fMRI Research Update: Spousal abuse causes physical changes in the brains of victims

In many high conflict divorce cases, the pattern of conflict that began as a verbal disagreement escalates in a predictable way until one partner is physically assaulting the other. In a previous post, I reviewed the fMRI research that documented the brain changes in the children from merely witnessing domestic violence (DV) in their families. This post is devoted to the spouse/victims of domestic violence and what we know about the effects of DV and treatments for its symptoms.

Few family lawyers would be surprised to learn that many victims of domestic abuse suffer from post-traumatic stress disorder (PTSD), the same malady that afflicts many combat veterans. The experience of talking with one domestic violence victim is usually enough to sensitize most family lawyers to the resulting anxiety and fear-driven symptoms and behaviors that can result from prolonged exposure to the cycle of abuse (most abusive relationships last an average of 7 years before the victim gets out). What we now know is that the damage is not just emotional--domestic abuse, just like combat, causes identifiable and measurable changes in the brain's structure and function that are evident in fMRI scans of victims. That means the damage is physical and the abuse changes both the physical shape of the brain AND affects the way it functions.

Just as the treatment of combat-related PTSD has proven to be challenging and frequently ineffective, the treatment of domestic violence-related PTSD is less than optimal in its effectiveness. A reasonable summary of the available research, using the latest and most effective cognitive behavior therapy (CBT) for trauma for battered women (CTT-BW) suggests that treatment is about 50% effective. It is this documented lack of treatment success in nearly half the victims that led to the fMRI studies to try to identify underlying brain pathology that was interfering with CBT effectiveness.

What the fMRI scans of these traumatized women revealed was identifiable changes in structure and function of three areas of the brain: the amydala, the insula, and the prefrontal cortex. These 3 regions are the same ones identified in the research of the combat PTSD victims and the kids from violent families, and they are dysfunctional in the same ways in all these victims. Brain centers for identifying danger are hyper-activated, and the brain center responsible for self-control and logical thinking (executive functions, as they are called) is not working like it does in normal people. This latest research noted that other brain areas (the anterior cingulate and posterior cingulate) were more active in people who were successfully treated, suggesting that the CBT was successful in activating these brain areas which led to reducing the fear-driven anticipation of something bad happening to them, leading to reductions in anxiety and other PTSD symptoms.

There are clearly family law implications for this growing body of research. Victims of domestic violence have scientifically verifiable physical brain injuries resulting from their abuse. These brain injuries affect how, and how well, the brains of these people function, and how well state of the art treatments will work to return them to normal functioning.  These findings have both child custody and property division implications which should be considered in cases involving document domestic violence.

Victims of domestic violence, both the adults and the children, are more like the victims of car accidents with head injuries than most of us would like to believe. Domestic violence doesn't just make its victims "nervous"; domestic violence causes brain damage to its victims that is very difficult to repair even with the best available treatments. And by the way, there is NO evidence that this kind of damage will "heal itself" when the victims are removed from the violence.

A number of practice tips come to mind as a consequence of these findings:

1. Longer exposure to abuse means greater brain damage for both the adults and the children. There is no "grace period". Getting away from the abuse is the first step, so the abused spouse and children must either leave or be protected by a protective order--now.

2. Effective treatment for the victim is available, may work, and takes a few (3-4) months. Get the victim into a program which offers CBT or CTT-BW as soon as possible while the litigation proceeds. An effectively treated victim is a much more rational and well functioning client (and parent).

3. Emphasize the physical brain damage effects of DV in settlement discussions about property division and visitation.

4. Insist on treatment for the perpetrator before allowing unsupervised visitation to prevent further "brain damage" to the children. (See my earlier post for details.)

Innovations in services for families: i360life

Many family law cases are complicated by the presence of a mental health issue. Sometimes it's substance abuse by one (or both) spouses; sometimes the drinking or drug use is a problem for one of the children in the family, and it is precipitated or exacerbated by the divorce and litigation. In other cases, a stay at home mom is depressed, anxious, and overwhelmed, and dad is working full time and perhaps traveling regularly for days at a time.

