such as schizophrenia or depression, in purely psychological terms would tell (at best) only half the story and would ignore some of the most effective treatments. Yet the courts continue to distinguish between physical and psychological injury, and to deem the former as more legitimate and therefore more deserving of compensation. Although some courts avoid the spurious distinction between physical and psychological injury and simply classify injuries as compensable or non-compensable based on their severity,[24] the majority continue to prioritize, giving greater credence to physical harm. This creates a challenge for plaintiffs’ attorneys whose clients suffer from injuries that are primarily or exclusively psychological in nature.
What Plaintiffs’ Attorneys Can Do
Attorneys have a few options in navigating their client’s case of psychological injury. The options differ somewhat depending on whether the issue is one of getting the court to recognize the plaintiff’s claim—as in NIED or mental disability—or maximizing the judge or jury’s award for psychological injuries, but the same general principles apply to both situations.
Crossing the legal threshold. The “physical impact” rule that many jurisdictions apply in NIED cases requires proof that the psychological injury resulted from a physical injury caused by the defendant’s negligence. The main issue that can bar these claims from even reaching trial concerns the timing of and the causal link between the psychological injury and the physical harm: For example, did the dysphoric mood state and other depressive symptoms cause the neurochemical imbalance, or vice versa? Research on the biological basis of psychopathology has generally failed to find a simple causal relationship; rather, the physiological and psychological symptoms are co-occurring, reciprocal processes.[25] Thus, plaintiffs’ attorneys can legitimately argue that the physical manifestation of mental illness preceded the psychological manifestation, or was at least simultaneous with it. It is noteworthy that even in jurisdictions that uphold a physical manifestation requirement, some courts have ruled that psychological (e.g., nervousness, anger, fear, bitterness) or psychiatric symptoms (e.g., mental illness, severe traumatic depressive reaction) may be sufficient to fulfill the requirement.[26]
With respect to mental disability, the main goal is to establish the extent to which a plaintiff’s mental illness limits a major life activity. The ability to do this will vary with the type and severity of the disorder, but the figures cited above regarding the prevalence and cost of serious mental illness can help in such an endeavor.
Oral argument. If the case goes to trial, plaintiffs’ attorneys can “physicalize” a plaintiff’s psychological injuries. Instead of (or in addition to) describing a plaintiff as suffering from stress or depression, they can describe the plaintiff’s physiological changes. For example, they could focus on a depressed person’s monoamine deficiency, sleep or appetite disturbance, and fatigue. We know of no research that has compared plaintiffs’ outcomes (in terms of either liability verdicts or damages) as a function of how they present their psychological injury. Yet if laypeople share the court’s double standard—and the longstanding stigma associated with mental illness suggests that they do—then making the disorder seem less mental, and more physical, will help.
Expert testimony. Plaintiffs’ attorneys can use an expert to substantiate the legitimacy and extent of psychological injury, and to link it to physical injury. Physician testimony is routine to substantiate physical injuries. Medical experts testify to the injury’s objective symptomatology, and if applicable, its causal link to the defendant’s actions. Medical experts can also testify about the plaintiff’s subjective experience of the injury and its psychological elements. However, mental health professionals are better suited to do so, and courts have allowed such expert testimony from psychologists,[27] social workers,[28] and counselors.[29]
These mental health professionals can be particularly helpful in establishing the severity of the plaintiff’s injuries and their impact on current functioning. They can buttress clinical impressions and formal diagnoses with results from any of a large number of standardized assessment tests, such as the Beck Depression Inventory, the Minnesota Multiphasic Personality Inventory, and intelligence tests. These instruments are normed and well-established based on repeated testing across multiple samples, allowing for a relative comparison of symptoms. In addition to assessing current functioning, expert evaluations can assess the change from premorbid functioning, which is particularly critical in cases of brain damage. Neuropsychologists are especially suited to performing this task,[30] which can also include findings from brain imaging techniques.[31] Neuropsychological assessment can also address the issue of malingering, which, as noted above, is a major concern when dealing with psychological injuries.[32] Based on these findings, the plaintiff’s attorney can engage a mental health professional to prepare a forensic report that addresses the diagnosis and the causal link between the defendant’s conduct and the psychological injury.
