When a controversial test is being used against their client, attorneys may weigh the following questions:
- Or, should I let the test come in as evidence, and educate the jury about weaknesses in the underlying science?
Increasingly, attorneys are choosing the second option when the science underlying a test is weak. They are openly critiquing the test and its findings, and allowing jurors to form their own conclusions. Yesterday's Lawyers USA features an article on how plaintiffs' attorneys are "turning the tables" on the Fake Bad Scale:
Although plaintiffs' attorneys are unanimous in despising the Fake Bad Scale, there is a mini-debate about whether it is more effective to exclude the test before trial or allow it in and discredit it while cross-examining the defense expert.The article features the case of Sarah Jenkins, a medical receptionist who suffered tissue injuries and cognitive problems after her pick-up truck was hit by a delivery truck. She scored in the faking range on the Fake Bad Scale.
"It's a tough call, frankly," said Dorothy Clay Sims, a founding partner of Sims, McCarty, Amat & Stakenborg in Ocala, Fla., who has won three hearings over excluding the test.
"Frye and Daubert hearings are tough, but courts don't seem to like this test, so it's difficult to give up a hearing that you have a good chance of winning," she said. "On the other hand, once the Fake Bad Scale is demystified for the jury, and you pierce through it, they look at the defense doctor and say 'Oh, come on.' "
Rather than fighting to exclude the test, experienced trial attorney Dean Heiling made it a centerpiece. He cross-examined the defense expert at length about the test, and through his own expert exposed the controversy in the field about the test's validity.
Most interestingly, he put his client on the stand in rebuttal, and had her go through each test item and her answer with the jury.
Jurors deliberated only three hours before awarding a verdict of $225,749.
The lesson to forensic psychologists: Know your tests, and know their weaknesses.
The full story, by Sylvia Hsieh, is here, although it is only available to subscribers. For more on the controversy over the scale, see my previous post here.
Hat tip: Ken Pope