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[00:00:00] Dr. Sharp: Hello everyone. Welcome to The Testing Psychologist podcast, the podcast where we talk all about the business and practice of psychological and neuropsychological assessment. I’m your host, Dr. Jeremy Sharp, licensed psychologist, group practice owner, and private practice coach.

This podcast is brought to you by PAR.

The Neuropsychological Assessment Battery offers the combined strengths of a flexible and fixed neuropsychological battery. And now you can score any of the NAB’s six modules on PARiConnect, PAR’s online assessment platform. Visit parinc.com\nab.

Hey everyone. Welcome back to the podcast. I have a clinical interview today with an expert in forensic neuropsychology, Dr. Noah Kaufman.

Noah was a national champion bicycle racer in the late 1980s and a teammate of [00:01:00] Chann McRae, Lance Armstrong, and George Hincapie. He got interested in psychology after being exposed to sports psychology during his racing days and ended up doing undergraduate at the University of New Mexico, graduate training at the University of Oregon, and then two postdocs, one at Mesilla Valley Hospital in New Mexico, and another in clinical neuropsychology through the Fielding Graduate Institute under Dr. Arnie Purisch.

Noah is board certified by the American Board of Professional Neuropsychology, the American Board of Pediatric Neuropsychology, and the American Board of Professional Psychology in Forensics. He’s a Clinical Assistant Professor in the Department of Psychiatry at Texas Tech University Health Sciences Center and is the lead author of the book, Forensic Mental Health Assessment in Criminal Contexts: Key Concepts and Cases. He’s also the author or co-author of multiple chapters and peer-reviewed publications.

[00:02:00] Dr. Kaufman currently focuses the majority of his time running a clinical and forensic neuropsychology practice at The Center for Neuropsychological Studies in Las Cruces, New Mexico.

This was a fantastic conversation. For someone who does not dwell in the forensic realm too often, I thought this was a very accessible and engaging interview with Noah, who’s a fabulous guest, very down to earth, genuine, and forthcoming about the work and himself.

We tackle some things like core foundations of forensic neuropsychology. We define some terms, different types of evaluations, and different roles we can play in the forensic realm. We talk about combating bias in forensic work and the primary types of bias that might come up. We talk about testimony and how to navigate [00:03:00] situations where we testify. And we touch on many other topics during this interview. So as usual, there’s a lot of information and plenty to sink your teeth into. Please enjoy my conversation with Dr. Noah Kaufman.

Hey Noah, welcome to the podcast.

Dr. Noah: Hey, thanks for having me.

Dr. Sharp: Glad to have you. I know that we share a lot of interests that I’m going to try my best not to talk about on this podcast because they’re not relevant for forensic assessment but you have this history of being an athlete and a cyclist, and I could easily spend an hour and a half talking about anything in that realm. So I’m going to try to [00:04:00] hold myself back during our time together here and stay on topic. But I appreciate you being here.

We haven’t talked about forensic assessment a lot on the podcast. I think because it’s a little bit outside my area of expertise and so I sometimes have trouble knowing what questions to ask and so forth but I’m glad that you’re here and I’m excited to dive into a topic that I think is going to be relevant for a lot of folks. Thank you.

Dr. Noah: Hey, well, thanks for having me.

Dr. Sharp: Yes. So I will start with the question I always start with, which is, why is this important to you? Out of all the things that you could focus on in the neuropsychology world, why specialize in forensic work?

Dr. Noah: I think I just followed my heart, frankly. You mentioned the bike racing and when I quit doing the [00:05:00] bike racing, I think I was 20 and when I had been a bike racer, I’d worked with a sports psychologist at the Olympic Training Center in Colorado Springs. They gave them to us for free and so it planted a seed for me that I like psychology.

And so, when I quit racing bikes, I listened to my heart and it was like, well, psychology seems interesting. And then somebody told me, oh, you got to go to school forever for that. So I was like, all right, I’m not going to do it. That’s going to take too long. And so I did some other things for a while and then I made my way my way back to it. And then the more I was exposed to the field of psychology in general, the more I gravitated toward certain areas.

At first, it was statistics in graduate school. I really got way deep into that but then as I got closer to the time to do my internship, I started thinking more about face-to-face [00:06:00] work. And I really wanted to understand more about the brain and behavior. And so that got me into neuropsychology. And then pretty quickly from there, it was like, wow, people actually use this in legal settings. And so, I was exposed to forensics in my pre-doctoral internship, and once was exposed to it, I was like, wow, this looks pretty cool. And so I just followed my heart.

Dr. Sharp: Yeah, that’s a good way to put it. It’s a simple but difficult thing to do sometimes, just listen to what you like. So is there anything in particular, thinking about how you ended up here, anything about the forensic realm that you can put your finger on that drew you to that because I think, maybe this is an assumption on my part, but I feel like it takes a certain personality to work in the forensic realm. And I wonder if there’s anything.

Dr. Noah: That’s an interesting question.[00:07:00] I grew up in rural Northern New Mexico. When I say rural, what that really meant was that I had an hour-and-a-half-long bus ride.

Dr. Sharp: Oh, wow.

Dr. Noah: And some of the people on my bus were pretty mean, like hardcore. I had a guy on my bus who had a knife and if you weren’t looking, he’d sneak up and grab your hair and cut your hair. Come on. One time I was sitting on the bus, I was like in, I don’t know, 7th or 8th grade, when I was just sitting there in the back of the bus, everyone’s getting on the bus at the end of the day of school, and all of a sudden my head is like slamming against the glass because this dude just decided to just pop me for no reason. Just totally punched me as hard as he could.

And so growing up in Northern New Mexico, I have other [00:08:00] stories that are very similar to that, and I think part of me wanted to understand criminal behavior and violent behavior. And I like, how do these dudes get to where they can do this stuff? And there was a lot of that in my community. And so I think on some level that was part of it, that was part of what got me excited about the criminal side of it.

In terms of personalitywise, I’m not a very extroverted person and I’m not the kind of person who likes to hear themselves talk. I’m not one of those people that gets in a courtroom and just feels naturally at home. For me, I have to really prepare myself for testimony because it can be very competitive but I think going back to the bike racing, I think part of it is, I sometimes see it as [00:09:00] a race in some ways. You have to get very prepared and then you get in there and then you just stay very focused. And so, I’m able to get through it. So in some ways, it’s easier for me to testify sometimes than it is to do other social things.

