Expert Witness Services:  Case Review Within Attorney-Client Privilege

A mental health professional who performs a case or work product review of an existing child custody evaluation report is considered an expert witness. An expert witness is a professional with specialized expertise and training who can assist the court in understanding the case.  It is not uncommon for a parent who is not favored in a custody evaluation to hire their own expert in an attempt to refute the recommendations in the report.  Reviewers should not, however, be retained to put forth a particular point of view; this is part of the advocacy of the attorney. 

Hiring an expert to review an unfavorable report does not guarantee he will agree with the point of view of the party who hired him.  An ethical reviewer will review the case and provide feedback and advice based upon an objective opinion.  Reviewers review the evaluation report and any other records or data (such as the evaluator’s forensic case file) that are available.  Audio or video recordings or contemporaneously taken notes may be considered.   An expert hired by one parent to review a child custody evaluation cannot offer his own recommendations regarding custody, residential parent, or parenting time.  This can only be done by an evaluator who has had the opportunity to evaluate all individuals involved in a custody dispute.

An ethical review identifies both strengths and weaknesses in the report, emphasizing the relevance and reliability of both the procedures used as well as the interpretations of the data collected. An ethical review can provide feedback on the evaluation process as outlined in the report, including the selection of assessment instruments and procedures.   The review can assess the degree that the data are or are not supported by the social science research relevant to issues addressed.  In addition, an ethical review can provide commentary on the interpretation of assessment data as well as the degree that opinions offered by the evaluator are or are not supported by the data presented in the report. 

In most instances, the results of the review are protected by attorney-client privilege.  Review results may be presented to the attorney for the requesting party either orally or in written form.  This allows the attorney, who unlike the reviewer is an advocate for the requesting party, to make decisions about how the review may or may not fit within their litigation or negotiation strategy. 

2201 SW 29th Street
Topeka, KS 66611
Phone: (785) 267-0025
Fax:     (785) 266-6546
Bud Dale, Ph.D., J.D., Licensed Psychologist