Other witnesses. The expert testimony can be bolstered by additional evidence of psychological injury based on other sources which can demonstrate the plaintiff’s injuries more vividly. Lay witnesses who know the plaintiff, such as family members, friends, or coworkers, can testify to the changes they have noticed in the plaintiff, thereby indicating the extent of the injury. For example, a supervisor could testify to a depressed plaintiff’s increased absence from work and diminished productivity since the injury. Family members could testify to the plaintiff’s increased irritability. Such testimony can be supplemented with demonstrative evidence, such as employee review documents dated before and after the incident, or a day-in-the-life video illustrating the plaintiff’s current level of functioning.[33]
In recent years, society in general has become more cognizant of mental illness, which has in turn become less stigmatized. This development suggests that courts will also gradually become more accepting of psychological injuries. Nonetheless, many courts currently continue to apply a double standard to physical and psychological injuries. To address this double standard, we have outlined a number of steps that plaintiffs’ attorneys can take to maximize the impact of psychological injuries on judges and juries.
Brian H. Bornstein, PhD, MLS [[email protected]] is a Professor of Psychology and Courtesy Professor of Law at the University of Nebraska-Lincoln. His major research interests are in the areas of juror decision making, especially in civil cases; eyewitness testimony; and notions of distributive and procedural justice. You can learn more about Dr. Bornstein and download many of his articles athttp://psych.unl.edu/faculty/faculty.asp?id=13. His latest book, God in the Courtroom: Religion’s Role at Trial (Oxford University Press; co-authored with Monica K. Miller), is due out in mid-2009.
Samantha L. Schwartz, MLS [[email protected]] is a doctoral student in the Law/ Psychology program at the University of Nebraska-Lincoln, where she earned a Masters in Legal Studies. Her major research interests examine how juror decision making differs by jurors’ cultural and religious beliefs. She also has assisted attorneys on trial teams for criminal cases and litigation, and she has worked with trial consultants on change of venue surveys, mock trials, and post-trial juror interviews.
[1] Pleasant Glade v. Schubert, 51 Tex. Sup. Ct. J. 1086 (2008).
[2] The jury apportioned liability as follows: 50% to the senior pastor, 25% to the youth minister, and 25% to the other defendants.
[3] The intermediate appellate court eliminated the damages for lost earning capacity.
[4] Ms. Schubert did allege some minor physical injuries (e.g., scrapes and bruises), but the trial dealt solely with her emotional injuries.
[5] See, generally, P.A. Bell, “The Bell Tolls: Toward Full Tort Recovery for Psychic Injury,” 36 U. Fla. L. Rev. 333 (1984); Brian H. Bornstein, “Physical v. Mental Pain: A Legal Double Standard?” 40(2) APA Monitor 18 (Feb. 2009); G. Perrin & Bruce D. Sales, “Artificial Legal Standards in Mental/emotional Injury Litigation,” 11 Behav. Sci. & Law 193 (1993).
[6] In such cases the psychological injury is often referred to as “parasitic” on the physical injury. See, generally, Edie Greene & Brian H. Bornstein, Determining Damages: The Psychology of Jury Awards (2003).
[7] Id. See also Roselle L. Wissler et al., “Instructing Jurors on General Damages in Personal Injury Cases: Problems and Possibilities,” 6 Psychol. Pub. Pol’y & Law 712 (2000); Neil Vidmar et al., “Jury Awards for Medical Malpractice and Post-verdict Adjustments of Those Awards,” 48 DePaul L. Rev. 265 (1998).
[8] Roselle L. Wissler et al., “Explaining ‘Pain and Suffering’ Awards: The Role of Injury Characteristics and Fault Attributions,” 21 L. & Hum. Behav. 181 (1997) [finding that disability made the largest contribution to mock jurors’ pain-and-suffering awards, followed by mental suffering]; Roselle L. Wissler et al., “Decisionmaking about General Damages: A Comparison of Jurors, Judges, and Lawyers,” 98 Mich. L. Rev. 751 (1999) [finding some variability depending on the respondent sample (i.e., jurors, judges, plaintiffs’ attorneys, defense attorneys), but that in general mental suffering was the second-best predictor of damage awards, after disability];
[9] See, e.g., Payton v. Abbott Labs, 437 N.E.2d 171 (Mass. 1982); Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993).
[10] I.e., “bystander recovery”; see D.J. Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J. Family Law 163 (1976-1977); Restatement (Second) of Torts, §436A.
[11] See, e.g., Restatement [Second] of Torts, §46; Payton v. Abbott Labs, at 175-6 (“Although this court has allowed recovery for emotional distress absent physical harm, it has done so only where the defendant’s conduct was extreme and outrageous, and was either intentional or reckless”).
[12] 42 U.S.C. § 12102(2)(A). The distinction between physical and mental/psychological impairments was maintained in the ADA’s 2008 Amendments.
[13] E.g., W. Wilkinson & L. Frieden, Glass-ceiling issues in employment of people with disabilities. In Peter D. Blanck (ed.), Employment, Disability, and the Americans with Disabilities Act: Issues in Law, Public Policy, and Research (2000) (at 68).