Dr. Sharp: That’s fascinating. I like that analogy though. That rings true for me as well. You can do many things with the right preparation and it certainly decreases anxiety.

Dr. Noah: Yeah, and it’s ironic that you’re saying that because I literally was testing somebody like two minutes before this podcast started, so I did no preparation. So hopefully, I can answer any questions that you throw out.

Dr. Sharp: Well, hopefully, I’m a lot less adversarial than an attorney in the courtroom.

Dr. Noah: Well, man, you got the cool beard and you got the nice tone of voice, so absolutely you’re off to a good start, man.

Dr. Sharp: Well, I hope we are almost there. Well I know [00:10:00] we’re going to talk about some testimony tips later in the interview, so I won’t totally blow that door wide open right now but I appreciate you opening that door a little bit. I’m going to bookmark that because that is really, I’m curious for me how someone with a more introverted personality might fare well in a forensic setting. So let’s put a pin in that. I want to make sure to ask about that as we get into things.

I’d love to lay some background first. Some of this will be pretty basic, I’m guessing, for some of the listeners, but I just want to do a little background and set the stage for our conversation. So could we just dig into some basics around forensic work, like some terminology. Maybe we could even start with the term forensic. I think this gets thrown around a lot and you give a really nice definition in your book that I think is pretty clear. So [00:11:00] maybe we just start there and go from there.

Dr. Noah: Yeah. The definition in the book is for law enforcement and courtroom purposes. It’s just really straightforward. I’ve had friends who in the past were like, oh you do forensic work? Is that CSI? And they were always disappointed. They’re like, you’re not doing CSI. And it’s like, no, I don’t do CSI. But yeah, this definition is basically saying that forensic just means for law enforcement in courtroom purposes. And so, when I think about forensics, I think about the purpose of it being not to treat somebody, not to help heal somebody, it’s to help these decision makers, judges, and juries make better decisions so that we have just legal outcomes.

Dr. Sharp: Yes, that’s great. Is that synonymous with court-ordered or can an [00:12:00] evaluation be forensic without being court-ordered?

Dr. Noah: That’s a good question. Absolutely. You can have a forensic evaluation that’s not court-ordered. When you have a court order, it makes me think about court-appointed evaluators, right? And so you have some folks. I was testifying in a case last week, a competency hearing, and there was another evaluator who was a court-appointed expert, so paid by the court and their job was to address a specific legal question. In this case, it was competence to stand trial and they’re really just working for the court, trying to help the court understand what’s going on. And so that’s a court-ordered evaluation.

There can be other kinds of court order evaluations, but the work that I usually do, I don’t work specifically for the court at this point. I get hired by attorneys. [00:13:00] So it’s not court-ordered oftentimes. So a lot of times I’m working for public defenders and the public defender may not want the prosecution to even know that their client is being evaluated by me. And so this is one of the things that I talked about with the examinee, with the defendant when I’m doing the informed consent is, I let him know, hey, there’s no court order. A judge is not ordering you to be here. You’re here because your lawyer wants me to try to understand you better.

Dr. Sharp: Got you. Yeah, that makes sense to me. When it’s laid out that way, it seems very clear. And not living in that world as much, I wanted to make that distinction because I hear a lot about court-ordered evaluations, right?

Dr. Noah: Sure. One of the things about court-ordered evaluations is it’s nice. My understanding is there’s no confidentiality in that [00:14:00] context because there’s a court order already. So that overrides any of that. When I’m hired by a defense attorney, I have to be sensitive to attorney-client privilege. And so, the client I’m evaluating, they’re not my client, they’re the client of the defense counsel, but those two have a relationship with each other. And so the information that the defendant communicates is protected by that attorney-client privilege. And so I have to be aware of that and not violate that relationship that they have with each other.

And there can be exceptions. If somebody says, I’m going to go back to my cell and cause serious harm to somebody or I’ve been abusing children for the last 20 years and you’re the first person I’m ever telling. My understanding is that that can trump attorney-client privilege.[00:15:00] So it makes things a little bit different when you get pulled into these cases and there’s not a court order. When there’s a court order, there’s no confidentiality. It’s my understanding.

Dr. Sharp: Yeah. That matches everything that I’ve heard and experienced as well. Let me drill down on that attorney-client privilege question just for a minute. Can you explain that a little bit more? When you say attorney-client privilege, it almost sounds like the information that the defendant is sharing with you, are you referring to how you cannot share that back to the attorney? How does confidentiality work in that situation?

Dr. Noah: If I’m hired by defense counsel to look at their client, I’m [00:16:00] working for defense counsel. I’m working for them and I’m absolutely going to report the information that I get on their client back to them. And then they’re going to decide, they’re going to basically function as a gatekeeper as to where the information goes.

Let’s say they want me to look at competence to stand trial and it turns out that I think that their client is competent and they don’t want that to be shared, they can say, hey, you know what, we don’t want you to write a report and just sit on this. Where this issue seems to come up more is when in, it comes up in civil cases a lot there like a personal injury case and they want to know, hey, do you think that so and so has been negatively affected by somebody else’s actions? And a lot of times, those lawyers in their personal injury setting, [00:17:00] they want to know what you found before you share it with anybody else but I definitely am reporting back to the attorney who hired me to let them know what I learned. And then they usually make a decision as to where it goes from there.

Dr. Sharp: Are there ever cases where the attorney may not share all the information with you that they know about their client?

Dr. Noah: Yeah. That’s an interesting issue. And we talked about that in the book a little bit. Sometimes for strategic purposes, defense lawyers don’t want the prosecution to know everything about their client. Let’s say they want me to address a certain forensic referral question like competence to stand trial or risk for future dangerousness in the community or whatever the case is, and I feel like I need certain information [00:18:00] to properly address that referral question and they don’t want to give it to me, then I would actually be obligated to document that as a limitation in my report, you know what I mean?

The way I think about it when I’m being hired as an evaluating expert, even though I’m working for one side, I think of it as like a little scientific experiment. I’m going in to address some question that this lawyer is asking without any allegiance to them. I need to do it my way. I need to take what I know from my field and my profession to properly and to the best of my ability, address that question. And if they have information that they don’t want to give me, I would need to talk about it if it was really important.

