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Dr. Kiernan has qualified as a forensic expert in neuropsychology since 1975, and he has conducted hundreds of forensic evaluations for both plaintiff and defense. During this time, he has accumulated a depth of experience regarding the particular needs of both sides of a case. He has avoided facile defense strategies like malingering in favor of a more comprehensive, plaintiff-based evaluation. He believes that the cooperation of the plaintiff in the evaluation is essential even when he is working for the defense. Clinician-client rapport allows for the most thorough and complete evaluation. Experts who formulate their opinions from a comprehensive base are difficult to challenge in cross-examination and more credible to a jury.

The following text is exerted from my writing about forensic work.

The forensic dialogue:
Both plaintiff and defense attorneys need to know the strengths and weaknesses of their cases in order to serve their clients well. Their experts provide that information, and the expert-attorney dialogue is the conduit for that communication. Attorneys need experts they can trust because they rely upon an ongoing flow of information and guidance. Attorneys are guided by what their experts tell them even when it is not what they want to hear. Attorneys can’t oppose their experts’ opinions without undermining their own case.

I evaluated a woman who sustained a head injury when she was struck by a car while walking in a shopping center parking lot. She had been disabled and unable to return to work for two years at the time of my testing. Her test results reflected the presence of substantial interfering anxiety, but they also demonstrated continuing high level intellectual ability. I was the plaintiff’s expert, and I called her attorney after the testing session to tell him about the weakness of my findings regarding a brain injury. This plaintiff was quite competent apart from her distress, and he needed to understand the limitations of his case.

Neuropsychology experts, whether for plaintiff or defense, must formulate their opinions independently of the attorneys who hire them. Experts who retain their independence minimize the influence of partisan concerns and avoid being wedded to a biased opinion. They will not be able to formulate a comprehensive opinion or provide meaningful guidance once they have lost their grounding. Attorneys who dictate their cases have themselves as experts as they proceed blindly toward trial. Neuropsychology experts, even though they formulate their opinions independently, need to maintain an open dialogue with the attorney.

It is important for experts to communicate their evolving opinions as they work through a case. After they review the medical and personal records, they can share their preliminary impressions. As they formulate questions and establish a point of view, the attorney needs to know their evolving perspective. This feedback is especially important if they discover problems or discrepancies that alter their thinking. An ongoing dialogue informs the attorney about their developing point of view.

Experts should discuss their test results with the attorney following the evaluation as soon as they formulate their impressions. This is especially critical when the results are unfavorable because the attorney needs to decide how to proceed. A plaintiff’s attorney might withdraw from a case if there is no chance of an early settlement. A defense attorney might reevaluate a plaintiff’s case and reopen discussions with the insurance adjuster.

Experts have an obligation to frankly air any concerns that arise. Test results that are generally favorable to an attorney’s case may have complicating features that are less desirable. Only the expert can identify these complications and investigate their unfavorable features. It may be necessary to request additional records or carry out further testing in order to gain the needed clarity. Experts need to keep the attorney informed about their concerns as they move forward in their work.

It is not always possible to maintain the needed communications. I once tried to maintain a dialogue with a plaintiff’s attorney who I didn’t know, but he proved unwilling to engage in a discussion with me throughout my work on his case. I was immediately concerned about the case after reviewing the records because the plaintiff had written highly articulate, carefully reasoned letters arguing his case of minor head injury and cognitive disability. I told the attorney that these letters undermined the credibility of his client’s claim.

The attorney assured me he would talk to his client. He wanted me to continue my work and proceed with the evaluation as scheduled. I called him again after I completed the testing, scored the results and formulated my opinions. Although the test results were disappointing for his case because they didn’t suggest brain dysfunction, he asked me to go ahead with my report. I completed his report, but I never heard from him again.

I later learned that a videotape of my deposition was played in court by the defense. The attorney who originally hired me had his client evaluated by a second expert who gave him the opinion he wanted. Although he built his case around the opinions of his new expert, his house was divided against itself. He never engaged me in a dialogue about the realities of his case despite my efforts. He proceeded to court with a weak case against which I, his former expert, had established a reasonable line of defense, and he lost.

