I. Introduction

Advocacy on behalf of parents with mental and behavioral disorders invariably involves interpreting, testing, and challenging the opinions of mental health care professionals. Depending on the extent of ones preparation, cross examination of the mental health expert is either a trap for the unwary or a target rich environment. The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), published by the American Psychiatric Association, has become the world's standard for evaluation and diagnosis of mental disorders. The DSM-IV gives the appearance (and sometimes substance) of methodological rigor which has traditionally been a safe harbor for the testifying psychologist. Your clients occasional behaviors become lists of symptoms, and when a certain number of symptoms are catalogued, a diagnosis from the pages of the DSM-IV follows. Once a diagnosis attaches, the lawyers client is labeled an abnormal person or mentally ill patient. The jury, judge, and caseworker ever after are tempted look past the complexity, depth, and uniqueness of the parent and focus on the diagnosis of a mental disorder following as little as a one hour interview of your client. For this and other reasons, the DSM-IV is an important tool for which the parents advocate should develop expertise in its uses and limitations. Prior to any journey through the DSM-IV, parents representatives would do well to revisit some basic principles governing the introduction of expert testimony. II. With very few exceptions, there is no meaningful appeal from a trial courts ruling admitting or excluding expert evidence in the State of Texas.

The Eighth Court of Appeals solidly adheres to the principle in Texas that a trial courts evidentiary rulings are reviewed under an abuse of discretion standard. Trial courts in Texas must follow the law as set forth in E.I. du Point de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). In Robinson, the Texas Supreme Court adopted the reasoning of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 591-95, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469, 482-84 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137; 119 S.Ct. 1167 (1999) relating to the admissibility of expert testimony. Texas Rule of Evidence 702 requires, upon objection, that the proponent of expert testimony must show: that the expert is qualified; that the experts testimony is relevant to the issues in controversy; and, that the testimony is based upon a reasonable foundation. The trial court, in its function as a gatekeeper, must then make a preliminary determination as to whether the proffered testimony meets the criteria of Rule 702.

As a result, the opponent puts the matter at issue by making an objection. While the burden is on the party offering the expert, the opponent, at the first available opportunity, should make every effort to take the expert on voir dire in order to take the offensive, through leading questions, in undercutting the methodological or factual basis for the experts testimony. Specific strategies are discussed below in testing the admissibility of the mental health experts opinions. The primary goal is to obtain a concession from the expert that the proposed opinion is not based on a reasonable degree of certainty common to persons practicing in the field for the reason that the proposed diagnosis does not meet the diagnostic criteria of the DSM-IV. In the absence of such a concession, an alternative goal is to assist the trial court in understanding how the proffered experts opinion is a departure from the diagnostic criteria of the DSM-IV. This task highlights the importance of gaining familiarity with this tool universally used in the mental health community.

III. The DSM-IV relies on a data base to apply its categories.

The DSM-IV was written by a committee with the goal of providing standards for research as well as clinical practice. The Practitioner uses three types of information as a "data base" to apply the DSMIV methodology. They are: patient records; informants; and interviews with patients. The information may be unreliable because of the bias or limitations of the reporter; the imprecision of the communication medium, the paucity of information, or cultural or linguistic limitations. II. The DSM-IVs >scorecard is the starting place to organize an effective cross-examination.
The DSM-IV offers five Axes to record the assessment of the practitioner. The first three Axes are for the mental and physical diagnoses. The remaining two relate to environmental problems and provide an assessment of the patient's functioning over the previous year.

Axis 1 Mental Disorders.

Notes for cross examination:

• If a practitioner is uncertain about a diagnosis they should use the term Aprovisional following the diagnosis. This should be used if there is insufficient history to support the impression; or if it early in the patient's illness and there may be more symptoms to come.
• If the practitioner can be moved to admit a scholarly "provisional" diagnosis; it should be argued that it is not admissible under the Texas Rules of Evidence because it is not based on a reasonable degree of certainty common to the practitioner's profession.
• Practitioners are taught in most schools to use certain qualifying language such as "mild," "moderate," "severe, "in partial remission," "in full remission," or "prior history." The absence of this qualifying language may signal that the practitioner has painted with a broad brush.

• A low functioning person may have cognitive limitations which affected the accuracy of the data collected by the practitioner. Did the practitioner consider the presence of mental retardation or personality disorder?