Dr. Sharp: Certainly. [00:19:00] You’re hinting at one of the forms of bias that you talk about in the book as well, which I also want to hold. I want to have a whole conversation about different types of bias that come up in forensic evals, but I appreciate you talking through this. It seems like a complex world to navigate. There’s so many factors that could get in the way of an objective evaluation.

Dr. Noah: No, Jeremy, it is really complex. You and I spoke a while ago, and one of the words that I used to describe how I feel when I do this work is I’m constantly feeling humbled because there is so much to know and it’s very easy to feel [00:20:00] overwhelmed by all the information that you don’t know, all the twists and turns that can pop up in these cases. Just because I do forensic evaluations doesn’t mean I can do every kind of forensic evaluation. There’s a lot that I do not know how to do and it would be just way beyond my tether range, if you will. If I were to try and do some forensic work, I can only do some stuff.

Dr. Sharp: Right. I think humbling is a good word for it. Yeah. This process, even just doing testing in private practice, I think it’s constantly humbling how little we really know and how challenging it can be to pull together someone’s history and come up with meaningful recommendations. [00:21:00] There’s so much we don’t know or can’t know. It’s been an interesting journey to work through that.

I don’t know if you felt this, but I know for me, I came out of graduate school like, assessment is amazing. I love this thing. It’s so concrete. It gives us answers right away. We know exactly what is happening with someone. And then over time it’s just been this downward slope of confidence, that the more I do it because I get less certain of the outcome and it’s a lot more gray than it sometimes seems on the surface.

Dr. Noah: I would absolutely agree with you on that. And I think one of the risks that we run, certainly when we’re in private practice is like we’re operating in a little vacuum where we don’t always get a lot of feedback about our work. And we can assume that we’re doing a great job and we have it all [00:22:00] figured out and years can go by and we’re doing the same old thing that may not really be working that well.

One of the issues that comes up for me in this regard that I think is so fascinating is, this really is more of a treatment-oriented assessment question but it’s still an interesting issue, which is the desire to always help people. People come in to see us in a treatment setting for an assessment and we feel obligated to make a diagnosis or say they have such and such problem and therefore you need such and such treatment. And what I’ve learned and really come to appreciate and by the last, I’d say 10 years, is that sometimes they’re fine and the best thing we can do is just say, hey, you don’t have any problems. There’s nothing. You don’t need any treatments. You’re good.

Dr. Sharp: Sure. It seems counterintuitive but [00:23:00] absolutely true in some cases.

Dr. Noah: In some cases, yeah.

Dr. Sharp: Sure. I want to get into something that you mentioned two times now, but you’ve used the term treatment evaluation. I know that there are different types of work in the forensic setting. So there’s a treatment evaluation, there’s expert evaluations and maybe even two more. Could you just briefly run down the types of evaluations that we might do in this setting?

Dr. Noah: Yeah, so we talked about this in our book. What I think of as a treatment-oriented assessment is one directed at really trying to help somebody and you’re billing insurance generally. Sometimes there’s private pay but that’s one of the ways to think about it is you can bill insurance and if you’re trying to [00:24:00] improve their life somehow, maybe you’re letting them know if they have some kind of neurodevelopmental disorder or some kind of psychological disorder and you’re going to recommend strategies to improve their life, but at the end of the day, you’re working for them and you’re really an advocate in many ways.

You’re maybe not as much of an advocate as say a therapist who’s really an advocate but you’re still an advocate because you’re using your assessment skills to help them. So maybe you are as much of an advocate as a therapist. I don’t know. I think the relationship is probably not as intimate as it as it is with a counselor, with a therapist. So that’s treatment oriented.

So then, a forensic evaluation, which just means legal oriented, you’re not working to treat anybody. You’re working to help the people making decisions in the legal [00:25:00] system make a better decision. To me, that boils down to a judge or juries. And so they need someone who has expertise in a certain area to come in and shine a light on the issue that they maybe don’t understand as well. And then after we’ve shine our light on this issue, then they can go, oh, okay, now we can make a better legal decision.

Dr. Sharp: A situation that I find myself in relatively often and other clinicians in our practice are those evaluations that start treatment oriented where people come to our private practice to get evaluation. And then six months, 12 months, 24 months down the road, that evaluation is getting pulled into a legal proceeding for one reason or another. Maybe it’s a custody thing, maybe the kid gets in trouble or the adult gets in trouble or arrested or whatever. I’m [00:26:00] curious how to navigate that just from the clinician’s standpoint where we maybe didn’t go into it with the assumption that this was going to end up in court.

Dr. Noah: That’s the best question you probably could have asked. We cover this in our book. Shane and I have published some stuff that talks about this in other settings.

So let’s pretend that you do a treatment-oriented assessment on a kid. You meet his parents, you diagnose ADHD, you make recommendations, and you have this rapport with the family and you recommend whatever you recommend to try to make his life better. They really like you and they trust you. And then [00:27:00] like five years later, he gets caught up in the criminal justice system and now he’s facing felony charges and they’re thinking, well, hey, Dr. Sharp would be the perfect person because he knows my son. Let’s get him to do a forensic assessment or let’s get him involved in this case because he really understands my son really well.

One of the problems that can happen there is, and I’m not saying you did this, using you as an example, you established rapport with them and you established a relationship with them as a helper, as someone who’s really trying to be an advocate, help make their life better. If then all of a sudden the defense lawyer is saying, hey, will you give us an opinion about whether or not so-and-so is competent, for example, you’re changing roles? You’re going from being like, I’m an advocate and I’m on your side and I’m trying to help heal you [00:28:00] and make you better to now, okay, guess what, I’m not really that person anymore. Now I’m this other person who’s working for your lawyer, and I’m going to have all these other opinions about you, about other issues that I may or may not have really looked into. And I’m going to be talking, I could potentially be talking about you in a courtroom, and all that trust that you thought you had with me is now questioned and challenged, and all of a sudden it doesn’t really seem like you’re on their side anymore.

So that’s one of the issues that can pop up by switching roles, by going from a treatment-oriented evaluator to a forensic evaluator.

