The phone rings. It is Ann, a first-rate attorney, who has become a friend. “He's doing it again. It makes no sense!”
“He” is Fred, a brilliant businessman who despite many court orders keeps indoctrinating his children against their mother. “How can he do such a thing?” Ann asks, explaining how Fred had told the kids he cannot go on living unless they are in his custody. “Doesn't he know what he is doing to them?”
“Actually,” I say, “knowing or not knowing isn't the issue. Fred feels he is struggling for his very psychological life. Court orders and fines will no more stop him than they would stop a drowning man from clinging to a life raft.” I explain how Fred's narcissistic needs lead him to use his children to support an extremely vulnerable self and how recent psychoanalytically informed research points the way to managing the acrimony that results when divorcing parents feel threatened in the way Fred does.
Psychoanalysis and law share a common subject: human action and feeling. They approach that subject with different viewpoints and different goals. Analysis hopes to heal and understand. Law strives for control and justice. Analysts tend to focus on the individual's internal world. Law generally tries to influence entire communities by acting on individuals. Working effectively together can be challenging and rewarding for both analysts and legal professionals. Analysts can play many roles in the legal process, including expert witness and litigation consultant. They can advise in shaping law and help attorneys understand the psychological stress of their own profession.
As expert witnesses, mental health professionals (including analysts) have had a major impact on law. Knowledge of such matters as children's psychological needs, the impact of trauma on psychological function, and the motivation for seemingly senseless acts have brought analysts into the courtroom since the 1920s. The range of issues is enormous:
After killing her abusive husband, a woman claims she was so frightened of him that she could not think of another way to protect herself.
After losing two fingers in an industrial accident, a man reports such severe anxiety states and flashbacks that he cannot return to the work place and seeks compensation for a permanent disability.
The mother of three-year-old boy who loses bladder control after an overnight visit with his father claims the overnight visits should be stopped because the boy is too distressed by them.
A woman files a lawsuit demanding hundreds of thousands of dollars for emotional stress after a bank officer attempted to defraud her.
A twelve-year-old's attorney asserts that the youngster did not understand the permanence of death when he killed another boy and so should not be tried for murder.
To function effectively as expert witnesses, analysts need to understand their role and situation. Getting used to that role can be difficult. The expert's job is to provide courts with information that is relevant to legal decisions, not to make sure the court does what the expert thinks is right. Experts may wish the law were different, but it is not their job to try to change it from the witness stand.
In courtrooms, truth is sought through an adversarial process. Witnesses can feel frustrated and angry as lawyers try to make points in ways that seem unfair or to distort the truth. Analysts who go to court should expect that the lawyer opposed to their testimony will use every legal means to impeach it. Thorough preparation and reasonable humility are more important than a thick skin in playing the expert role, but no one should take the witness stand expecting to be treated with kid gloves. Fortunately, in recent years a series of excellent training programs, courses, and books have become available to help expert witnesses do their jobs better.
Analysts and our ideas have a long and complex history in court. Ideas derived from psychoanalysis currently have a profound impact on matters involving the custody of children in divorce, abuse, or neglect. In recent decades, as an emphasis on retribution and “lock 'em up” has replaced a focus on rehabilitation, analysts have played a decreasing role in the criminal justice system, a situation that we hope will change as the enormous human and financial costs of current attitudes become ever more apparent.
One emerging area in expert testimony concerns the conduct of psychotherapy. Malpractice litigation resulting from issues such as the management of transference, the emergence of memories of abuse during treatment, and boundary violations are increasingly important areas of expert testimony. Analysts' knowledge of the psychological impact of trauma have made us important witnesses in civil actions involving trauma.
The days when analysts could walk into court and offer evidence based only on analytic theory and personal experience are numbered. Reacting to the flow of “junk science” into litigation, courts increasingly demand reasonable empirical bases for expert testimony. Testifying analysts should be aware of the rules governing their testimony and ready to deal with questions about its empirical validity.
Another area where analysis and law interact is litigation consulting. Litigation consulting grew out of the civil rights movement of the 1950s, when lawyers turned to psychologists to understand how to control racist attitudes among jurors. Today litigation consultants address almost all kinds of trials and negotiations. If a case gets even close to trial, the facts and/or the law are not completely clear, so that there is plenty of room for powerful emotional factors to determine its outcome. Analysts, especially those expert in group phenomena, are exceptionally able to understand these forces and to help attorneys use them rather than be overwhelmed by them. Studies of juries show, for example, that they often give huge punitive damage awards when they feel that a large company fails to “get the message.” Analysts readily understand the hostile transferences that can be stimulated by entities that seem powerful and unfeeling and how the fate of the litigation can rest on these transferences. Helping attorneys understand these transferences and their management can significantly affect the outcome of litigation. For
Robert M. Galatzer-Levy, M.D., is a training, supervising, and child and adolescent supervising analyst on the faculty of the Chicago Institute for Psychoanalysis. His most recent book, The Scientific Basis of Child Custody Decisions, co-edited with Louis Kraus, was published in fall 1999 by John Wiley and Sons.
example, the analyst might show an attorney how a “brilliant” argument might come across to a jury as arrogant so that rather than strengthening the client's case it further stimulates the jury's anger against the client.
Based on our analytic experience, many of us have strong views about what the law should be. Efforts to change the law so that it is more responsive to the needs of people is an important activity for analysts. In the 1970s, Anna Freud and Albert Solnit, in collaboration with law professor Jay Goldstein, wrote an important series of books about how children's developmental needs should be reflected in the laws governing child custody and protection. Many of their recommendations were rejected, but their work led to a new focus on the child's experience.
Analysts and lawyers can often join to think through and support change in the legal system. A Chicago group of lawyers, analysts, and other mental health professionals, the Behavioral Science and Law Forum, has met monthly for the past four years to explore how law can best serve the needs of children. Our ongoing discussions, coming from very different viewpoints, not only are stimulating but also often point to effective action.
The psychology of legal practice is another area in which analysts can be helpful. Attorneys are commonly the objects of intense transferences. Though some attorneys are skilled in managing clients' transferences, many feel oppressed and exhausted by them. Some respond by enacting the transference with the client, often to the detriment of both parties and always to the detriment of the litigation. The pressure put on attorneys by intense dependent or erotic transferences can lead to severe lapses in professional judgment. A consulting analyst can help the attorney understand and better deal with these transferences.
The inner life of law firms is another area where analysts can be helpful. Law firms are populated by bright, aggressive, often creative people working under substantial pressure. Not surprisingly, complex and painful psychological situations commonly develop. Dozens of novels and some excellent case studies illustrate how law firms have collapsed in the face of emotional forces that were barely understood despite their devastating effects. Consultant analysts who comprehend these processes can often be of enormous help in untangling the web of wishes, needs, and transferences that can be so catastrophic in legal practice.
Analysts who enter the world of law have many opportunities for intellectual stimulation and to do useful work. Doing so requires a willingness to learn much and respect viewpoints different from one's own. The rewards include an expanded view of the world and the opportunity to influence lives in ways that would be impossible in the consulting room. It is particularly rewarding to see analytic understanding prove useful. As Ann, the attorney who could not understand her client's behavior, said to a colleague, making sure I was in earshot, “These analysts really know something about people!”