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Moderator: Cynthia Elkins & Amy Semmel
Topic: “How to Tell If a Litigant is Faking in a Psychological or Neuropsychological Exam”
Parties to personal injury, employment, workers compensation, disability, criminal, and family law matters may undergo psychological or neuropsychological assessments as a part of their cases. Plaintiffs alleging traumatic brain injury and/or psychological injury may be motivated to exaggerate cognitive limitations and psychological complaints. Parents seeking custody may be motivated to hide pathology. Criminal defendants may seek to hide or exaggerate pathology, depending on the context. Some litigants malinger intentionally; others skew results as a function of less conscious processes and motives. So how can you tell? Specific tests measure effort and motivation directly, and indices embedded within larger tests measure these as well. But there’s more: A knowledgeable expert evaluates the consistency of scores on tests that measure overlapping areas of function; the relationship of scores with reported symptoms and with known patterns of damage and disability; and the relationship of all findings with a litigant’s everyday functioning. A seasoned expert also recognizes patterns of test performance that conform to (or defy) “common sense” – sense that’s not common to those untrained in psychological function and brain-behavior relationships. Understanding how effort and motivation are assessed gives an attorney tools to limit an expert’s subjective and interpretative leeway. Understanding how – and how well – experts’ data supports their opinions empowers attorneys to cross- examine the adversary’s experts at deposition and trial, and better positions them to prepare their own experts for direct and cross-examination.
Dr. Dana Chidekel, a clinical neuropsychologist, is certified by both the American Board of Pediatric Neuropsychology and the American Board of Professional Neuropsychology. She maintains a private practice in Tarzana, in which she provides comprehensive assessments to children and adults referred for cognitive, developmental, academic, psychiatric, and behavioral problems. Licensed to practice in California, Oklahoma and Connecticut, Dr. Chidekel dedicates approximately 30% of her practice to forensic work. She is retained as a consultant and expert witness by plaintiff and defense in approximate equal proportions in state and federal matters associated with personal injury, probate litigation, employment law, educational law, business law, and (limited) family and criminal law. Cases involve questions of testamentary and contractual capacity, traumatic brain injury, medical malpractice, psychological trauma, harassment, disability, developmental disability, and special education. She loves the good fight, which any fight on behalf of the truth. Dr. Chidekel has authored and coauthored professional articles about developmental neuropsychology and parameters of professional practice, that appear in journals such as Cerebellum, Pediatric Neurology, and Applied Neuropsychology: Child. She is co-author of ADHD as a Model of Brain-Behavior Relationships (Springer 2013) and author of Parents in Charge: Setting Healthy, Loving Boundaries for You and Your Child (Simon and Schuster, 2001). She is a frequent presenter to lay and professional audiences, as a speaker, panelist, and keynote. Dr. Chidekel has appeared on local and national radio and TV programs, including multiple appearances on The Today Show.