Also, when we’re asked forensic questions, there are specific things that we really need to look at and they’re legal issues. And we don’t really look at that when we do treatment-oriented assessments most of the time. You know what I mean? So like competence to stand trial a legal construct. It’s not a clinical construct. It’s like this legal [00:29:00] construct. And so we have to take these clinical skills that we’ve developed and somehow try to use them and map them onto this legal question.

If a treatment-oriented person tries to do that with whatever data they generated in a treatment-oriented setting, they’re going to be like a one-legged man in an ass-kicking contest, you know what I mean? They’re not going to have the information that they really need whereas if an evaluator is hired to go in from the get-go and say, hey, look, we specifically want you to look under the hood at this issue, say, competence to stand trial, then the evaluator is going to be very prepared and they’re going to know what they’re looking for and they’re going to be better equipped to use tools that help them measure that legal construct.

There’s more to be said about this but I don’t want to keep rambling, but it’s such a good question that I feel like it needs to be unpacked a little more. Can I say two [00:30:00] other things about it?

Dr. Sharp: Oh, absolutely. Yeah.

Dr. Noah: Okay. Because I’ve thought about this and as an evaluator, as someone with a Ph.D. in psychology, you’re going to have all this expertise.

And even though you are not being hired to address the legal question of competence, you do have expertise on why this kid has ADHD. And that could be valuable. And it could be relevant. So if you get dragged into court, let’s say you get subpoenaed and then you go talk to the client and the client’s like, yeah, it’s okay for you to go in and talk. I want you to talk about me. And so you decide to do it, or if there’s a court order for you to go in and you have to do it. You still have expertise. You’re not just a fact witness, I would argue. You’re an expert and you know about ADHD and you can certainly talk about ADHD as an expert [00:31:00] in a courtroom, but what I would not do is then, it’d be a bridge too far in my opinion to say, okay, therefore I think so and so is or is not competent. Does that make sense?

Dr. Sharp: It does. It gets complicated and I think for a lot of us who don’t live in this world, it can be hard to know exactly what role we are playing in these evaluations. So it is helpful to define it a little bit more and set some boundaries for what we can do. And you answered my question of, okay, what if we find ourself in that place and we are ordered to testify for whatever reason? How do we handle that and communicate with folks, either the court or the family or the attorney or whatever it may be if we are asked to?

Dr. Noah: My understanding is that a subpoena does not trump get back, right? And also too, there would be [00:32:00] like, well, I’m blanking on the word, the laws that we have in our states that basically parallel the code of ethics for psychologists, I can’t, it’s been a long day.

Dr. Sharp: was it statute?

Dr. Noah: No, I’ve been up since 4:00 AM, so I’m getting tired, but in any event, we all have these regulations that I’ll probably remember later in this conversation. And so if you get subpoenaed, you can have a subpoena quashed pretty easily because that doctor-patient privilege, in my understanding, is stronger other than just a subpoena, but a court order, my understanding is that that trumps everything. So if a court is [00:33:00] saying you have to do something, then it’s usually hard to go against.

Dr. Sharp: Sure. Let’s do a little more definition, and then I’d love to dive into some details of these evaluations. Can you talk just briefly about fact versus expert testimony or witness?

Dr. Noah: Yeah, I just thought of administrative code.

Dr. Sharp: There we go.

Dr. Noah: In this book, we talk about five different roles and you just brought up two of them. A fact witness is basically somebody who’s going to go into a courtroom and testify about things that they’ve seen and heard and experienced. They’re not going to be going in there pining-offering an expert opinion about an issue.

And so this is interesting because sometimes lawyers [00:34:00] might want to pull a treatment-oriented psychologist who did a big comprehensive neuropsychology, for example, or ADHD assessment on a kid, they might want to pull you into court and say, oh, you’re just a fact witness, you know what I mean?

In fact, witnesses tend not to get any kind of reimbursement. They don’t really have any special knowledge that’s going to enhance the decision-making process whereas an expert witness does. And so arguably that treating clinician, if they do get pulled into court, could say, hey, I actually am an expert and I actually do have a rate, and so on and so forth, but

So, a fact witness is really just somebody who’s testifying about things that they can see and hear and touch whereas an expert witness is somebody who has this specialized knowledge that sets them apart. You could be a mechanic who just knows a ton about an engine and maybe you’re going to go tell the [00:35:00] court about how an engine works or you’re going to be a mental health expert who knows about head injuries or whatever.

Dr. Sharp: Yeah. You mentioned that there are three other types of… What are the other?

Dr. Noah: What are they? Okay, so these are the five. So there’s an evaluating expert, there’s a record reviewing expert, there’s an expert consultant, there’s the facts witness that we talked about, and then there’s a treating clinician witness. And so when I get… 

Usually, the way it works for me is I’ll get hired as an evaluating expert and that’s the role where my job is to, like I said earlier, you’re going to do a little experiment. You’re going to go in and try to answer the question that the lawyer is asking, or that maybe the court’s asking you this question. You don’t know what you’re going to find. And you’re very [00:36:00] scientific and dispassionate. And you just go in and do your little study and then report back with what you learned. And that’s an evaluating expert.

And you could then become a witness. So if they decide they like what you said or if you’re required to testify, then you would then become a witness and you would testify about what you learned.

An alternative to that would be a record-reviewing expert, and this would be where you don’t do your own little study, you don’t do your own assessment. You might review the records of other people. Maybe a bunch of other people have done a bunch of assessments or maybe there are other medical records, let’s say you know about head injuries and so you’re reviewing medical records and then you’re going to offer an opinion only based on reviewing records. So that’s another role.

And then the other one is an expert consultant. A consultant is not going to be testifying. Actually, we’re actually getting into some good territory here, [00:37:00] Jeremy, because the consultant is the one who stays behind the scenes and literally is like on the defense team or it’s on the legal team, if you will, trying to help them win. So they might help with questions for cross-examination, cross-examining some other expert in the case, maybe some other expert didn’t do a great job in their assessment, and so you hire a consultant, and the consultant can say, okay, this is where they screwed up, these are the questions you need to ask them to really put them on the hot seat.

What’s really important here is that you don’t want to be a consultant and an evaluating or record reviewing expert who also testifies in the same case because you’re basically at that point, I’m going to use Ghostbuster’s analogy- you’re crossing the streams, [00:38:00] it’d be unethical to say, hey, I’m this passionate scientist who’s going to try to answer a question for you, but at the same time, I’m actually on your side and I’m trying to help you win your case. We can’t wear both of those hats in the same case.