• A physical illness or disorder may have a direct bearing on the patient's Axis I diagnosis and the data collected by the evaluator.

• Economic Problems
• Housing Problems
• Problems with Primary Support Group (death, family disruption, divorce, abuse)
• Occupational Problems
• Educational problems
• Problems related to social environment.
• Problems related to interaction with the Legal System
• Other Psychosocial Problems

• It cannot be overemphasized that Axis IV is dangerous ground for the parent advocate. Some mental disorders such as Post Traumatic Stress Disorder (PTSD), are linked in the diagnosis criteria to specific psychosocial stressors identified at Axis IV. Accordingly, a childs disorder may be linked to the adult client as the perpetrator through Axis IV.
• Did the practitioner consider one or more of these categories? Why were some excluded? If the interview did not include these elements, it may be that the practitioner jumped to a diagnosis prematurely. A long voir dire on this list may convince a judge that the psychologists diagnosis is not methodologically sound.
• They should have occurred within the year prior to the evaluation.
• They should be as specific as possible.

• This is perhaps the most subjective portion of the DSM-IV. It is a target rich environment to show the limitations of the practitioner's data base. "You must not have been aware that she demonstrated these coping skills. . . ." "Would your assessment change if you knew . . . ."
• The GAF can be useful if it shows no change over time--Treatment regime not appropriate?
• The GAF can be useful if it shows change over time (and while in care)--Person is improving in ability to care for her children.

• Expected reactions to everyday stresses like the loss of a loved one are not sufficient symptoms to support a diagnosis as a mental disorder.
• Behaviors that primarily reflect a conflict between the individual and society are not considered mental disorders.
• There are no sharp boundaries between disorders and "normality." The clearest example may be the criteria for alcohol abuse, alcohol dependence, and 'neither' which are fairly close along the continuum of alcohol use.
• The DSM-IV is supposed to be an "atheoretical" model; and makes no assumptions as to the etiology of most (but not all) of the disorders.
• The DSM-IV contains 120 more conditions than the DSM-IIIR. There are about 340 total conditions in the DSM-IV.
• The DSM-IV may not be uniformly applicable to all cultures. The studies which underlie the DSM-IV were conducted primarily in the United States and Canada. Further, the clinicians who have developed the methodology are largely European and North American. At page 843 of the DSM-IV there are a number of specific cultural syndromes.

• III. Remind the psychologist that the ethical standards governing their profession requires them to defer a diagnosis if there is insufficient data.
• IV. Commit the psychologist to the view that a preliminary or provisional diagnosis should be used when there is a need for additional testing, interviews, and observations.
• V. Recite all of the types of testing which could and should be done if they were qualified to do the testing (the practitioner may not be), or were given the resources of time and money by the department to do so.
• VI. Set out the biases of the reporters.
• VII. Provide new information which would affect the diagnosis relating to the health of the person, other environmental conditions not known to the practitioner, or occupational or educational imparities.
• 6. Highlight the cultural limitations of the DSM-IV and ask if the psychologist considered and of the cultural based syndromes.
• VIII. Finally, return to the ethical standards reminder and ask them if they now wish to move their diagnosis to the category of "impression" or "provisional." Move to exclude.
• IX. When the opinion will come in, one alternate strategy is to turn the adverse expert into your own expert.

• X. Commit the psychologist to the notion that mental disorders are temporary, and elusive.
• 10. Talk about success.
• 11. Talk about treatment regimes.
• XI. Remind them about the number of functional people who have greater skills and sensibilities to mental disorders because of their own treatment and recovery.
• 13. Talk about a bright prognosis.
• 14. Recite your client's strong points.
• 15. Once the Court accepts the expert as an expert, it may be helpful in the long run to turn the expert into your shopping advisor for additional services for your client.

• XII. Use the psychologist as the subject matter expert about the range of services which should be provided to constitute reasonable efforts.
• 17. Identify services which can be provided in the home.
• 18. Identify how the disorder can be managed in the context of continuing care giving to the children.
• XIII. In a rare circumstance where the mental health professional has bludgeoned your client, one strategy to consider is to turn the hopelessly adversarial expert into the problem.

• XIV. Commit the practitioner to the notion that the DSM-IV presumes that persons with disorders are treatable.
• XV.
• XVI. Demonstrate under each Axis the formidable barriers which your client has faced.
• XVII. Accuse the mental health professional of hiding behind the DSMIV to avoid doing real therapy.