Once the divorce litigation is filed and the case is under way, neither lawyers nor the treating professionals have had many options for providing support to the patient and the family in these challenging cases; usually those choices were counseling or therapy once or twice a week, or inpatient treatment or rehab. Neither of those options provides much support for the children--once a week therapy for mom doesn't really help them at all in the short term, and taking mom away completely for a month or two leaves them abandoned to some relative or unfamiliar caretaker. Until now, there has been nothing in between these two traditional treatment options.

I recently visited with Dr. Kevin Gililand, the CEO and founder of innovation360 to learn more about their unique and innovative services. His rapidly growing company has individually customized and personally designed services to fill the gap between inpatient programs and one hour per week therapy. (See www.i360life.com for more information.)

Innovation360 provides a menu of traditional services but also provides "14 day coming home"  programs for transitions from inpatient programs to home, life management (in home support and structure for self-management, child care supervision, etc.), and ensuring a client's home is safe (and drug free) after returning from rehab. Their "life development"  program is unique in providing in home support by a mental health professional which includes social support, nutrition support, and activity support for as many hours as needed, from a few hours per week to 24/7 care.

As I thought about the most challenging cases I had worked on over the last few years, it became clear to me that this kind of 'in-between' service could have been an immense help to a number of families during their divorces. For many people, having someone with them every day to help them make better decisions and to avoid reverting to old and dangerous behaviors while putting their therapy lessons into practice in their daily lives would have been incredibly valuable and saved the parties a lot of money and grief.

For family law attorneys in this geographic area, this is a new resource for helping in your most challenging cases.

(I am not affiliated with Innovation360 in any way and have NOT been compensated for this article.)

Research update: What happens when you challenge a narcissist?

“Narcissus does not fall in love with his reflection because it is beautiful, but because it is his. ” WH Auden

As the dangers of narcissism (NPD) in the workplace (and the courtroom) become more obvious, the research into its manifestations becomes both more interesting and more useful. A recent study examined the behavior of normal and narcissistic job applicants in their initial interviews. Narcissists scored much higher in their initial interviews, primarily because their tendency to self-promote, their ability to engage the interviewers, and  to speak at length (about themselves, of course) conveyed confidence and expertise. At first glance, this style is quite successful, as these folks are really good at self promotion. None of this is news. What is news is what happened when the interviewers challenged the self promotional "puffing".

When challenged, the normal applicants tended to back down from their exaggerated claims of expertise. Not the narcissists. Rather than back down, the narcissists "doubled down"; they increased their efforts to look better! The narcissistic response to being challenged was "Oh yea, you want to challenge me? I am not just good, I am great!" My take on  this "unexpected" response is this: Any challenge to the expertise, knowledge, success, power, or brilliance of a NPD is perceived as a narcissistic insult, and must be defeated by a display of GREATER expertise, knowledge, success, power or brilliance. The response is to being "questioned" is both automatic and predictable.  NPDs protect their image at all costs. They have to.

In the context of family law litigation, this response to being challenged is evident every day in hearings and depositions. NPDs, who are usually but not always men, dramatically exaggerate their parenting skills, their career successes, their financial acumen, and their legal "expertise" in their self-serving testimony. When challenged by opposing counsel, they don't make admissions; they make even greater self-serving exaggerations. The reactions of their long-suffering spouses to these courtroom fabrications is equally predictable: they fear that once again everyone will be taken in by the NPDs gift of believable but factually distorted self promotion and that the case will be over before the lies can be uncovered.

The practice tip for family law attorneys is this: whether the NPD is your client or the other party, pay close attention when their self-promoting pitch is being challenged--if the response is "Oh yea, let me tell another story about how wonderful I am", an NPD is loose in your case, and truth will be hard to come by. Be very skeptical of ALL their testimony or you will get burned. Nothing is more important to an NPD than their image. Nothing.

Reference: University of Nebraska-Lincoln (2012, April 2). How do I love me? Let me count the ways, and also ace that interview. ScienceDaily. Retrieved April 9, 2012, from http://www.sciencedaily.com­/releases/2012/04/120402144738.htm

Co-Parenting: Using the CAPT system as a check up

“All happy families resemble each other. Each unhappy family is unhappy in its own way. "  Leo Tolstoy in Anna Karenina

As the legal system has moved increasingly to support the policy of "joint custody"  (joint managing conservatorship-JMC- as it's called in Texas), the reality is that physical "custody" or "primary residence" for the children still resides with mom in about 85% of divorce and custody cases. But regardless of where the children live, most (about 60%) of those kids will have regular visits with the non-custodial parent, and the two parents and their fractured family will have to cooperate in some  minimal ways to function as co-parents to their children. 