Dr. Sharp: That makes sense.

Dr. Noah: Yeah. Where it gets confusing is, you could start out, they could hire you as an evaluating expert. They could say, all right Sharp, we want to know, is this person going to be dangerous in the community? And you go in, you do your assessment and you do all your testing and everything. You don’t write up the report and then you report back to them and you say you know what, yeah, this person is going to be a mess. They’re going to do bad stuff in the next two months. It’s not looking good. And they might say, we don’t want you to write a report. We don’t want you to be a witness, but we want to keep you involved in the case. Can you now work as a consultant? And so your opinion never really gets out there into the courtroom to [00:39:00] influence decision-making. You stay behind the scenes within that one case.

So that’s ethical but what you can’t do is say, start off as a consultant, and then they go, okay man, you’re really great. You really helped us out with all these questions for cross-examination and we can tear this other expert apart thanks to you. Can you now be a dispassionate objective evaluating expert and go assess so and so? That’s not cool. That’s unethical.

Dr. Sharp: That seems hard. Yeah. I would guess that there are people listening who are thinking, oh, this consultant role sounds great. I get to give an expert opinion without testifying and there’s really no risk to me. How do folks get into that line of work?

Dr. Noah: That’s what I want to grow [00:40:00] up and be. That’s interesting. I’m not going to name names but I can think of a handful of people that do a lot of this kind of work. And I think how you get that kind of work is through a lot of experience and probably doing a lot of really good quality work to where the lawyers know who you are. I’m not one of those people by the way. I’m not.

I don’t think I’ve ever been hired as a consultant ever. I hope I’m not getting that wrong, but I’m always just hired as an evaluating expert. And there have been two times where I’ve been hired as a record reviewing expert too, which I don’t like, but I had two cases where I was hired as an evaluating expert, and I found things that were inculpatory that [00:41:00] made the defendant look really bad and the lawyer was like, okay, you’re done. You don’t need to write anything up. You won’t be hearing from us on this case.

Dr. Sharp: Okay. Thanks, but no thanks.

Dr. Noah: Yeah, but no, there are some people out there that do the consultant gig. I have mixed feelings about it, to be honest. I don’t know. I just feel like it would be better to be hired, because everybody does this work differently. I would argue some folks would do it better than others. I think it’s more interesting to just have a second opinion from somebody who’s maybe better and then they test. You get both sides to testify irrespective of who hired them because they should be objective and they can both get cross-examined and then the decision maker or the jury [00:42:00] or the judge can make a better decision based on seeing these different perspectives. But I feel like its weird where you have someone who’s behind the scenes, who’s here do this and you’re going to really screw them off.

Dr. Sharp: Yeah. There seems to be a parallel between this kind of work and the psychologists who work in utilization management for insurance companies. Like how can we screw over another psychologist?

Dr. Noah: Yes.

Dr. Sharp: I’m being a little tongue-in-cheek.

Dr. Noah: Well, no and I think the argument that some of these folks have, which I understand is that there’s a lot of crummy work.

Dr. Sharp: Sure.

Dr. Noah: And I get that. I feel like a better remedy would be if you think you do better work, let yourself get hired and you go in and do really amazing job and talk about why the assessment you did is superior to the other person in a respectful way. There’s absolutely nothing wrong with that. [00:43:00] And then that would help the decision makers understand things better, but when you’re just like never having to go in a courtroom and never having to get cross-examined and just really have these cozy relationships with lawyers, I struggle with that.

Dr. Sharp: Sure. No, I can get on board with that. Okay. So I’m going to walk back everything I said about wanting to do that work. Maybe some people it fits. I could understand.

Dr. Noah: While we’re on this topic, I’ll just say, Eric Drogan, if you read any of this literature, super nice guy, super smart guy. He is got a law degree and he’s a forensic psychologist as well. He’s written about this dual role stuff, I think, better than anyone that I’ve come across. And I’ve always been really grateful. […] I think they’ve written stuff together and it’s been really [00:44:00] helpful.

Dr. Sharp: Great. I’ll put that in the show notes so that folks can check it out.

Let me transition to some more specific questions and maybe some applied questions around this process. I think I mentioned before we started recording that I’ve been doing these forensic adjacent evaluations where they’re not court-ordered, they’re not really involved in the legal process, but I am working with incarcerated individuals who are suspected to have some kind of mental health issue that is impacting their functioning. The idea is that we do these evaluations and make recommendations for community resources that could help these individuals when they are released.

Something I’m running into, and I’d love to get your thoughts on this is, among this population, the incarcerated population, there is such a [00:45:00] high rate of homelessness and mental illness, of course, and estrangement from family members. In a process that relies so heavily on collateral information and history, I’m curious how you navigate it when that’s not available, right? I think to a person I’ve worked with in this setting, there is no collateral, there is no family. There are very sparse records. The person is not a good historian. I’m curious how you approach it when that’s the case.

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Let’s get back to the podcast.

Dr. Noah: That’s another really good question. I think it’s important to try to get the information.

Dr. Sharp: Sure. Yes.

Dr. Noah: There have been cases where… You’re right. It’s hard to track some of these family members down and maybe you’ve already made it multiple attempts to call people and voicemail boxes are full and numbers are disconnected and you’re like, really. And maybe have a few more numbers to try. There have been times where I’ve been at that point and I’ve made that extra effort to get that last call in. And sometimes I’ll hit a gold mine; I’ll finally talk to somebody who gives me something that’s really valuable. And [00:47:00] later when I’m reading the report and testifying about it, I’m always like, man, I’m really glad I got that information, but then there are times where you’re right. You just can’t get it. And so, you would document it as a limitation. You’d say, hey, I tried, you document all the attempts you made and the dead ends that you ran into.

I would add, we talk about this in our book in the sense that, we talk about getting information directly from the person interviewing them, testing them, behavioral observations, reviewing other records, and then talking to other people, right? And so it’s like five kind of things that we emphasize.

I think historically, Lawi is one of the researchers who’s talked about a Tripod and it’s the interview, it’s reviewed records and it’s testing. And then we just throw in talking to other people and behavioral observations. So [00:48:00] we make it into a bigger Tripod. It’s not a Tripod anymore.

