How to Handle Tough Professional Forensic ExperiencesApr 03, 2023
Breathe. No really. It’s not a cliché. Literally, take a breath in, and loudly let it out. Maybe even scream it out. Cry it out. You’re not a robot. You’re a human being, with feelings. Even though we’re told it’s part of the job and we have thick skin, sometimes things hurt. Most of the work we do means that 99% of the time you’re treated like a professional, even when you disagree, so most of us aren’t used to slinging mud or being cut down at the knees either by dirty tricks, or by some legitimate failing where we just didn’t know what we didn’t know. And those are two different kinds of experiences with two different learning outcomes, and we can talk about them separately.
But let’s talk about the first one first. Those really bad experiences, the ones where you were treated disrespectfully or cut down or mocked or treated unfairly or taken out of context or mischaracterized or misquoted or bullied or boxed into a corner or belittled or any of the other dirty tricks…those are the ones that can cause you to question your worth and your expertise.
Don’t let it.
I know. So hard. But, really, take a breath. Imagine the toxicity leaving your body. Remember that the Courtroom is a theater and sometimes you thought you were a player but really you were a prop. There are forces bigger than you at work sometimes, bigger than your role or your job or anything that has to do with you in any way. Sometimes you come up against that judge’s pending divorce or that defense attorney’s personality disorder or that county attorney’s hangover or sometimes it’s just their righteous anger at a system that buried their last client or any other number of things that you don’t get to know about why they’re coming at you as they are. Sometimes it’s because you’re a woman, or a person of color, and we’re not supposed to say that or talk about it but it’s still true. People are just flat out less likely to come at me like this as a White guy.
Layered on top of all of this are imperfect, petty humans. That’s not a dig at lawyers and judges. We’re all imperfect and petty. But the imperfect and petty humans working in Court systems, the ones most responsible for our experiences in testimony, they also often don’t understand our job. Again, not a dig. We don’t understand theirs, either. It’s just a fact. They don’t always get us. You can see it in their questions. They’re way off the mark sometimes. And you’re so diligent, you’re doing your best to answer a question that might as well have been in French because it’s so far outside the scope of what we’re talking about or the relevance to your opinion. But your job is deference, and sometimes that means you’re left on the chopping block and at the mercy of their whims. And mostly, this is not about you. Even though it feels so, so personal. Maybe they even made it personal. Ok, it is personal. It’s your name and your experience and your heart and sometimes, an experience like this leaves you wondering why you’re working so hard for a system that doesn’t care about you. That’s personal. I know.
But also, it isn’t. It’s not a reflection of you. Hear me. It’s not a reflection of your worth. Sorry, I know we’re not supposed to be those feeling psychologists. But at risk of being thrown out of the stoic forensic club, I’ll say again: Remember your worth. Cling to it, and don’t let go. We need you to hold strong. Backpedal, duck, and cover your head. Take your licks. But come back. Come back to your colleagues, and we’ll remind you that what we do is not well understood and that you worked your ass off to get here and you deserve to be here and you know what you’re talking about. Your opinion was well grounded. You weren’t wrong, even when you were made to feel small. Whatever disrespect was lobbied at you to make you feel that way, don’t let it define you.
The biggest place I see this come up is around that adage that everything you did was insignificant and everything you didn’t do was glaring. You didn’t get every record? You didn’t talk to every collateral? You didn’t give this test? Or you gave this one instead of this one? How could you miss that? Why did you do that? Why didn’t you do this? It’s a trap because first, no one, regardless of resources, can do all the things all the time. But second, even if we could, no one should. No one wants to read a 50 page competency report. If you wrote that report, then they’d come after you for its length.
And more to the point, we live in the real world, where resources matter. We have deadlines and sometimes we do the best we can with what we had. But we’re limited in saying that on the stand. They know that. It’s part of the legal maneuvering. They’re always going to press us into the crack between what our books say is best practice, and what practice says is best practice. Nope, sorry, they’re not the same. One is the shiny new sneaker and the other is the one you wear every day, and we’re all supposed to pretend they’re always the same but they aren’t. Practicality and the economy and the Court’s deadline and your other assignments say otherwise. And it’s a trap because you can’t say “yeah I didn’t have time for that.” You can’t say that sometimes our bar is “good enough.” “Far enough.” But that’s what it is. We’re trained to go as far as we need to render an opinion, and no farther. Unless we've got the full blessing of the retaining party that whatever it takes is what they’ll pay. This is the dirty secret that we’re not supposed to say but everyone knows is true. This is the part of this writing that maybe I’ll have one day thrown back at me on cross, to impeach me. “Doctor, did you really write that your bar for evaluations sometimes is ‘good enough?’” Was the evaluation of my client also just good enough?” “I’m glad you got to ‘good enough’ while his life hangs in the balance.” I can just see the theatrics lobbed at future me. It’s going to be a bad day and I’ll need you all to pick me up and dust me off. But it’s also the truth.
