Falling Off The Roof

March 10, 1992

Sometimes, your adversaries give you a gift. 

Today, they called a witness who performed a “psycho-educational” evaluation on my client who is claiming to have sustained a brain injury at birth due to negligence of the doctor who delivered her.

            The witness, on direct examination described herself as a “reading specialist and learning consultant”.  After eliciting that fact, my adversary (and the Court) had a very odd and eventually prophetic exchange with the witness):

Q         Sit back and relax. Have you ever done this before; have you ever testified?

A         No, I never have.

Q         It's just like falling off the roof of a building; it's very easy, just relax.

THE COURT: Except when you land.

            The defense position in the case was that there had been no negligence in the care rendered.  The child had a condition known as congenital ocular motor apraxia – an abnormality in the muscles controlling eye movements.  The defense was that the child’s intellectual difficulties were most likely due to the same unknown cause as this condition, and exacerbated by it. 

            On direct examination she described the educational tests she administered and the results.  Her conclusion was that with remedial assistance of the type provided by someone in her profession, the child should be able to improve substantially by the end of her educational career.  She also advised the jury that the school system was required by federal law to provide special assistance to the child during her school years.

            She immediately conceded on cross examination that she did not have a doctorate degree, was not licensed in psychology, and therefore was not qualified to administer standard intelligence tests.  In response to my initial question about her employment she said she is “currently self-employed”.  It turned out on further questioning however, that she had been “self-employed” for the entire twenty years, with only an occasional part time job for a school district.  It was also revealed that she was introduced to the defense law firm by a neighbor who is a pediatric neurologist who frequently appeared in Court as a defense expert.

            Review of the test books she used with my client revealed mathematical errors on her part in the scoring of the exams as well as erasures.  She admitted that she did not apply the time limits on one test which resulted in a higher score than would otherwise be the case.  None of the tests she used were the current version, meaning that revised versions were available.  With all of that, the child tested in the normal range on only one test – which involved testing vocabulary based upon picture recognition.  She used the 1959 edition of that test – in 1989!  She also revealed that she had not seen any of the child’s school records until 2 days before her appearance in Court.  The school records included testing administered by people with doctorate degrees in education using the current versions of the tests with results showing the child functioning at a significantly lower level than her test results did.

            In addition to all of that, my client, the child’s mother approached me during a break to tell me that the witness was repeatedly looking over to the defense lawyer and that there was silent communication going on between them during my questioning.  I did not believe it; I had and still have a very high opinion of the lawyer who defended that case.  But I decided after the break to stand next to the jury box so that the witness would have to look to her left (away from where defense counsel was seated) to see me.

            Once it had been brought to my attention, I noticed the witness looking away from me and the jury on several occasions.  Here is an excerpt of the transcript which reflects what occurred when I brought it up:

            Q         Do you think that Justine has multiple handicaps?

A         Justine has many problems.

Q         And do you think that her problems interact with one another and impact on her overall function?

A         That's possible.

Q         You say it's possible. You evaluated her, didn't you?

A         Yes, I did evaluate her.

Q         You keep looking over there.

A         No, I'm sorry; I’m not trying to be coached, if that's what you think.

Q         I wasn't suggesting that, I just notice that you keep looking over there.

A         Yes, I did evaluate her.

Q         And in your evaluation, did the different handicaps that she has interact with one another and impact on her overall function?

A         Yes

            The witness conceded that it was not acceptable in her profession to draw conclusions based upon the results of a single test which evaluates only an isolated area of function.  However, as we went through her report for the conclusion of my cross examination, it was clear that based upon her own tests, the child’s function was below normal in every category except the picture recognition test.  At that crucial point, in the conclusion of the questioning, here is another excerpt from the trial transcript:

Q         Did you?

A         It says, "However, considering that her receptive language abilities are intact" shall I go on?

Q         Yes.

A         "It is likely that Justine's reading and math could be brought to grade level and that her fine motor skills could be significantly strengthened by intensive prescriptive individualized instruction from a reading specialist or learning disabilities teacher".

Q         Isn't that what I read?

MR. [Defense lawyer]:     I’ll object, Judge.

Q         Why are you looking at Mr. [Defense lawyer]?

A         I don't know. I’m not looking at him for any reason.

Q         What that sentence means, Mrs. [witness], is that based upon this finding of what you described as intact receptive language abilities, all of this other, all of these other problems can be corrected, correct?

A         The math --

THE COURT: Is that what it means?

THE WITNESS:         Yes. The math and reading, I didn't say all these other problems.

Q         You said that it was likely that "reading and math could be brought to grade level, correct"?

A         Right.

Q         You said, "Fine motor skills could be significantly strengthened"?

A         Right.

Q         So, you're saying that these problems can be resolved because you found intact receptive language, right?

A         I found intact receptive language through the tests that I administered to Justine.

Q         Would you tell me where in this report, where you comment on the receptive language, other than in connection with the Peabody Test?

A         Not in that report, but as I explained to you before, the Slingerland, the - -

Q         I’m asking about the report. Where in the report do you describe anything about receptive language abilities, other than in connection with Peabody?

A         I do not. 

            I never realized that I miss so much of what goes on in the Courtroom.  From now on, I will ask my clients to be observant and to report to me any reactions they perceive on the part of jurors, witnesses or even the judge while I am questioning and perhaps too focused to notice.