The last thing I would say on that one is, this is where I think that the cognitive testing is so valuable because you mentioned that the person you’re trying to assess is oftentimes is not a great historian. And you’re absolutely right. But if you are using good cognitive testing, sometimes it cuts right through all the BS if you’re doing it appropriately. And they could tell you, yeah, learning, I don’t have any problems learning. I don’t have any attention problems. Reading, oh yeah, I’m a good reader but if you test their reading, you test their memory, you test their IQ, right? And that’s why testing is so amazing because if it’s done appropriately, it’ll just give you this perspective that you just totally miss.

Dr. Sharp: Yeah, it’s hard to [00:49:00] beat the data, especially if you’ve got effort testing. Right.

Dr. Noah: Effort testing can be nice. Validity symptom and performance validity testing can be nice. There are limitations with it. That’s a long discussion. I feel like too many forensic clinicians are quick to say that somebody is a malinger just because they score below a certain cut point on a validity test. And when you really drill down into this, you see that, and we talk about this quite a bit in this book, you realize that there are people involved in the legal system, especially the criminal justice system where they’re not going to score above the cut point on the test, on the TOMM, for example. They might be close, but even on a damn good day, they’re never going to get over the cut point that you want them to get over.

Rather than [00:50:00] say, oh, they’re malingering, you have to go, well, let’s see. Okay. They were held back twice when they were younger; they were always in special education. There’s a history of severe trauma. We have an IQ that we’re pretty sure is accurate and it’s in the 60s and they’re scoring 38 on the TOMM and that’s the best they can do. It’s like, well, maybe they’re not faking that. Maybe they actually really, that’s like the best they can muster and they’re psychotic.

Dr. Sharp: Sure. Yeah, that’s a good point. And that’s like you said, a whole episode or three that we could probably do on effort testing and malingering and forensic assessment. And I would quickly get out of my depth honestly, if we started to dive into that without a lot of preparation.

That’s a good perspective I think, just to keep in mind. It makes me think of [00:51:00] the term, I suppose, of non-credible effort or suboptimal effort versus malingering, just straight-up malingering. And that there are lots of reasons why folks may not do well on effort testing that may not be just like straight-up secondary gain that’s overt or clear to them or to us.

Dr. Noah: Absolutely. Well said.

Dr. Sharp: Yeah. I’m going to make a note to line somebody up for a podcast on malingering in adults.

Dr. Noah: You know who you should try to get is Kyle Boone.

Dr. Sharp: Okay, great.

Dr. Noah: If you can get her. She’s busy. I don’t know her personally, but I’m a huge fan of her writing, her scholarship. She’s got a lot of game.

Dr. Sharp: All right. I wrote it down. I’ll check it out. Thank you.

[00:52:00] So let’s see, gosh, so much to dig into here. I wanted to chat with you, I love the section that you included on how bias can influence our decision making in forensic evaluations. I think this is just such a huge topic in our field in general. If you could, I would love to touch on some of the main forms of bias that come up that you think are particularly relevant in the forensic setting and how we might work with some of those or overcome some of those.

Dr. Noah: Absolutely. Well, I think one of the first things I would say is I would give a shout-out to [00:53:00] David Faust. I’ve never met him either, but I’m a big fan of his writing. He’s done an amazing job talking about bias in forensic settings. He’s edited the book Coping with Psychiatric and Psychological Testimony. That’s just tremendous. And he’s got some chapters in there that are great. There’s another article from Boehm et al, 1993, that also is an amazing little gem of an article that talks a lot about biases.

And so in our book, we have a table and I’ve borrowed from folks like that. We’re standing on the shoulders of those other much brighter people or whatever. They’re more committed to their work. So some of the biases that are really interesting in this setting, there’s multiple, but I’ll try and hit on some good [00:54:00] ones. One of them is overconfidence. There’s some literature that says that confidence doesn’t correlate with accuracy.

Dr. Sharp: Right.

Dr. Noah: And so like if you get super-duper confident, you got to wonder if it’s just not lining up with what’s really going on. And it’s funny because I was getting cross-examined last week by a lawyer and he was giving me a hard time because my opinion was not, there was some gray area. I was willing to have an opinion about the ultimate issue and not be gray about that but when you pulled it apart, and I talked about some of the limitations of my opinion, there was gray area and he didn’t like that. He wanted me to confidently and boldly state [00:55:00] how it is and make life easier for them to make their decisions. And the fact that I wasn’t doing that and I was acknowledging gray area and limitations to him was a point of vulnerability in what I was saying. And so I think it’s important as a clinician working in this arena to just be aware of the limitations of what we know. That’s one really big one.

Dr. Sharp: Yes. That’s great. Do you have any strategies or tips to cut through that confidence because I think that is, for some of us, like reflexive, that it’s actually counterintuitive when we are less certain about something, we tend to go too far in the other direction to as almost like a defense mechanism and be more confident. I’m curious how you or maybe others [00:56:00] that you know work through that when it’s such a risk for the work that we do.

Dr. Noah: I have a quote for you, man. I just came across this quote the other day and it’s so on point. It’s from this book, I never read the book but I got the quote from somebody else, Zen and the Art of Motorcycle Maintenance. Have you ever read that book?

Dr. Sharp: I’ve never read it but of course, I’ve seen it all over.

Dr. Noah: All right. I’ve never read it. So this is from him. It says, no one is fanatically shouting that the sun is going to rise tomorrow. They know it’s going to rise. When people are fanatically dedicated to political or religious faiths or any other kinds of dogmas or goals, it’s always because these dogmas or goals are in doubt. And that’s what you just said. When we’re unsure, we go in the other direction of being overconfident.

I think for me, every time I get my ass handed to me [00:57:00] by life or maybe by a lawyer during cross-examination, that helps me grow, frankly. You don’t want to get crushed to the point where you can’t operate anymore but I think it’s important to be able to jump into different arenas and get your ass handed to you and learn from it and grow from it. For me, that helps me stay humble.

Dr. Sharp: That will do it. I know when I was reading through the examples of bias, one that really jumped out to me in this setting is the, like, I think I would be very prone to subjectivity depending on who hired me. That seems really hard. I’m very curious how [00:58:00] you and others maybe handle that, like staying objective when you’ve been hired by a side to implicitly or explicitly support their case.

