Discovering the Illegible

At one time or another, most attorneys handling litigated custody disputes have obtained evaluators' notes, only to find them to be undecipherable. It is my position that when this occurs, evaluators bear the responsibility for having their notes transcribed at their own expense.

Model Standard 3.2(a) of the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation states, in pertinent part, that “evaluators shall presume that their records are created, maintained, and preserved in anticipation of their review by others who are legally entitled to possess them and/or to review them.” A similar admonition appears in the American Psychological Association's custody guidelines. Guideline 16 reads: “All raw data and interview information are recorded with an eye towards their possible review by other psychologists or the court.” Simple logic suggests that if one is creating records “in anticipation of their review by others,” those who might wish to review the records need to be able to read them. Nevertheless, the AFCC elected to specify, in Model Standard 3.2(b), that records “shall be created in reasonable detail, shall be legible, shall be stored in a manner that makes expeditious production possible, and shall be made available in a timely manner to those with the legal authority to inspect them or possess copies of them.”

Evaluators who are psychologists can reasonably be expected to comply with the American Psychological Association's Ethics Code. Standard 2.01(f) states: “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles.” The judicial or administrative rules include the rules governing discovery.

Creating Records

It should be apparent to the often-referenced reasonable person that the manner in which one creates records, the steps taken to preserve them, the individuals to whom they are disclosed, and the procedures followed in releasing them are all contextually determined. In no context are appropriate records more important than in the forensic context. Unfortunately, it is more likely than not that most state regulations governing the practice of the various mental health professions, make no reference to the issue of legibility. Many clinicians might take the position that records created in a treatment context must be readable by and understandable to the treating clinician and the individual who has been legally designated as the custodian of those records in the event of the clinician's death. In a forensic context, records must be readable by any of the individuals who are legally entitled to inspect them.

'Reasonably Familiar'

The words “reasonably familiar with the judicial or administrative rules governing their roles” (from the APA Ethics Code) suggest that knowledge of the laws is necessary, but not sufficient. Reasonable familiarity requires the development of an understanding of the laws (as opposed to rote memory of the laws). Where a forensic evaluation is involved, prior to placing pen to paper and making the initial record entry, evaluators should be aware that under ordinary circumstances their records will be discoverable.

Evaluators must understand the legal objectives that underlie the laws and rules governing their roles. In particular, it must be understood that discovery is linked to due process and that the rights of litigants wishing to challenge the findings and opinions of experts cannot be protected unless the experts have created, maintained, and produced records that are reasonably detailed and legible.

Conclusion

When attorneys and consultants are faced with marginally legible records, time must be expended in deciphering them, fees are charged for the time expended, and the cost of litigation is needlessly increased. Where examiners have been irresponsible in creating their records and where records have been created that are not reasonably legible, fairness dictates that the examiners be required to have their notes transcribed at their own expense.

David Martindale, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology. He served as the reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of 'The Art and Science of Child Custody Evaluations.' His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].

At one time or another, most attorneys handling litigated custody disputes have obtained evaluators' notes, only to find them to be undecipherable. It is my position that when this occurs, evaluators bear the responsibility for having their notes transcribed at their own expense.

Model Standard 3.2(a) of the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation states, in pertinent part, that “evaluators shall presume that their records are created, maintained, and preserved in anticipation of their review by others who are legally entitled to possess them and/or to review them.” A similar admonition appears in the American Psychological Association's custody guidelines. Guideline 16 reads: “All raw data and interview information are recorded with an eye towards their possible review by other psychologists or the court.” Simple logic suggests that if one is creating records “in anticipation of their review by others,” those who might wish to review the records need to be able to read them. Nevertheless, the AFCC elected to specify, in Model Standard 3.2(b), that records “shall be created in reasonable detail, shall be legible, shall be stored in a manner that makes expeditious production possible, and shall be made available in a timely manner to those with the legal authority to inspect them or possess copies of them.”

Evaluators who are psychologists can reasonably be expected to comply with the American Psychological Association's Ethics Code. Standard 2.01(f) states: “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles.” The judicial or administrative rules include the rules governing discovery.

Creating Records

It should be apparent to the often-referenced reasonable person that the manner in which one creates records, the steps taken to preserve them, the individuals to whom they are disclosed, and the procedures followed in releasing them are all contextually determined. In no context are appropriate records more important than in the forensic context. Unfortunately, it is more likely than not that most state regulations governing the practice of the various mental health professions, make no reference to the issue of legibility. Many clinicians might take the position that records created in a treatment context must be readable by and understandable to the treating clinician and the individual who has been legally designated as the custodian of those records in the event of the clinician's death. In a forensic context, records must be readable by any of the individuals who are legally entitled to inspect them.

'Reasonably Familiar'

The words “reasonably familiar with the judicial or administrative rules governing their roles” (from the APA Ethics Code) suggest that knowledge of the laws is necessary, but not sufficient. Reasonable familiarity requires the development of an understanding of the laws (as opposed to rote memory of the laws). Where a forensic evaluation is involved, prior to placing pen to paper and making the initial record entry, evaluators should be aware that under ordinary circumstances their records will be discoverable.

Evaluators must understand the legal objectives that underlie the laws and rules governing their roles. In particular, it must be understood that discovery is linked to due process and that the rights of litigants wishing to challenge the findings and opinions of experts cannot be protected unless the experts have created, maintained, and produced records that are reasonably detailed and legible.

Conclusion

When attorneys and consultants are faced with marginally legible records, time must be expended in deciphering them, fees are charged for the time expended, and the cost of litigation is needlessly increased. Where examiners have been irresponsible in creating their records and where records have been created that are not reasonably legible, fairness dictates that the examiners be required to have their notes transcribed at their own expense.

David Martindale, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology. He served as the reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of 'The Art and Science of Child Custody Evaluations.' His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected].