Today, I wanted to share an article that I received from Dr. John Zervopoulos, a board certified forensic psychologist and lawyer with Psychology Law Partners.  We often hire Dr. Z to consult with us when we have mental health issues involved in a child custody case.  Dr. Z will help navigate through the mental health issues and steer the attorney in preparing for litigation on those issues.  Because he is a lawyer and a psychologist, he understands the litigation process and how mental health evidence affects a case, especially a child custody case.

So, here’s what Dr. Z has to say about the DSM-V coming out in May (read more about the DSM-V at its website):

WILL DSM-5 CHANGE EXPERT TESTIMONY?

Bipolar Disorder. Narcissistic and Histrionic Personality Disorders. These diagnoses from DSM-IV-TR quickly catch a judge’s or jury’s ear—and raise concerns. DSM-5, the next revision, is scheduled to be published in May. Revisions portend changes, and DSM-5 promises them—adding diagnoses, recasting some, dropping others. For example, Narcissistic Personality Disorder is expected to remain; Histrionic Personality Disorder won’t make the cut. Controversy among mental health professionals abounds.

Nevertheless, too many mental health experts will continue to misuse DSM diagnoses in the same way—as broad-brush, professional “stamps of approval” that substitute for clear, trustworthy testimony. The most common misuse occurs when an expert attaches diagnostic criteria to cherry-picked events from a litigant’s life or to selected test responses of the litigant.

Three foundational DSM-IV principles sure to survive in DSM-5 offer useful starting points for questions to experts who insist on basing their testimony primarily on diagnoses rather than on relevant documented behaviors tied to parenting demands or other capacities at issue in the case:

• The DSM-IV-TR was developed for “clinical, research, and educational purposes”—not for legal purposes. (Introduction, at xxiii).

• The DSM-IV-TR requires that mental health professionals exercise clinical judgment when interpreting and counting criteria that comprise a diagnosis. Diagnostic criteria “are meant to serve as guidelines . . . not meant to be used in a cookbook fashion.” (Introduction, at xxxii).

• The DSM-IV-TR cautions about using diagnoses in court, noting that “there are significant risks that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between questions of ultimate concern to the law and the information contained in clinical diagnoses.” Further, “It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.” (Introduction, at xxxii-xxxiii).

Whether DSM-IV or DSM-5, the basics of expert testimony still apply: “It is not so simply because an expert says it is so.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W. 713, 726 (Tex. 1998). If the expert invokes a DSM diagnosis, challenge the expert to specify why the diagnosis is relevant, the basis for the diagnosis, and how the diagnosis compromises the litigant’s functioning in matters of concern to the court.

Reference: John A. Zervopoulos, How to Examine Mental Health Experts 155-162 (2013).
 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.