Tuesday, December 06, 2011

Exposure to Family Violence and Brain Changes in Children--A Research Update


My last post highlighted the neural structures and processes involved in the development of parental alienation. This note summarizes some recent research about the connection between exposure to family violence and changes in brain functioning in children.

Researchers in the UK had noted that fMRI scans of combat veterans showed increased activation (when compared to veterans with NO combat exposure) in two areas of the brain: the amygdala and the anterior insula. These are two deep brain structures known to be active in the detection of threats, fear, survival responses, (amygdala) and of feelings of disgust or empathy, (anterior insula). These two deep brain structures have mirror neuron connections as well, leading to internal brain representation of external events, just like those noted in the post about parental alienation from last week.

This latest research compared the brains of two groups of children, neither of whom had any symptoms of mental health problems. One group of children came from families with documented histories of family violence; the other group of children had no such history. On a task that involved identifying faces as either male or female while in the fMRI scanner, the children with a history of "exposure to family violence" showed brain activation patterns similar to those of the veterans with combat experience--that is, activation of the two brain areas--the anterior insula and amygdala. The children with NO history of such exposure did NOT show similar activation on their fMRI scans.

This ground breaking research suggests that merely witnessing family violence leads to changes in children's brain function similar to those experienced by combat veterans. It is well known that post-traumatic stress disorder, PTSD, is characterized by "hyper-vigilance",  and the chronic over activation of the neural processes involved in detecting threats and reacting to them. PTSD sufferers experience chronic fear and anxiety as a result of the over-activation of these same two brain structures (and some others).

What is not currently known is how much "exposure" is needed to result in these neural changes, nor why some children seem to avoid the long term consequences of anxiety and hypervigilance and distrust that other children experience from their exposure to family violence.

What is clear, even at this early stage, is that children are highly susceptible to measurable changes in brain function from exposure to family violence. The implications for family lawyers and courts would seem to include:

1. Children don't have to be physically injured by family violence to be adversely affected--just witnessing family violence is sufficient to cause adverse brain effects.
2. Intervention in escalating family violence at the early stages and removing potential for children being exposed to such scenes can prevent the emergence of those changes in brain function that increase the risks of development of anxiety  and other maladies.
3. Leaving divorcing spouses together in the same house raises these risks for children since other divorce research has documented that nearly 100% of divorces involve at least one episode of physical violence between spouses. It is in the best interests of the children that their exposure to family violence be prevented.

Wednesday, November 30, 2011

More on psychopaths: New research show their brains really are different!

Viewers of TV shows like "Criminal Minds" have been saying this for years when viewing episodes of the incredible, sadistic crimes committed by villains identified as 'psychopaths" by the BAU good guys: "There is something wrong with those guys". Well, it turns out, there is.

The new research
New research just completed by researchers from the U of New Mexico MIND institute, and a group from the U of Wisconsin School of Medicine compared the brains of 20 true psychopaths (not antisocial personality disorder) with 20 matched convicted criminals  in the Wisconsin Department of Corrections facility who did not fit the strict criteria for psychopathy. Using two different brain imaging technologies, fMRI and diffusion tensor imaging (DTI),  Dr. Kent Keihl (who I visited last summer in Albuquerque) and Dr. Michael Koenigs found that psychopaths had identifiable structural and functional deficits when compared to regular criminals.

Functional magnetic resonance imaging (fMRI) is like a movie of the brain at work. Diffusion tensor imaging is designed to image the white matter (the connections) deep in the interior of the brain. fMRI analysis demonstrated that "ventromedial prefrontal cortex (vmPFC), the part of the brain responsible for sentiments such as empathy and guilt, and the amygdala, (a small structure deep in the center of the brain) which mediates fear and anxiety,, were NOT as active in psychopaths as in the convicted criminals who were not psychopaths. Further, the DTI images showed that the connections between those two critical brain regions were also less in the psychopath group.

The reason this matters

It has long been known that psychopaths lack empathy and are extreme risk takers, exhibiting abnormally low anxiety and fear. A common description includes the inability to learn from experience, poor impulse control, and a lack of remorse. Until now, these behavioral and character traits have been attributed to family history, substance abuse, and sometimes to "genetics" but without an adequate neuro-scientific foundation. Sentencing and "rehabilitation" decisions have been based on personal beliefs (or biases) and sometimes on psychological testing, which is only marginally better. Now, if  this research is confirmed by larger studies (the Wisconsin project is ongoing-personal communication), there will be a scientific neuro-imaging technology available for identifying the anatomical deficits inherent in psychopathy.  

