Expert Witness – Psychologist
The use of a psychologist in elder financial abuse cases is often a necessary tool to prove that the elder was mentally incapacitated or the victim of undue influence when the wrongful act occurred. A psychologist is not a medical doctor, but has the education, training, skill and experience to provide testimony to aid the jury and judge.
Generally, an expert is only allowed to testify if the issue is not familiar to the average person’s own experience or education, and the psychologist can supply his or her expertise to explain what otherwise might be a complicated matter. For example, a juror might benefit -in understanding the evidence – if an expert witness is called to explain what “dementia” is, its different stages, and how the elder was manipulated, coerced or unduly influenced when the defendant took advantage.
The psychologist’s role is a “forensic” one. They must go back in time and piece together the facts and circumstances in order to render an opinion as to whether the elder was susceptible to undue influence - at the time the alleged abuse took place. This is not an easy task. The victim may now be deceased, or his or her mental capacity may have deteriorated, since the time of the wrongful act, that they can no longer communicate or remember any of the facts.
The selection of a psychologist as an expert witness is critical to the success of a case. The elder’s attorney must work extensively with the psychologist to make certain that s/he has the right qualifications and sufficient information to arrive at an opinion and a basis for that opinion. In that regard, the attorney must supply the expert witness with as much documentation as possible, and also arrange for the expert to interview all witnesses.
The attorney’s documentation will include deposition transcripts of all persons who have been deposed, copies of all interrogatories (written questions that must be answered under oath), copies of all of the defendant’s records (obtained through a document production demand), and all medical records. It’s imperative that the psychologist review all of these in order to fully understand each piece of evidence that might be relevant to rendering a truthful and compelling opinion.
The psychologist must then personally speak with all potential witnesses that might be able to shed additional light on the victim’s mental capacity at the time the wrongful act was committed. This takes time and a commitment. But family members and close friends will likely be able to offer a wealth of information on the elder’s mental condition. Those that have known the elder for many years can probably recall how the victim felt about his or her assets, how they spent money, how they saved money. If the defendant claims that the elder simply wanted to give the defendant title to the elder’s house, along with a $100,000 gift, then the testimony of family members and close friends can testify to the truth: That the victim always saved money, never spent lavishly, and never gave any money or property away.
They may also be able to provide the psychologist with information about the defendant and how the elder became more and more reclusive and isolated once the defendant became involved in the elder’s life.
When all of this has been done, it’s now time for the elder’s lawyer and the psychologist to prepare for expert testimony. When the psychologist takes the witness stand, he will perform two things: (1) Give his opinion, and (2) Explain the basis for the opinion.
For example, the ultimate opinion may be that the elder was severely susceptible to undue influence at the time of the alleged wrongdoing. Whether the expert is permitted to testify that the elder was, in fact, unduly influenced (as opposed to being “susceptible”), is a decision the judge might have to make before the question is asked of the expert. Testifying that the elder was, in fact, unduly influenced is a legal conclusion. Defense counsel will want only the jury to determine that fact.
The basis for that opinion will be the psychologist’s review of all of the documents and the testimony of the plaintiff’s witnesses (family and close friends) at trial.
How much weight the jury gives to the expert’s testimony is entirely up the the jury. However, in certain cases where fraud or undue influence is difficult to prove, the use of a qualified expert witness – psychologist – can be very helpful.
If you or someone you know needs assistance with elder or senior law issues, then pick up the phone and give us a call. The initial telephone consultation is always free. We’re here to help.
Copyright. 2007 – 2012. Law Office of George F. Dickerman. All rights reserved.