The best inoculation I’ve tried to have to this kind of trickery is to do my best to stand tall in the middle of a windstorm. To hold my ground in the least combative way possible. Is that best practice? Well, it depends what you mean by best practice. If you mean what is written in a textbook, possibly not. If you mean how I can maintain my integrity and come back again tomorrow then, yes, I believe I passed that mark.
But it’s always going to be easier to come up with those things afterwards. It’s like avoiding a torpedo but only after you’ve already seen its trajectory. And often it’s too late by then, because you’re caught off guard and spluttering and literally drowning and on fire all at once, and all you can really do then is pick up the burned pieces and limp away. It would be nice if they did it more professionally but the thing is that we’re playing in an arena where sometimes the dirtiest players are the most rewarded. Not always. But sometimes you’re going to get caught in their backdraft, and if there’s something I wish I could go back and say to the spluttering, shaken up me, it’s that holding my ground is necessary to withstand the torpedoes. Hold steady, brace, and remember that it’s not always about you.
Now there’s a second kind of difficult professional experience, and that’s the one where you legitimately messed up. Hey, we’ve all messed up. I know, I’m not supposed to admit that either. Sorry. It’s both a wonderful gift and a terrible curse that I’ve never been able to be quiet about the things we all know and don’t say. So let’s just agree it’s a fact that lawyers mess up and people mess up and we all mess up and you mess up and I mess up.
Now, ideally it happens in a low intensity environment; an opinion that was ultimately right, but on a shaky few procedural steps. A report that wasn’t contested but maybe got you an unkind phone call or snarky email. I just got one last week. They were confused that I said capacities were “impaired” instead of “lacked.” Yep, that’s true. I was lucky they didn’t haul me into Court and belittle my language choice. They could have. Instead, my pride was a little wounded but I apologized and agreed it was unclear, and I immediately cleaned that up for the future. But the problem is, we work in a huge vacuum where the most expedient (and sometimes only) mechanism for feedback is often testimony. If the only reports they read closely are the ones they don’t agree with then it’s always going cast a bright, glaring light on our weak points, learning edges, or missteps. And in an adversarial environment, we don’t always know whether the feedback we’re getting is because we truly messed up, or because of legal maneuvering.
I can think of three reports, as I write this, that I know in my bones I got wrong. They were critical learning experiences for me. I tracked the proceedings in one way or another and I’m happy to say that the system corrected me on all three. One was about not taking defendant reporting at face value. One was about more thoroughly interrogating low IQ. The third was a scoring error. They were unquestionably and completely my fault, and largely due to a lack of experience at that time. I can certainly still make errors, but just the practice and repetition of seeing so many kinds of cases over the years has honed some of these growth edges duller, over time. Early on, you’re going to make mistakes and that’s terrifying, but inevitable, so you might as well lean into them.
Those are Mistakes with a capital “M.” Important learning experiences that still haunt me sometimes, about whether my getting it wrong could have messed up someone’s life. They haunt me maybe all the more because those are just the ones I know about, the ones I knew enough to catch on the back end or got enough feedback about to change. We can’t know what we can’t know. My only inoculation there was to be relentless in my reading and learning and watching others and attending consultation groups and just plain putting in the time. Here is a great opportunity to put in a plug for board certification, too.
Now, there are also mistakes with a little “m.” Those are situations where legal maneuvering tried to paint something small into something large. Once, I put my interview was 2 hours when it was really 1.5. It was because for billing we were supposed to put transport/processing/wait time with our interview. I used the billed time not the actual face to face time. Yep, an error. But at a certain point I just had to confidently say this was irrelevant to my opinion and that the hour and a half with the defendant had been plenty of time to render a full and confident opinion.
Another “little ‘m’” was when I was asked if I knew a certain neuroleptic side effect. It was one of those I should probably remember but always have to look up, and on the stand I panicked and he asked if I knew it and I was trained that on cross you answer the question and only the question. So I said, “no.” Oops. That answer needed context. It needed, “I don’t remember in this moment the definition of that word, but I’m familiar with many of the side effects of neuroleptic medications.” I felt really dumb afterwards. But it was an excellent lesson in really illuminating what it means to be an expert. Mostly, it’s in answering their questions. But sometimes, it’s exactly the opposite. I’m supposed to tell the truth. The truth of that answer wasn’t “no.” I think “little ‘m’s’” are the best kinds of learning experiences because they help us grow without making us look into early retirement. But they’re all important, and probably unavoidable in this wonderful terrible field of fire we’ve chosen to walk into without a suit.
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