[14] Restatement [Second] of Torts, §46, Comment b.
[15] See, e.g., Valerie P. Hans, Faking It? Citizen Perceptions of Whiplash Injuries, in Brian H. Bornstein et al. (Eds.), Civil Juries and Civil Justice: Psychological & Legal Perspectives (2008), at 131.
[16] This scenario was a central element of the DES class-action litigation. See, e.g., Payton v. Abbott, supra note 9.
[18] According to the U.S. Surgeon General, direct costs of mental health services in 1996 totaled $69.0 billion, which represented 7.3 percent of total health spending. Mental Health: A Report of the Surgeon General, Ch. 2 (available at http://www.surgeongeneral.gov/library/mentalhealth/chapter2/sec2_1.html).
[19] A recent study estimated that lost earnings amounted to nearly $200 billion per year. 165 Amer. J. of Psychiatry; Kathleen Kingsbury, “Tallying Mental Illness’ Costs,” Time, May 9, 2008; available at http://www.time.com/time/health/article/0,8599,1738804,00.html.
[20] See the U.S. Surgeon General’s Report, supra note 18.
[21] To some extent, this interconnectedness is implied by allowing damages for psychological injury that is parasitic on physical injury; but the tendency to view them separately, and as unequally meritorious, ignores the fact that it is not so easy to characterize an injury as purely physical or simply psychological. This latter issue is our concern here.
[22] At least contributing causes, though not necessarily sole causes.
[23] See, generally, Susan Nolen-Hoeksema, Abnormal Psychology (4th ed.) (2007). By stating that these disorders have biological causes, we do not mean to imply that biological factors are solely responsible for their etiology. Rather, just as with physical ailments, there are a host of physical, psychological, and social/environmental contributing factors.
[24] E.g., Rodrigues v. State, 472 P.2d 509 (Haw., 1970).
[25] Nolen-Hoeksema, supra note 23.
[26] Stites v. Sundstrand Health Transfer, Inc., 660 F. Supp. 1516, 1527 (W.D. Mich. 1987); Towns v. Anderson, 579 P.2d 1163, 1164-65 (Colo. 1978); Toms v. McConnell, 207 N.W.2d 140, 146 (Mich. 1973) Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986)
[27]Kinsey v. Kolber, 431 N.E.2d 1316 (1st Dist. Ill. 1982); Westinghouse Elec. Corp. v. Lawrence, 488 So. 2d 623 (Fla. Dist. Ct. App. 1st Dist. 1986); Hidden v. Mutual Life Ins. Co. of N.Y., 217 F.2d 818 (4th Cir. 1954).
[28]Honea v. Prior, 369 S.E.2d 846 (S.C. Ct. App. 1988).
[29]Sabrina W. v. Willman, 540 N.W.2d 364 (Neb. 1995).
[30] See, e.g., W. Drew Gouvier et al., Assessment of Damages II: Neuropsychological Concerns, in R.L. Wiener & B.H. Bornstein (Eds.), Handbook of Trial Consulting (forthcoming).
[31] In re Hawaii Federal Asbestos Cases,734 F. Supp. 1563,1568 (D.Hawaii,1990).
[33] Day-in-the-life videos are potentially prejudicial, so they need to be made with care in order to gain admissibility. See Brian H. Bornstein & Robert J. Nemeth, “Jurors’ Perception of Violence: A Framework for Inquiry,” 4 Aggression & Violent Behav. 77.
We asked two experienced trial consultants to respond to this article on presenting damages for psychological injury. Carol Bauss and Karen Lisko offer their responses.
Brian Bornstein and Samantha Schwartz provide a thorough examination of the double standard in the legal system involving the treatment of psychological and physical injuries. This double standard is also present in how jurors evaluate personal injury claims. One of the greatest obstacles plaintiffs’ personal injury and employment attorneys face today is how to convince jurors that psychological injuries like emotional distress and pain and suffering are worthy of compensation. Emotional distress has become a buzz word for the anti-lawsuit crowd and is synonymous with frivolous lawsuits and out of control damage awards.
Jurors express several objections to compensating emotional distress. First, it is difficult to assign a numerical value to someone’s suffering. For example, how do you translate someone’s depression and sleepless nights into a dollar value? 
Second, everyone has to endure suffering in his or her life. Bad things happen to everyone, suffering is merely a fact of life, and money won’t change that.
Third, some believe that mental distress is a mind-over-matter challenge. As a prospective juror in a recent employment discrimination jury selection explained, “I don’t believe in damages for emotional distress. You have to accept that some stuff happens. If I feel I am having emotional problems I try to get back on track.” According to this view, if you can control your suffering, it isn’t compensable.