The application to family law will provide courts and litigants with a non-fakable, reliable imaging technology to identify psychopathy and prevent the emotional and potentially violent damage that these guys (most psychopaths are male) do to children, their own or someone else's. The new research documents why treatment is ineffective and the psychopathic behavior is ongoing--their brains are both anatomically deficient and functionally defective in areas responsible for impulse control and empathy.  Until science advances further so that this kind of brain damage can be treated and corrected, courts will be limited to protecting the past and future victims of these individuals when they are identified.

One additional implication that Dr. Kiehl mentioned during our visit last summer: if these guys really are brain damaged, and now that can be scientifically proven, then can they be held responsible for their criminal acts under traditional criminal legal theory? Interesting cases ahead...



Journal Reference:
  1. Julian C. Motzkin, Joseph P. Newman, Kent A. Kiehl, Michael Koenigs. Reduced Prefrontal Connectivity in PsychopathyJournal of Neuroscience, 2011; 31 (48): 17348-17357 DOI: 10.1523/JNEUROSCI.4215-11.2011

Monday, November 07, 2011

Mirror neurons and parental alienation

"Parental alienation" may be simpler to accomplish than you think.

Some recent leading edge research using fMRI (functional Magnetic Resonance Imaging-a scan of the brain at work) to investigate the patterns of brain activation in observers of sporting events yielded confirmation of a long held belief of neuroscientists: watching an emotionally engaging event is indistinguishable, at the brain level, from actually participating in it. Same neurons fire, same brain regions are activated, same physical sensations are registered. Or, to be more concrete, watching your favorite football team on TV activates your brain just as if you were playing the game yourself. An entire class of brain cells, called mirror neurons, has been discovered, and the their apparent function, documented many times, is to "mirror" in the brain what the senses detect in the world. Great for football fans, potentially hazardous for children living with conflict.

It has long been assumed by many family lawyers that when children exhibit behaviors indicating that they are afraid of, or angry toward, a non-custodial parent, and when those lawyers represent a parent who complains that they are the victim of a campaign of sustained "brainwashing" by the custodial parent, it must be true. How else could the little angel have become such a strangely fearful and angry child? Now we know.

Children are way more interested in the interaction of their parents than the most rabid football fan. Their very existence depends on the outcome of the conflict leading up to and through the divorce. It's safe to say that the children's mirror neurons are activated every time they witness anger, bitterness, verbal insults, and especially violence between their parents.  When one parent is suddenly absent for long periods of time (between periods of possession for the non-custodial parent, for example) and the remaining parent continues to behave in the same angry, resentful, bitter, and critical fashion toward the absent parent, the child's mirror neurons are working overtime, reproducing in the little brains the sensations and emotions that they see, hear, and feel in their crumbling, unstable divorce world.

With this crucial understanding of the underlying neural processes at work, it's easier to understand why a conscious, intentional campaign to "alienate" the child from the non-custodial parent is NOT necessary to create a fearful or angry "alienated" child. All that's required is opportunities for the child to observe the parent with possession to repeatedly talk about or act out the alienating scenario. The child's mirror neurons will do the rest.

This little piece of science also explains why experts who interview children as part of custody evaluations rarely find a "smoking gun" pattern of intentional, pre-meditated parental brainwashing. Children nearly always deny that either parent is actively programming them to dislike a parent. As this research demonstrates, it is not necessary for a parent to "program" the child--all they need to do is act out their disdain, rage, and accusations in the presence of the child. Mirror neurons in the child will do the rest.

One important difference between children of divorce and football fans: children don't have a favorite team--no matter who "wins" in this game, the kids lose, because they are rooting for both "teams".  So if those mirror neurons are firing when cheering for one favorite team, imagine how many more are firing when both of your teams are playing each other! It is this over-activation that has led to the standard instruction to divorcing parents to keep their conflict and the communication AWAY from those little eyes and the mirror neurons they are connected to in those little brains. Those little brains are not only overloaded by this lose-lose scenario they are literally a part of, they are permanently altered by the over-stimulation and trauma.

Parental alienation is not just a social problem; it's an insidious disease with permanent consequences for developing brains.

Friday, October 28, 2011

More on psychopaths and divorce:research update

While most people think about criminals when they see the word "psychopath", psychopaths do appear in family law cases more often than you might expect. Research has established that the incidence of psychopathy in the general population is about 1 in 100, but the rate of psychopathy among corporate executives is nearly 4 times that rate, meaning one of every 25 divorces of corporate executives (at least) has a psychopath as one of the parties.

Several characteristics of psychopaths, well documented through hundreds of research studies are relevant and problematic in family law cases, namely:
  • Superficial charm--these guys are VERY likable and convincing
  • Lack of conscience--they will do virtually anything to get what they want, regardless of court orders or laws; 
  • Lack of empathy--they treat spouses and children like objects, not people, and can be unbelievably cruel and unfeeling
  • Chronic, persistent lying--they will lie about anything, anytime
Because most people are not suspicious or skeptical, psychopaths find it easy to manipulate people, even lawyers, into believing their lies. The really good psychopaths haven't been caught. 

New research though is providing tools for detecting psychopaths. A recent study, reviewed here: http://www.livescience.com/16585-psychopaths-speech-language.html highlights some detectable differences in the speech patterns of true psychopaths (they are a subset of the DSM IV Antisocial personality disorder diagnostic group) . They are:
  • a lack of emotion in their story telling
  • speaking in terms of cause-and-effect when describing their actions
  • in their conversation, focusing their attention on basic needs, such as food, drink, and money
  • and , most telling, a higher than normal use of "uh" and "um" in their conversations.
This last feature, which reflects the high level of cognitive effort required to manufacture a lie, is supported by the leading edge research using fMRI scans to detect deception. That brain-focused research has clearly established that areas of the brain that are responsible for deception are identifiable and correspond to those areas of the brain known to be responsible for the generation of ideas, rather than memory retrieval, are activated in response to attempts at deception. (Some leading edge research now underway by Dr. Kent Keihl and his colleagues at MIND at the U of New Mexico promises to lead to an fMRI diagnostic test for psychopathy in the near future.) The psychopaths' efforts to generate lies is reflected in the high levels of "ums" and "uhs" in their speech, as well as in the way they justify their behavior through the use of "because" or "so that" in their conversation.

The lessons to be learned for family law practitioners and their clients are these:
  • Psychopathy is more likely among successful executives than any other group except career criminals
  • Psychopaths, regardless of their success, position, or status, will commit crimes and violate orders without hesitation or remorse during their divorces
  • Psychopaths are detectable by paying close attention to their speech patterns
  • Children of psychopaths are at risk because the psychopath lacks normal empathy that parents have for their children
  • Most mental health professionals are untrained in the recognition of psychopathy, and reluctant to identify it if they see it, sometimes out of fear of retaliation by the psychopath
  • Spouses of psychopaths need protective orders in place; when (not if) the PO is violated, contempt proceedings need to be initiated immediately, and lead to jail time, if possible; if not, the spouse needs protection.

Tuesday, October 18, 2011

The Neuropsychology of Evidence: A Quick Summary

A picture is worth a thousand words...


A recent post in a trial litigation blog I follow added an interesting factoid to my knowledge of human information processing that's relevant  in the courtroom:


Human beings acquire 85% of their knowledge through their vision.


This interesting fact lines up nicely with these related factoids which are gleaned from hundreds of research studies on human memory.  Human beings REMEMBER:


30% of what they only HEAR                  (the traditional lawyer's limitation)
65% of what they HEAR and SEE          (the multimedia advantage)
90% of what they INTERACT with      (the video game enthrallment factor)


This is easy to understand if you remember the differences in the size of the physiological receiving channel for each sense and the dramatically different speeds at which they process incoming information.


Auditory information is processed at 15-50 bits per second.
Visual information is processed at about 250 Million bits per second  PER EYE.
Somatosensory data processing rates are less, but there are many more channels, so the total amount of data processed is larger than for the visual channels, most of it out of our conscious  awareness.


And, just to make it interesting, only 0.01 % of all brain activity is experienced CONSCIOUSLY--the vast majority happens outside our conscious awareness.


So what does all this esoteric science mean for trial attorneys? Three lessons occur to me. They are:


1. The less time you have, the more demonstrative visual evidence you need.
2. Anytime you can, let the jury interact with (handle your evidence).
3.  Just talking should be your last option, no matter who the trier of fact may be. (Judges are people too)



Tuesday, September 20, 2011

Emotional Barriers to Rational Decision Making in Divorcing People Adds to Their Long Term Financial Burden

All divorces have these three components: legal, emotional, and financial. (Couples with children obviously have an additional challenge, co-parenting with a former spouse.) A recent conversation with a talented and experienced family law attorney has prompted me to address a common frustration for family law attorneys, whether the divorce is litigated or collaborative: how to get the client to recognize the "big picture" of the reality of the family's financial situation and make decisions that will serve the LONG TERM best interest of the client.

As a litigation consultant specializing in divorce for 25 years, and a former director of a church-sponsored divorce recovery program for many years, I have had a ring side seat to the drama of the emotional journey of hundreds of people as they navigate their way through their own divorces. I have also been a consumer of the research on divorce, economic, sociological, and psychological, and used it to help me understand the process and varied outcomes of divorce and to apply the lessons to help my clients and their lawyers.  I have identified a few common myths which I think are widespread in our culture and which are barriers to good decision making in divorcing people, both men and women. Here are my top 3 myths:

Myth Number 1: Family court is the forum for me to get justice for all the "wrongs" committed by my spouse during marriage--legal, emotional, and financial. 

Even before "LA Law" appeared on TV with it's fictionalized depiction of divorce litigation, Myth Number 1was widely believed and firmly held. Unfortunately, as those of us to actually practice in the family law arena know, this is NOT true. I personally have witnessed a large number of divorces prolonged for months or even longer because one of the spouses refused to believe that a trial in their divorce would NOT provide a forum where the judge would punish their spouse for leaving them or treating them badly during marriage. The cost to both parties was not only thousands of dollars in unnecessary legal fees and a reduction in the value of the estate, but additional emotional scars for both parties (and their children).

Myth Number 2: Since my spouse was unfaithful (or maybe just a narcissistic jerk), I will get nearly all of the marital estate (especially since I was a faithful wife and stay at home mom) and my financial situation and lifestyle will be just like it was before the divorce. 

While this totally mistaken belief is easier to understand, it is no less UNTRUE. The economic research on life after divorce is very clear: nearly all women are less well off after divorce. (The only exception to this rule occurs in couples with marital estates of $10M or more, in my experience.)  Consequently, every dollar spent litigating directly and negatively impacts the economic well being of the wife after divorce. Sometimes the litigation is necessary to uncover assets hidden by a selfish and vindictive spouse, but this is the exception, not the rule. Usually, in my experience, unnecessary litigation is driven by the traumatized spouses desires to punish the spouse who leaves and files for divorce, and by a misguided emotional attempt to remain married as a way to avoid feeling abandoned and alone.

Myth Number 3: My lawyer's job is help me with the emotional as well as the legal and financial challenges of my divorce.


TV and movies have perpetuated this myth but didn't start it. The sign on my many lawyers' doors says "attorney and counselor" and many clients take that to mean "mental health and divorce counseling", it appears. As a graduate of top flight professional mental health graduate program and a top law school, I can tell you for certain that only one person in my law school class thought their professional role as a lawyer would include dealing with the emotional challenges of their clients--me. People who want to become lawyers (even family lawyers) are fundamentally different that people who want to be shrinks--lawyers want to help their clients by being an advocate for them; "shrinks" want to help their patients by helping them feel better, and their professional training and ethics are consistent with those roles (and frequently at odds with the law and expectations of the legal system in divorces). Lawyers are legally obligated to be "zealous" advocates for their client's LEGAL positions, so they are. Few lawyers have the inclination or the training to effectively help their clients with their emotional challenges.  Consequently, clients with this mistaken expectation (Myth Number 3) find their lawyers to be either insensitive or uncaring. Only in rare cases is either of these impressions accurate.

Given the prevalence of these myths about divorce, what can be done to improve the quality of decision making by clients in the midst of world-shaking emotional distress? Here are my suggestions to lawyers and their clients:

1. Lawyers should confront these three divorce myths in the first meeting with their client to productively manage client expectations and reduce the chances for misunderstandings later. Most likely, this message will have to be delivered again, repeatedly, since stress interferes with learning, especially with UN-learning. Women need to understand that their lifestyle is going to change, and NOT for the better.

2. Clients need to avoid seeking legal advice from friends and especially from mental health professionals, and their lawyers should remind them of this early and often. Well meaning friends and well intended therapists are nearly always wrong about what the law is and what can or should happen, and for some reason, mental health professionals are the worst source of divorce-related legal advice. Don't ask; don't listen. Ask your lawyer.

