Perhaps most significantly, the MPAC recommends that depositions of experts be allowed. In setting forth this proposal, Sharon Townsend, Supreme Court justice and chair of the MPAC, stated:
The MPAC proposal would also create a uniform rule which would allow parties to depose experts in matrimonial matters, subject to the discretion of the Court after considering such factors as it deems "fair, relevant, and reasonable," and the cost and time involved. If the testimony is offered with respect to access, child custody, visitation or abuse, the party seeking the pretrial deposition or disclosure must make an application to the Court, and the Court shall consider, in addition to the other factors named above, the effect of such deposition upon a Court appointed expert's availability in future cases. To the extent that discovery of experts in matrimonial actions is properly controlled as provided in the proposed rule, MPAC believes it assures that issues are vetted prior to trial.3
In this submission, Townsend, vice-dean, Family & Matrimonial Law, New York State Judicial Institute, correctly identified a core value that has received too little attention in past discussions of these issues, namely the value of pretrial "vetting." The custody judge must make what is arguably one of the most difficult and important decisions any judge is ever called upon to render. It is difficult because of the innately subjective and value-driven nature of the "best interests" concept which is the ultimate polestar in these cases.
It is difficult because, unlike most judicial undertakings which require reconstruction of historical facts, the custody judge is called upon to make a predictive decision, to wit: what custodial arrangement will best serve the child going forward in time. The decision is critically important because it deeply impacts the future trajectory of the child's life as well as that of the parents. Clearly, in such a challenging crucible every effort should be made to ensure the reliability and validity, i.e., the trustworthiness, of the evidence placed before the court.
The systemic guarantor of evidentiary trustworthiness lies in effective cross-examination. Comprehensive and thorough pretrial disclosure is the indispensable prerequisite to an effective cross-examination. Requiring an attorney to conduct a cross-examination without a full opportunity to carefully review every element of the expert's methods, data, research bases, and opinions well in advance of trial is akin to requiring a neurosurgeon to perform brain surgery while wearing a blindfold. In both instances the outcome will be as bleak as it is predictable.
Liberal pretrial disclosure, including the right to depose all experts, both court-appointed and retained, not only enhances the likelihood that a clear and comprehensive presentation can be made to the court; it carries other benefits as well. This writer has had occasion to depose forensic witnesses in a jurisdiction where that procedure is permitted. The opportunity to do so allows counsel to narrow issues and to chart a more targeted trial trajectory that will both present a sharper and more reliable view of the evidence and conserve precious judicial time. It also informs the parties and counsel as to both the strengths and weaknesses of their respective positions. This enhanced clarity will often lead to settlement rather than to a costly and risky roll of the dice at trial.
The MPAC proposals would usher in long, sorely needed reforms. They have much to recommend them. Yet there are a few concerns that the judicial administration may wish to consider.
One problem in the MPAC proposal is the requirement that attorneys obtain specific prior permission before sharing the report with mental health professionals they may retain either as potential expert witnesses or as non-testimonial trial consultants. Unless the request for such permission is allowed to be made ex parte, each such request may yield to the opposition information that it is not entitled to know. Knowing the identities of the witnesses and consultants being considered, some of whom may ultimately never be engaged, can give the adversary important insight into the litigation strategies being developed. Even the ex parte approach would not be free of problems. Because the custody judge sits as the trier of fact he or she ought not to have the kind of strategic preview such requests may afford.
Frankly, such restrictions are unnecessary. Attorneys can generally be trusted to operate within the rules. Likewise, mental health professionals can generally be trusted to abide by the terms of confidentiality. As long as the attorney obtains an affidavit of confidentiality from all members of the litigation team, whether they be forensic experts or outside counselthat should be sufficient. In the occasional and odd case where improper dissemination of the report may occur there are ample sanctions available to punish the transgressor.
Beyond the Forensic Report
Beyond the issue of access to the report lies the critical problem of disclosure of the expert's underlying data, i.e., the complete file of the evaluator. In 2006, the Miller Commission Report addressed that issue:
The forensic report should be open to all of the trial procedures which allow a litigant and his or her counsel to test the underlying basis for the report. In that regard, all underlying notes and test data, including raw test material, should be made available in discovery to counsel for the litigants, attorney for the child(ren), or a professional designated by counsel to review the material. Upon presentation of the forensic's report to the court and counsel, either party, or attorney for the child(ren), should be permitted to serve a notice, pursuant to Article 31 of the CPLR, on the forensic expert to produce the underlying notes and test data. The forensic expert should comply with the notice subject to an application to the court by either party or attorney for the child(ren) to limit or otherwise condition the disclosure.4
As previously discussed,5 each scrap of data in the forensic file is potentially revelatory. A given notation may hold the key to demonstrating that the principles, methods, or research used to generate conclusions were unreliable or improperly applied. Any given document may reveal that the expert's conclusion rests upon flawed information. Even an inadvertent marginal notation may indicate that bias has impinged on the expert's conclusions.6