Fourth, some jurors won’t accept emotional distress in the absence of medical testimony supporting such a diagnosis or at least demonstrating enough severity to require treatment. However, we know how frequently plaintiffs do not seek counseling for their emotional distress.
As a result of jurors’ reluctance to consider intangible damages, I counsel all of my clients who have potential psychological injuries to cover this topic in voir dire. It is helpful to ask each prospective juror how they feel about the concept of awarding these kinds of damages and whether they have any limits in their mind about the amount for non-economic damages. Jurors’ responses on this topic are very telling, not only for their opinions about damages but also on their receptivity to liability.
I recently worked on a case where the damages were all psychological in nature. The plaintiffs’ home water supply was tainted with toxic chemicals. Although the plaintiffs apparently did not suffer any physical harm, they were seeking compensation for the fear of getting sick in the future. The challenge was to communicate to jurors the plaintiffs’ current state of mind. We learned from mock jury research that one effective technique was to have the plaintiffs walk through a typical day and report the number of times they and their family members had to use water and how all-consuming it was to think: “Is this going to make me sick” every time they turned on the water. The fear of the unknown was a constant burden to them.
Jurors often ask themselves, “What will the money accomplish?” when they are assessing damage awards for mental pain and suffering. Because money can’t take away a loss, jurors look for a way money can make the plaintiff’s life better.
They may have an easier time awarding money that can be earmarked for the plaintiffs to use for therapy or for a vacation to take their mind off their worries or for classes to find a new career and increase their self-sufficiency. Helping jurors identify how a damage award could ease the plaintiff’s pain and suffering is a good goal for the closing argument.
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Karen Lisko, Ph.D. ([email protected]) is a senior litigation consultant with Persuasion Strategies. She is past President of ASTC and current member of the ASTC Foundation Board. She works primarily in civil litigation cases across the nation.
Bornstein and Schwartz do their typical thorough job of pairing important jury research with good strategic thinking. Their comments and recommendations fall squarely on point with approaches that work with jury persuasion and damages. Those comments also call forward two further strategic points that counsel should consider when persuading a fact finder to award damages for psychological injury.
Bornstein and Schwartz note, “An abundance of research shows that physical ailments have psychological consequences and, in some cases, psychological causes.” That logic makes sense to many but demands a fourth element to be its most persuasive. Consider the four-square cycle of monetary good. Harm occurred from the defendant’s negligence (Square One), the plaintiff sustained psychological injury (Square Two), psychological injury can cycle back into heightened or prolonged physical problems (Square Three), and a monetary damages award can break or at least ameliorate this cycle (Square Four). While no known social science study proves this point, the plaintiff’s or an expert witness’ testimony can. More importantly, it must. Mock trial research finds that jurors are more motivated to award money damages when they see good that will come from the award. Without Square Four (the good of the money), the plaintiff’s level of functioning seems hopeless, doing little to motivate an award for psychological recovery. This focus on psychological recovery over psychological damage may seem unfair but seems to be a very real part of many jurors’ evaluative processes.
Bornstein and Schwartz further note that “…if laypeople share the court’s double standard—and the longstanding stigma associated with mental illness suggests that they do—then making the disorder seem less mental, and more physical, will help.” So very true. Privately sponsored mock trial research bears out the fact that laypeople absolutely do express this double standard. In addition, that research shows time and again that jurors hearken back to their own lives when evaluating a plaintiff’s claims. Certain prospective jurors are more likely to act as jury experts in this regard. We have frequently heard plaintiff’s counsel make the mistake of assuming that prospective jurors with experience similar to that of their client will make good plaintiff’s jurors. Quite often, the opposite is true, particularly with two specific types of jurors. First, a juror with a personal or familial history of mental illness will filter this evidence through her own experience. If that sifting process ends with the juror concluding that the plaintiff has had less of a difficult time than the juror/juror’s loved one, this juror could prove dangerous for the plaintiff. Second, a juror with a personal or familial history of physical injuries similar to that of the plaintiff can be especially judgmental toward the plaintiff. In this juror’s view, they “got over it without monetary compensation. So too can the plaintiff.”
This article is an excellent reminder to lawyers representing clients with emotional injuries that we need to take extra steps how we relate those injuries to the jury. Even lawyers sometime fall into accepting the double standard mentioned when damages are investigated, prepared or presented. The suggestion to emphasize the physical effects cannot be repeated often enough. Good work on an important bias existing in society and our legal system.