3. Clients need to facilitate their own emotional divorce and recovery. Find a good divorce recovery program and complete it. If this isn't enough support, seek counseling or therapy. Don't expect your lawyer to be your emotional support--let them do their job and handle your LEGAL divorce.

4. Clients vary widely in their information processing preferences and abilities, especially under stress. When possible, the lawyer should outline the client's legal and financial options BOTH on paper and verbally along with the short and long term consequences of each option spelled out in detail. Then, the client should have an opportunity to go home, consider the options in a familiar and relaxed setting, and sleep on the decision (and discuss the options with friends and family if they wish) before the next meeting with lawyer to finalize the decision and execute it. Few strategic decisions in the divorce process require instant decisions.  This is especially true of the "litigate or settle" decision which has such significant long-term financial implications for most women.

5. For a small group of clients who are emotionally fragile, frequently overwhelmed, black and white in their thinking, and usually very angry and resentful, none of these suggestions will be of much use. Continued therapy, including antidepressants, may eventually lead to a period of relative stability when clear and rational thinking and good judgment emerges--when it does, encourage the client to decide and sign off on the offer, recognizing that when the client's mood shifts again, the moment will be lost indefinitely.  Seek assistance from a divorce-savvy mental health consultant.

What are some of the other divorce myths that you encounter?

What strategies have you found useful in promoting good decision making in divorcing people?

I look forward to your comments.


Tuesday, September 13, 2011

Research shows that witness training improves the accuracy of testimony

Traditionally, both judges and lawyers looked on witness "coaching" with considerable suspicion. Judges were concerned about lawyers subverting the judicial process by using their witnesses as a "mouthpiece" for the lawyer to improve their cases. Lawyers were suspicious of other lawyers for the same reason. No one considered the plight of the witness very much.

Fear of speaking in public is the single phobia endorsed by more than 2/3 of all respondents in surveys of the US public--no other fear comes close to these numbers. Testifying in court is not only "speaking in public", it is also accompanied by the very common fear that testifying falsely will lead to a jail sentence (I know of no research detailing the prevalence of this myth, but my guesstimate is that nearly 2 out of 3 witnesses believe it.) Lawyers who live their professional lives in the courtroom frequently don't appreciate how intimidating the setting and the jargon can be to someone experiencing it for the first time. And, when the witness believes that their children are on the line, the fear and pressure rise exponentially.

The research cited below nicely highlights the primary value of witness training: IMPROVED accuracy of the testimony! What Ellison and Wheatcroft found was that training witnesses about the rules and tactics of cross examination led to a REDUCTION in errors in responding accurately by more than 66% to complex questions on cross examination. Accuracy of answers to simple cross examination questions improved by 52%. Just as importantly, witnesses reported having the confidence to ask the cross examiner to clarify questions.

More than 25 years of teaching people how to testify effectively has convinced me that witness training, done right, not only helps the witness but significantly aids the administration of justice. This research confirms that belief. Of the hundreds of people whom I have trained, NOT ONE has ever said the training about how to testify effectively, especially how to handle cross examination, was a waste of time. Not one.

Now that the advantages of witness training to the system as a whole have been documented, there is no reason not spend the time to provide witnesses with the tools they need to testify accurately. Justice would seem to require it.


Ellison, L. & Wheatcroft, J. (2010). "Could you ask me that in a different way please?" Exploring the impact of courtroom questioning and witness familiarization on adult witness accuracy. Criminal Law Review, 11, pp. 823-839.

Monday, August 22, 2011

The Undeniable Advantage of Juror Questionnaires over Voir Dire

For more than 25 years, it has been apparent to many litigation consultants that a questionnaire is a more effective, efficient, and valid vehicle for eliciting TRUTHFUL responses to issues of concern to attorneys during jury selection. Now a recently published research report confirms what we have believed, and adds some additional detail to the comparative advantages of jury questionnaires over verbal voir dire in jury selection.

This latest research reported here [(Flores, D.M. (2011). Methods of expanded voir dire and written questionnaires: Experimental results on juror self-disclosure and implications for trial practice. Court Call, Summer, 2011, pp. 1-6.)] is notable for comparing answers on a jury questionnaire to 3 different kinds of voir dire: group voir dire (the most common practice in the US), individual questions to jurors seated with the panel in court, individual questioning of prospective jurors with only judge and attorneys present in court, and finally, individual interviews of prospective jurors in a separate room with judge and attorneys present.