A similar case with a plaintiff’s attorney I knew well had a very different outcome. His client’s claim of disability seemed questionable to me once I completed my evaluation. This plaintiff was much too invested in making his case, he had never been very high functioning, and the test results did not strongly indicate a brain injury. I discussed my concerns with this attorney at length, and he asked me to wait to do a report. He allowed his case to develop slowly over time, and he eventually discovered that his client had lied about both his disability and his prior history. He was then able to walk away from this case without investing additional time and money.

Experts shouldn’t surprise the attorney who hires them with what they say in their report. They should have already expressed their concerns, outlined their impressions and discussed any unfavorable findings, and the report should be consistent with these prior conversations. Even after the report is completed, the dialogue can continue regarding additional reports, opinions and depositions. It can be particularly useful to include the plaintiff in this process through repeat evaluations. Plaintiffs’ attorneys can use repeat evaluations to strengthen their expert’s ability to speak with authority.

Timing:The timing of an expert’s work for either plaintiff or defense evolves out of the ongoing dialogue. Plaintiff’s attorneys usually benefit from an early evaluation before their clients have reached maximum recovery when it is easier to observe and evaluate the functional disability. Defense attorneys need the guidance that comes from a thorough review of the medical records so they can judge the extent of the claim against them. The timing of a defense evaluation is less urgent, and attorneys may prefer to wait until later in the recovery process.

Decisions about timing are usually dictated by the needs of forensic case management, and these concerns have little to do with the experts’ thinking or formulation. I might be asked to complete my report as soon as possible. If my test findings complicate the case, the attorney might want to forego a report indefinitely. Plaintiffs’ attorneys might keep me in a consulting capacity, not as a named expert, and try to settle quickly or withdraw from the case altogether. Plaintiff’s attorneys might even hold off on a favorable report rather than reveal too much too soon. Defense attorneys can only delay a report as long as the plaintiff’s attorney fails to demand it, but even a short delay might allow them to quickly settle an unfavorable case.

There are different constraints on the timing of the plaintiff and defense evaluations because plaintiff’s attorneys have unlimited access to their clients. They can obtain an early evaluation and as many subsequent assessments as they want. They can chart the process of their client’s recovery over two or three years and thereby build a more powerful and compelling case.

Defense attorneys typically get only one chance at an evaluation, and they often delay this assessment until the plaintiff’s case has been largely completed. A defense evaluation is essential, however, even when there is uncontested liability and a well-documented brain injury. The defense needs an expert who can address both the plaintiff’s claims and the opposing expert’s opinions within a comprehensive formulation.

I was once contacted at the last minute on two separate cases, one for a plaintiff’s attorney and one for the defense. Both cases were ready to go to court, and it was too late for me to participate as a named expert. In the defense case, I only had time to review and critique the report of the plaintiff’s neuropsychologist. This poorly done evaluation was filled with insubstantial opinions and self-serving inferences. I expressed my outrage over this report to the defense attorney as she stood outside the courtroom during a break in jury selection. She used my critique to raise serious questions with the plaintiff’s attorney and secure the immediate acceptance of a settlement that had been previously offered and rejected prior to going to court.

In the plaintiff case, I had the opportunity to conduct an evaluation during the week before trial. I quickly authored a comprehensive report that included a critique of the defense experts. Although this took place prior to jury selection, it was too late to redefine the case before going to court. This attorney might have been able to assure her client a reasonable settlement if she had more clearly defined the case. She was left with the unhappy prospect of trying to establish the case through cross-examination, and this proved ultimately unsuccessful.

A comprehensive critique of a plaintiff’s case can be obtained at any time. It may even be possible to establish it through careful cross-examination in court. Even a last minute effort in the defense case above was invaluable in quickly settling an over-inflated plaintiff claim. Plaintiff’s attorneys, however, must establish their cases well in advance of trial, and they can’t accomplish this solely through a convincing line of argument. A credible and comprehensive case must be presented to the jury through a series of experts who are able to speak knowledgeably about the plaintiff’s disability. In minor head injury cases, the neuropsychologist is invariably the one who must develop the needed comprehensive formulation.
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