Gursten is absolutely right, chronic pain is another condition where the physical and psychological elements feed on each other and are very hard to separate. Phantom limb pain would be another good example. Once you start to think about it, the list is virtually endless.
Bornstein and Schwartz’s article on psychological damages provides a sound overview of many of the challenges of presenting a case for psychological damages in the courtroom, including many jurors’ predisposition to doubting even the very existence of such “phantom” or unobservable distress.
One area that was not discussed, but which, in my experience, is a critical one has to do with the role of mental health professionals (MHPs) in such cases. Attorneys, both plaintiff and defense, need to know that there are significant differences among the MHPs they will encounter and rely on to verify or discredit the distress claim. Based on my own experience as a jury consultant and as an expert witness, a few points are worth considering.
All MHPs are not created- or trained- equally: part 1
As the authors note, a variety of non-medical MHPs can be helpful in a case of psychological damages, including psychologists, neuropsychologists, social workers, counselors. Apart from obvious differences in their professional degrees, it is only psychologists and neuropsychologists that are routinely trained in the administration and interpretation of psychological tests. Other disciplines may obtain this training and expertise, but only a very few actually do. The use of well researched, properly normed and validated psychological tests can be a critical part of a damages presentation, as it is a practice most closely linked with traditional science. This tends to play well with the jury. Clinical impression buttressed by such “hard data” can be especially effective.
All MHPs are not created- or trained- equally: part 2
But there is an equally, if not even more important distinction among MHPs, and that’s the difference between treating MHPs and forensic MHPs, regardless of their discipline and the letters after their name. These are differences in mindset, paradigmatic approach to the work, and ultimately the manner in which they can potentially be useful on either side of a damages presentation.
The treating MHP effectively serves at the will or consent of the patient, in this case, the plaintiff. Typically confidentiality is established (absent the MHP’s usual mandated reporting responsibilities), and the agenda for treatment comes from the patient. The treating clinician listens with an ear towards understanding the client’s distress and formulates a plan to address the complaints. Most often, the overwhelming amount (if not all) of the information obtained comes directly from the client. The aims are to help – sometimes with feedback, sometimes with insight and for some clinicians, even with directive suggestions, more commonly know as advice. The treating clinician generally takes an accepting approach, and seeks to build a working alliance with the client.
For the forensic MHP, the client is not the plaintiff. Rather it is either an attorney or the court. The experienced forensic MHP will inform the plaintiff that confidentiality does not necessarily pertain in typical ways, and that it’s possible that whatever happens in the forensic assessment could potentially come out in court. What’s more, while the MHP is certainly “all ears” in terms of listening to the client, the process is more of an intrusive, directed search for data. The forensic MHP is mandated to gather information from multiple sources, as he or she tries to generate various hypotheses, which are then substantiated or disproved. The entire exercise revolves around specific psycho-legal questions, which must involve assessment of areas such as potential impression management, malingering, and reliability of reports from the various data sources. As you can tell, the tone is very different from the treating clinician, not to mention the methodology and the goals. The forensic MHP is not looking to improve the client’s life or alleviate his or her symptoms. Rather, the forensic MHP is on a fact-finding mission, hopefully, without investment in what he or she uncovers.
And, so what?
Both “varieties” of MHP have their assets and liabilities in terms of the damages claim. One important thing for the attorney to keep in mind is that there are limits to what these professionals can say, depending on whether they are treating or forensic MHPs. For example, a treating MHP would have a hard time backing up a statement about what is the “truth” about a plaintiff’s complaints, if they have not obtained confirmatory evidence from independent sources. A forensic MHP could not testify as to how the plaintiff appeared outside of the typically limited timeframe of a forensic assessment. A few additional things to consider:
Treating MHPs can sometimes be lured into being their client’s advocate, and believe that the damages award will improve the plaintiff’s mental health. This loss of neutrality provides a field day for the defense on cross-examination.
The forensic MHP can sometimes come across as cold or uncaring if they are not an effective witness. This can undermine their testimony in the eyes of the jury.
Treating MHPs are often uncomfortable when asked questions that demand a “yes or no” answer on the witness stand. Their respect as a professional can then erode in an instant.
If the forensic MHP is not a skilled teacher on the witness stand, otherwise credible testimony will be dismissed as “psycho-babble.”
The answer?
Attorneys would do well to get educated on these issues, especially in light of the challenges noted in the article. Possibilities include hiring a non-testifying forensic MHP or an experienced jury consultant under attorney-client work product, to distill and assess the pros and cons of the complex data inherent in these cases.
Bob Kaufman, PhD, ABPP is a board certified forensic psychologist and ASTC member who works in private practice and also as a senior trial consultant for BonoraD'Andrea, LLC in San Francisco.