Compared to information provided by prospective jurors on a jury questionnaire, jurors FAILED to provide candid answers to group voir dire 67% of the time, to individual questions from a judge 50% of the time, to individual questions from attorneys 33% of the time, and to private voir dire questions away from other panel members, 20% of the time. Most importantly, jurors were willing to (and did) provide the information withheld during voir dire on juror questionnaires.

The implications of these findings are profound for Texas family law attorneys (Texas is one of two states with jury trials in divorce and custody cases.). As Texas courts have become more crowded with the increase in population over the last 20 years, judges are increasingly limiting voir dire in jury selection to group and individual questions of the panel in court, with time limits of one hour per side becoming a common practice. Many judges are reluctant to allow the use of jury questionnaires, while some are adamantly opposed and refuse to allow their use.

This new research may lead to a new avenue of appeal in family law jury cases. When 2/3 of jurors are withholding relevant information from attorneys during group voir dire, the judge's failure to allow more valid and reliable ways of learning about the attitudes of prospective jurors (when juror questionnaires have been requested and denied by the court) raises the question of whether parties have been denied the due process to which they are entitled under the Constitution.

Jury consultants have been teaching attorneys about the barriers (physical, emotional, social, and psychological) to complete and honest self-disclosure by prospective jurors during voir dire in the courtroom for many years, and suggesting strategies to overcome those barriers and make it possible for panel members to be completely honest. We (litigation consultants) have long recognized that questionnaires were the best solution to this problem, and the new experimental research confirms what trial practice has demonstrated many times: Jury questionnaires have no equal in the search for the 'truth' about juror attitudes.

Wednesday, August 17, 2011

Mediation Strategies--Making the First Offer--Don't Try to "Sell" It!

There's an opportune time to do things, a right time for everything on the earth: ... A right time to shut up and another to speak up...
Eccleciastes 3 from "The Message" by Eugene Peterson


A new study published in the Journal of Personality and Social Psychology strongly suggests that making too strong a case in presenting an opening offer in a negotiation is counter-productive. The study looked at negotiations where the parties made an opening offer with no explanation or persuasive argument and compared those negotiations to situations where the opening offer was accompanied by a persuasive argument in support of the terms being offered.

The study found that parties who made an opening offer without "selling" it ended the negotiations with results that were CLOSER to their opening offer than parties who made an offer and then tried to "sell it" to the other side. The explanation appears to be that "selling" the opening offer provokes counter-arguments by the other party and leads to counter-offers that are farther away from the opening offer than when the offer is presented without a sales pitch.

This study has significant implications in family law litigation and settlement negotiations. Both clients and attorneys would be well-served to leave the advocacy for another day when making an opening settlement offer. However difficult it might be to make the offer without a 'pitch', it is clear that restraint is going to save the client some money and get them more of what they want.

Bottom line: There is an opportune time for advocating, and opening negotiations is NOT it. When making an offer--leave the arguments for the courtroom and help your client get more of what they want.

Here's the reference for the research:

J Pers Soc Psychol. 2011 Aug;101(2):245-55.
Negotiation as a form of persuasion: Arguments in first offers.
Maaravi Y, Ganzach Y, Pazy A.
Source
Faculty of Management, Leon Recanati Graduate School of Business Administration, Tel Aviv University.

PMID: 21500924 [PubMed - in process]

Monday, August 08, 2011

Preparing to Mediate vs Preparing to Litigate- How Family Lawyers Can Use Client-Centered Strategies to Provide the Best Legal Representation

The cases are stereotyical: a successful middle aged man decides to divorce his wife of 20 plus years after a long period of acrimony and mutual animosity. Both spouses hire very competent lawyers and while the temporary support and financial issues are settled quickly, visitation for the children cannot be resolved, leading to temporary hearing. Following the hearing, discovery begins in earnest, and because of the custody/visitation issues and an exchange of inflammatory allegations, the parties' depositions are scheduled. Attorneys for both sides are surprised by what they find out during THEIR OWN client's depositions, and scramble to adjust to the "new facts" and prepare for mediation. The first mediation fails, as each side clings to unrealistic expectations and anger-driven rigidity and retaliation. In their candid and off the record discussions, attorneys for both parties agree that the case "needs to settle" but neither one can get the clients to do the right thing. Sound familiar?