Dr. Noah: All right, man. You’re hitting on some interesting stuff here. Years ago when I was first really trying to dive into the forensic psychology literature and just really trying to learn it and just being very open to the ideas that I was reading about. It was when I was going through the board certification process for forensic psychology and I was just like, okay, I have to take all of this in. These people know so much more than I do. And I just took it all in and I swallowed it all in and I really wanted to do exactly the books were saying to do.

I remember this one lawyer that I’d never worked with called me and he was cursing. He was just a down-to-earth guy [00:59:00] but he was cussing a lot. Not because he was angry, he was just a really laid-back kind of guy. And he was telling me about this case, and I was so uptight because I was just trying to do everything that these authors had written about. And I was like, who is this query? He is so unprofessional and he’s cussing and da, da, da, da. I’ve since worked with this lawyer on multiple occasions over the last X number of years, and I now really like him a lot. And I’ve developed this appreciation for him and I see him very differently.

I mentioned that because I think there can be this by-the-book way of doing things that we aspire to and then there can be the reality way of doing things. And I think the two have to learn how to shake hands with each other and get to know each other. And so I can’t get to the point with [01:00:00] him or other lawyers where it’s just like, oh, we’re buddies and I’m here to come up with an opinion that’s going to make you happy. I have to have the kind of relationship with them where I can be myself and not be super uptight, but continue to be professional.

And so I don’t know, I would say, Jeremy, that it’s an ongoing process for me to where I’m constantly having to reassess myself and be like, wow, am I eating too buddy-buddy with so-and-so, is this affecting the work? Okay, that kind of a thing. I guess I don’t have a formula for it. I feel like it’s this constant process.

Dr. Sharp: Yeah. Well I appreciate you just being transparent about it. That is honestly easier to connect with than if you were to say, well, here’s the formula. Here’s exactly how you remain objective. That makes sense. That’s a [01:01:00] human process and an ongoing process where the best we can do is just try to be as aware as possible that it could happen and check ourselves against peers or internal sense, whatever it may be. It’s hard work. Fighting bias in our work, I think is one of the biggest challenges that we have.

Dr. Noah: One of my, I wouldn’t say one of, I would say he is my favorite scientist, is a guy named John. He’s the most cited living scientist right now. He’s insane. He publishes and one of the areas where he publishes in is the quality of medical research. And I think he’s actually written some pretty critical articles about psychological research. He’s a methodologist. He’s a statistics guy. He is a genius. And I was listening to an interview with him one time and he was talking about bias. He was just saying, oh, he’s [01:02:00] constantly just having to fight against his biases. He’s like, I just have all these biases and they’re just everywhere. And I just…

Dr. Sharp: It’s validating. I’m going to go check them out. You’ve given me a lot of good resources this podcast to go dig into. I appreciate that.

Well, I know we’re starting to get close time-wise, which is wild. I do want to talk about testimony a little bit. We put a pin in that earlier in the conversation, and I want to come back to it because this is one of those places that for non-forensic folks, I think strikes a lot of fear in our hearts. And maybe even for forensic folks, it’s maybe not the most comfortable thing. Maybe I’ll start with that question that we touched on earlier, which is just, for you personally as a psychologist who’s a little more introverted and not super confrontational, how have you made [01:03:00] this work in your life when it seems like a lot of the process of testimony is being confident and confrontational at times?

Dr. Noah: What helps me is realizing it’s not at all about me. Some of these cases, especially the criminal cases, the civil cases too because maybe there’s a medical malpractice case where somebody’s been seriously injured but most of these folks that are involved in these legal battles, they have it rough. They’re dealing with some really difficult circumstances. And so my ego and my pride, [01:04:00] it just means nothing compared to what they’re going through and what they face. And so it’s not at all about me at all. And that really helps me because it’s like I’m serving a purpose that’s bigger than me.

I know that that might sound sanctimonious and weird, but it’s true. You’re trying to help the legal system work better. And I’ve found that and I’ve gotten better at this as I’ve matured as a man, but the less my ego is attached to what I do, the easier it is to do good work and to also to let it go, and be like, okay, I did what I needed to do because that was my responsibility and then I’m going to let it go.

Dr. Sharp: That’s a good philosophy. That feels very zen. Yeah, do what you can; [01:05:00] let it go. It’s not about the ego. I like that. I’ve heard similar things at the times when I’ve had to testify and ask for some advice. Folks have said, yeah, it’s not about you. Don’t take it personally and that will help keep you grounded.

Dr. Noah: Yeah.

Dr. Sharp: I wonder if there are other strategies, ideas, things that you like to keep in mind in testimony to do the best job that you can. Anything that we might be able to take away as far as…

Dr. Noah: Yeah, absolutely and this goes back to my background as an endurance athlete, in bike racing you have to stay fueled up, right? Like if you’re going to do a five-hour race, you have to be [01:06:00] eating during the first part of the race so that you can be there at the end when the race really starts. And there’s a lot that goes into that.

What I’ve noticed in depositions that I’ve been involved in, where I’ve been deposed, a lot of times these lawyers don’t, they’re like drinking coke and maybe there’s like peanuts and like snacks that are brought into the court reporter’s office and they’re not really attending to the fact that we’re going to be in there for a long time whereas I’ll bring really healthy food in with me and just stay fueled up so that I can go for hours and hours. And I know that might sound silly but I think it matters.

If we’re talking about court testimony and it’s not going to be as long, you’re not going to be snacking in the courtroom but you can still bring your own food and make sure it’s good, healthy food and make sure that physically you’re [01:07:00] taking care of yourself so that when you get in there, you have good fuel so that your brain works well.

The other thing that is obvious is you got to just know your shit. Like really know it. And then sometimes this actually is an interesting issue, testimony, you can get paid a lot to testify and sometimes the testimony is short, like maybe it’s an hour and a half or something, however, there’s so much preparation that goes into it. And so, I will prepare for a long time before I go in there so that when I am hitting the ground running the actual testimony in the courtroom, I can just answer questions very quickly and very smoothly. And that’s because there’s this iceberg of preparation under the water that took place. I’m not one of those people that can just go [01:08:00] into a courtroom and just charm everybody and come up with brilliant answers without any preparation. I have to prepare.

