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Defense attorneys may be unaware of the value of psychological
expertise in defending or mitigating claims of emotional damage, especially claims
resulting from alleged, or even well documented, sexual harassment in the workplace. These
claims are often based on highly emotional scenarios of sexual abuse—even sexual
assault—and can be very persuasive in convincing juries to award large sums.
However, as reprehensible as the behavior in question may have been,
the plaintiff still must demonstrate both that the alleged events occurred and that harm
has ensued. For the plaintiff’s attorney, the hope is often that a sense of harm is
so strongly implied by the factual events that the jury will presume that emotional damage
inevitably occurred. For the defense, it is often possible objectively to show that one of
the following alternative scenarios is the case:
- No measurable harm resulted
- The harm that occurred was short lived and has since resolved
- The apparent psychological damage which the plaintiff manifests is
actually the result of a prior, chronic condition that was unaffected by the events at
issue in the current lawsuit.
- Harm may or may not be present, but the plaintiff is malingering,
which raises overall doubts about credibility and honesty.
- Because of prior psychological deficits, the plaintiff is not a
credible witness.
The defense can organize one of these arguments by engaging the
services of a forensic psychologist. This expert will use psychological tests to determine
whether one of the above mitigating scenarios has occurred. Further, by selecting the
proper psychological tests, the expert can often free himself or herself from impeachment
arguments based on bias, i.e., that he or she is merely a hired gun.
To escape such claims of bias, the skilled expert will use a truly
objective psychological test and will have it scored by a computer scoring service. These
scoring services automatically produce a lengthy narrative report, and this is done with
no input of any kind by the expert or anyone else connected to the defense of the case.
The expert psychologist can truthfully testify that he or she had no hand in scoring or
interpreting the report and that the computer program which did so had, obviously, no
interest in the outcome of the case. In many cases, verbatim quotations from the
computer-generated report can be read to the jury to counter emotionally laden appeals
that the plaintiff has experienced devastating harm, is credible, or was emotionally fully
intact prior to the alleged events.
By far the most popular, and most scientifically studied, of these
objective psychological tests is the MMPI-2 (Minnesota Multiphasic Personality Inventory,
Revision 2). This test has been continuously developed since World War II and has been the
focus of approximately 10,000 scientific investigations. A skilled psychologist can use
this measure to assess for:
- Malingering (faking bad)
- Denial (faking good)
- Personality disorders (chronic conditions which are not induced by
traumas of adult life such as workplace sexual harassment)
- Pre-existing conditions that are unrelated to the facts of the case
(e.g., chronic alcoholism)
- Lack of emotional harm.
- Lack of credibility as a witness.
The MMPI-2 consists of 567 questions which are answered either
"true" or "false" by the test-taker. These questions serve as the
basis for several "validity scales," which measure the test-taker’s
approach to the test in terms of honesty or attempts to create a certain impression, and a
large number of clinical scales, which measure actual psychopathology. Validity scales
also determine that the test-taker actually responded to the content of the items, rather
than answering randomly or using some "response-set," such as always saying
‘true" or "false." The clinical scales can identify nearly any
clinical condition, ranging from such subtle issues as health concerns to debilitating
conditions such as schizophrenia.
The MMPI-2 is only one of many objective psychological tests which
are available to the psychological expert. Others include specific measures of
malingering, or measures that are well suited to evaluating personality disorders when
such conditions are suspected.
Defense attorneys too often overlook this strategy of systematically
and scientifically assessing the validity of the plaintiffs’ claims of harm. Such
claims that workplace sexual harassment "ruined my life, caused me to fear men, gave
me nightmares, made me unemployable, destroyed my marriage, and drove me to drink,"
for example, often fail to withstand scientific scrutiny. Unfortunately, unless a skilled
psychologist is retained, there may be no application of scientific scrutiny, and these
claims may go unchallenged by a jury.
By: Martin H. Williams, Ph.D. Email: mw@drmwilliams.com