The trend in family law litigation continues to move in the direction of fewer trials and more alternative dispute resolution, like mediation and, to some extent, collaborative divorce. This change away from litigation and trial preparation to mediation places family law attorneys under a new set of pressures early in the life of case: to discover both the strength and weaknesses of the client's case, to get the client to perform well in temporary hearings and depositions, and to uncover leverage points in the opposing party's positions prior to mediation in order to be in the strongest possible position at mediation. In other words, mandatory mediation policies have effectively "front-loaded" the case preparation tasks for family law attorneys, and created a greater sense of urgency for getting the "complete picture" sooner rather than later.

There are client-centered strategies available to manage these difficult and challenging cases. Here are a few of the strategies that have worked for my clients and their lawyers:

1. Take the time early in the case to get a complete history of the client, the client's spouse, the marriage, and each of the children. This interview should last 2-3 hours, and the goal is to get the client comfortable and talking, and let them "tell their story". Most clients expect that they will get a chance to "tell their side" in court (they won't, we all know) so this will be their one and only opportunity. Clients don't know what is legally relevant, but they will tell you all kinds of relevant facts, if given the chance. Most importantly, they will reveal the challenges and weaknesses in their own cases and minimize the surprises that can really hurt their cases later.

2. Emotional divorce and legal divorce proceed on entirely different timelines. When their is a conflict between the emotional divorce and the legal divorce--the emotional divorce ALWAYS trumps the legal divorce, and can stop the legal process in its tracks. When clients exhibit any of these characteristics, some kind of professional help is needed for the client ASAP: a hurt and angry wife still stunned by allegations of infidelity, a husband who describes his wife as an addict (food, drugs, shopping, alcohol), a wife who describes her husband as "abusive" and has been physically assaulted or emotionally beaten down, when either spouse is either a borderline personality disorder or narcissistic. Get professional consultation from a consulting expert about how to best support your client. Failure to address the emotional divorce factors is the greatest cause of mediation failures in my experience.

3. Take the time early in the case to explain in detail the litigation process, terms of art (motion, hearing, pleading, mediation, discovery etc.), and the sequence of events and a timeline. A typical divorce in North Texas takes 12-15 months, but most clients think tell me they think it will take about "6 months". This is just the first of the unrealistic expectations that clients have stuck in their heads, and managing and correcting these expectations is critical to maintaining the relationship with the client, and in making the process less stressful for client and attorney.

4. Before any hearing or deposition, take the time to teach your client how to be an effective witness, and the rehearse their testimony and cross examination with them. I have NEVER had a client tell me that rehearsing for their testimony in a temporary hearing or deposition was a waste of time--not one, not ever. Attorneys live in courtrooms and are comfortable there; clients are uniformly terrified, and consequently, without training and practice, are uniformly terrible witnesses. Clients not only willingly pay for time to prepare, they genuinely appreciate learning the rules and developing confidence to perform well.

5. Before mediation, explain the process to the client. Talk about the usual barriers to reaching an agreement, and have the client consider BEFOREHAND, and tell you in explicit detail, their bottom line position on all the custody and property issues. This will create an opportunity to manage the client's expectations, and prevent misunderstandings between attorney and client that can undermine successful mediation.

In summary, family law attorneys can provide the highest quality representation to their clients by recognizing that early, thorough, and considerate consultation which meets the CLIENT'S needs early in the divorce litigation process can make the entire experience less stressful for both attorney and client.

For more information or to arrange a consultation, call Dr. Karlson at 972.839.2394 or send email to karlson.kevin@gmail.com.

Tuesday, July 26, 2011

Divorce-Related Trauma in Children: Exposure to Family Violence Leads to Changes in Brain Function

My last post highlighted the neural structures and processes involved in the development of parental alienation. This note summarizes some recent research about the connection between exposure to family violence and changes in brain functioning in children.

Researchers in the UK had noted that fMRI scans of combat veterans showed increased activation (when compared to veterans with NO combat exposure) in two areas of the brain: the amygdala and the anterior insula. These are two deep brain structures known to be active in the detection of threats, fear, survival responses, (amygdala) and of feelings of disgust or empathy, (anterior insula). These two deep brain structures have mirror neuron connections as well, leading to internal brain representation of external events, just like those noted in the post about parental alienation from last week.

This latest research compared the brains of two groups of children, neither of whom had any symptoms of mental health problems. One group of children came from families with documented histories of family violence; the other group of children had no such history. On a task that involved identifying faces as either male or female while in the fMRI scanner, the children with a history of "exposure to family violence" showed brain activation patterns similar to those of the veterans with combat experience--that is, activation of the two brain areas--the anterior insula and amygdala. The children with NO history of such exposure did NOT show similar activation on their fMRI scans.