Dr. Sharp: That’s fair. I think that’s goes back to that comment you made at the beginning of the interview around preparation being pretty key, like for a bike race, you prepare and you put in the work, and then when it comes to game time, you are ready to go. Have that confidence. Can you think of any, I’m going to put you on the spot a little bit. Can you think of any core stories from testimony that stick out for you and of course, how you might have done it differently if you could or how you might have overcome?

Dr. Noah: Absolutely. That’s a great question. So the first time I testified was the fall of 2002. I was in my pre-doctoral internship and my wife was [01:09:00] pregnant with our son, who’s now 20, Cruz, awesome guy. Anyway he was in his mom’s belly at the time and I was pre- doctoral intern making like $13,000 a year and just so stressed out and just sewing over my head.

I literally got pulled into this civil commitment hearing with a client that I was working with as a therapist. So I was an intern doing therapy with this individual who had bad psychosis and the psychiatrist in the case initiated some civil commitment proceedings and so I got pulled into this hearing and I didn’t know what I was getting into. I was already so stressed out because I was an intern and my wife was pregnant and I was broke. And [01:10:00] so I got into this, it wasn’t even a courtroom, it was just some conference room that they were using for these proceedings. And I knew nothing. I didn’t know what was going on. And I can remember when it was my turn to testify, I just felt like the judge was looking at me like, dude, what’s your problem? I think I was like vapor locking. I don’t know what I said, but I was so uncomfortable. I did not know why I had to be in there.

Dr. Sharp: That sounds terrible. I feel that in my stomach even just hearing you describe it.

Dr. Noah: Yeah.

Dr. Sharp: Well, looking back, is there anything that you could have done differently or was this just part of the deal? Was this just the ritual, the hazing or whatever of getting into this world?

[01:11:00] Dr. Noah: Oh man, that’s funny. I think some people probably enter this world in a more, they’re more pedigree. I’ve never been particularly pedigreed. I came from this world of bike racing where I had no plans of being an educated person. And so I’m kind of a mutt. I’m a runt, I’m like a wild dog run down the streets, but there are other people that are, they come from more civilized backgrounds and they do postdocs and they have great supervision experiences and God bless them but I got thrown to the wolves. That’s how I got into it.

Dr. Sharp: Well, that’s good for you that you stuck with it, that that first experience didn’t make you completely run and [01:12:00] hide from the forensic world. It turned out.

Dr. Noah: Yeah. I don’t know why I didn’t but that’s how it was for me.

Dr. Sharp: Yeah. Well, if nothing else maybe that is validating for young professionals or folks who are just waiting into this and it’s part of the process. That’s going to be hard go ahead. You’ve done such good work over the years. And this book that you have written is fantastic and there’s so much good information in there even for someone not in the really forensic field, it’s fascinating. Don’t take this the wrong way, but I’m actually reading it because I’m just interested in it, not even being an expert in this area. So I can only imagine what it offers to folks who are actually well versed in [01:13:00] this material.

Dr. Noah: Well, I appreciate you saying that, Jeremy. And let me just briefly thank the other authors. Shane Bush is an author on this. I’ve learned a lot from Shane. He’s extremely accomplished and published professional, knows a ton about this stuff. Nicole Schneider, Nicole was just an absolute champ the case summaries. The second half of the book is a series of case summaries and she was an absolute champ on writing tons of these things. She wrote most of these case summaries. She took lead on that. And then Scotia Hicks, she actually has a law degree and so it’s always valid. And she’s a friend of Nicole’s. They did graduate school together, I think. In any event, it was nice to have her perspective as a [01:14:00] lawyer to weigh in on some of the stuff that we were saying. So I don’t want to take… It’s not my book. It’s our book.

Dr. Sharp: I love that. Well, it’s an honor to have you on the podcast and have links in the show notes, of course for a lot of the resources you mentioned. If folks want to pick up the book, that will be very easy. Just check out the show notes. This has been illuminating and I feel like we could talk for a long time, but I just appreciate that you’re here to have this first conversation with me. Thanks.

Dr. Noah: All right. Hey Jeremy, I appreciate the opportunity to get to talk about our book. I’m excited about it. I use it. I go back and study it a lot and I find it very helpful. And I would love it if it’s helpful for other people.

Dr. Sharp: Yeah. Absolutely, I love that you share that, that you read [01:15:00] your own book. My kids tease me sometimes because they’ll get in the car and I’m listening to my podcast, they’re like, dad, why are you listening to your own podcast? I’m like, I have tons of experts on this podcast. I got to go back and listen. I learn tons from these people. So that’s also validating. I appreciate you sharing that.

Dr. Noah: Absolutely. Keep on listening to yourself, man. You’re doing a good job with this podcast.

Dr. Sharp: I appreciate it. Thanks. Well, take care, and until next time.

Dr. Noah: Okay, take care, my friend. Have a good one.

Dr. Sharp: All right, y’all. Thank you so much for tuning into this episode. Always grateful to have you here. I hope that you take away some information that you can implement in your practice and in your life. Any resources that we mentioned during the episode will be listed in the show notes, so make sure to check those out.

If you like what you hear on the podcast, I would be so grateful if you left a review on iTunes or Spotify or wherever you listen to your [01:16:00] podcast.

And if you’re a practice owner or aspiring practice owner, I’d invite you to check out The Testing Psychologist Mastermind groups. I have mastermind groups at every stage of practice development: beginner, intermediate, and advanced. We have homework, we have accountability, we have support, we have resources. These groups are amazing. We do a lot of work and a lot of connecting. If that sounds interesting to you, you can check out the details at thetestingpsychologist.com/consulting. You can sign up for a pre-group phone call and we will chat and figure out if a group could be a good fit for you.

Thanks so much.

The information contained in this podcast and on The Testing [00:17:00] Psychologist website is intended for informational and educational purposes only. Nothing in this podcast or on the website is intended to be a substitute for professional, psychological, psychiatric, or medical advice, diagnosis, or treatment. Please note that no doctor-patient relationship is formed here, and similarly, no supervisory or consultative relationship is formed between the host or guests of this podcast and listeners of this podcast. If you need the qualified advice of any mental health practitioner or medical provider, please seek one in your area. Similarly, if you need supervision on clinical matters, please find a supervisor with expertise that fits your needs.

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