This ground breaking research suggests that merely witnessing family violence leads to changes in children's brain function similar to those experienced by combat veterans. It is well known that post-traumatic stress disorder, PTSD, is characterized by "hyper-vigilance",  and the chronic over activation of the neural processes involved in detecting threats and reacting to them. PTSD sufferers experience chronic fear and anxiety as a result of the over-activation of these same two brain structures (and some others).

What is not currently known is how much "exposure" is needed to result in these neural changes, nor why some children seem to avoid the long term consequences of anxiety and hypervigilance and distrust that other children experience from their exposure to family violence.

What is clear, even at this early stage, is that children are highly susceptible to measurable changes in brain function from exposure to family violence. The implications for family lawyers and courts would seem to include:

1. Children don't have to be physically injured by family violence to be adversely affected--just witnessing family violence is sufficient to cause adverse brain effects.
2. Intervention in escalating family violence at the early stages and removing potential for children being exposed to such scenes can prevent the emergence of those changes in brain function that increase the risks of development of anxiety  and other maladies.
3. Leaving divorcing spouses together in the same house raises these risks for children since other divorce research has documented that nearly 100% of divorces involve at least one episode of physical violence between spouses. It is in the best interests of the children that their exposure to family violence be prevented.

Thursday, April 14, 2011

Some thoughts about the value of attorneys

Background:
I am a member of the Collaborative Law Institute of Texas and on an email discussion group of collaborative practitioners discussing issues in collaborative divorce. The moderator posed a question to the group in a recent post, and I was inspired to respond to his question

"How do we explain to the clients what they do? Are they necessary? Is it "really even" CP if there isn't a team?.....'

Those questions never seem to get asked about the attorneys. It seems to be simply a given that the parties in dispute MUST HAVE attorneys. But what do the attorneys do?


Here's my response addressed to Carl Michael Rossi, the moderator:

cMr,

your post has provoked me to stop lurking and respond.

First, some disclaimers—though degreed in both law and psychology, and collaboratively trained, I have not made a single dollar in legal practice (I work as a consultant to divorce attorneys and make my living when divorces are litigious, NOT collaborative).

Couples who have the ability to resolve difficulties productively do NOT divorce-so we never see them in our professional roles. Those without those critical skills (and some others) do divorce, but cannot do what is necessary to clear even meager legal hurdles TOGETHER well enough to get divorced. They need help to do that. Many clients literally are unable to speak for themselves in a way that will lead to a resolution and need an advocate who can speak for them in the midst of a conflict. (Admittedly, blindly partisan, traditional litigious advocacy can make the dispute less likely to be resolved, but I am talking about a kinder, collaboratively informed advocacy here.)

We all have a vested interest, reflected well/poorly in public policy and the law that puts boundaries around the terms under which we will let people divorce, particularly when kids are involved. No lay person I know has a clue about what those boundaries are, even after they read the Family Code in their jurisdiction. An “agreement” that gives all the property in the estate to one party leaving the other party destitute is clearly NOT inside the boundary, to make an extreme example.

In this arena, lawyers not only have no peer, there is no viable alternative in the vast majority of cases (some small number people are capable of DIY divorces). Nonetheless, it continues to be my considered opinion, as a former law student/grad student and former law professor/psychology professor, that law school curricula do NOT provide the kind of skill building opportunities for that equip lawyers nor psychologists for the legal realities of professional practice, particularly in the collaborative arena. At the same time, MHPs have an incredibly na├»ve and paranoid view of the law, for the most part, and many lawyers have few of the interpersonal and facilitative skills needed for collaborative practice and a disdain for the “fuzzy” expertise of MHPs, for the most part. Self selection in both professions, and the professional training in both professions, as currently practiced, will continue these unfortunate trends.

I have found through about 10 years of teaching future lawyers and MHPs together, in one cross-disciplinary graduate level course in the same classroom, that these prejudices in both professional groups can be overcome through education and personal experience, and that both groups can acquire both skills and a new appreciation for the value of the other. I know that collaborative practice experience has the same beneficial effect.

Collaborative practice is the nexus of this challenge. Both legal and interpersonal skill sets are needed but both must be valued and taught, and professional prejudices must be overcome. It can be done. Both lawyers and MHPs will always have a contribution to make in divorces and collaborative practice is a dramatic improvement in the way that both professions can help.

My two cents…