The research is very clear. Kids who have a working co-parenting arrangement suffer less and function better after the divorce than those children who don't have regular involvement from both of their parents. Regardless of the many challenges in co-parenting with a person whom you have recently divorced, the kids benefit if the co-parenting relationship is free from hostility; if the hostility between the parents continues, the children will suffer, many of them permanently harmed by the toxic environment in which they live. 

In between the extremes of no visitation, and the ideal of genuinely cooperative co-parenting without conflict, lies the vast majority of co-parenting relationships where mostly well meaning people do their best to make the post-divorce life of their children as good as they can. The question for many of them is: How are we doing and how can we tell?

Here's a simple four factor system for parents to use to evaluate their co-parenting   track record, and then use as a guide to making any improvements that may be needed. The four factors are: Communication, Affection, Power, and Task Completion.

Communication

Good communication between co-parents is open, not guarded, and information is neither withheld nor shared with hostile intent. Information about school, grades, activities, friends, health, pets, awards, school discipline, or emotional crises are freely shared in a timely and thoughtful and considerate way. The communication is appropriately "dosed" not to much and not too little.

When this level of open and free flow of information isn't yet possible, then the BIFF system is used: communication is Brief, Informative, Firm, and Friendly.

Affection

In healthy intact families, affection is freely expressed and warmly received. Children hug their parents and parents hug their children, and touch is used as a way to communicate genuine care and concern. In fractured families, children sometimes withhold public displays of affection for one or both parents because they are afraid that any expression of affection for one parent will be interpreted as disloyalty to the other parent. And parents can likewise use their overly exuberant displays of affection at times of exchanges of custody as a weapon aimed at their former spouse (and now co-parent). 

For co-parents the goal is to express affection to your children, and to encourage your children and your co-parent to express their affection without concern that it will be threatening. 

Power

In healthy intact families, power is usually shared by the parents, with decisions made by joint consultation. For some decisions, dad will have more influence and final authority; for others, mom's expertise will make her the more influential parent. In any case, the final authority will rest with the parents: NEVER with the children. In healthy families, children are NEVER in charge.

For most co-parents, the power arrangements have been settled by the terms of the divorce decree. The decree should spell out who has the "right" to make decisions about health care, counseling for the kids if needed, educational issues, and other matters. The decree is intended to be the "go to" if co-parents cannot cooperate. Regardless of who owns the right according to the decree, the more that co-parents cooperate in decision making, the better the children will do in the long run. 

In co-parenting families, effective use of power requires healthy communication (see above). The opportunity for children to manipulate parents, and to gain control to the point where it is bad for the children, is greatly increased when communication between co-parents is poor.

Task Completion

Healthy intact families get things done. Income is produced, bills get paid on time, household chores and maintenance are done regularly and without drama, homework is done early and checked by mom and dad, after school activities are enrolled, paid for, and kids get to practices and games (or rehearsals and performances) regularly and on time without drama. Life is busy, active, and productive.

The challenge for co-parents is much greater because of the physical (and emotional) distance between the parents. Task completion requires much more attention, focus, and discipline for both parents and children in fractured families. However, the bottom line for the children is the same: if the kids are doing their daily chores, getting to school, doing their work, getting to their activities, and getting to bed on a regular schedule, then this part of family life is being successfully accomplished after divorce.

If any of these four areas of family life are not working as well as you would like, then the first thing to do is to start with the first factor: communication. Have a chat with your co-parent at a Starbucks, and express your concern, and have a suggested solution. If the two of you have a history of conflict, then start with email rather than face to face discussions. Remember to use the BIFF system: keep the email Brief, Informative, Firm and Friendly. Stick to one issue at a time, don't do a long laundry list. Solve one issue, and then move on with a track record of success.

Your children will benefit from your efforts by having the advantage of two parents who work together for their welfare, just like kids from healthy intact families. Do it for your kids.

Research update: When the speaker is boring, listeners’ brains will fill in the “blanks”; The implications for the courtroom explained.

The world is not made of atoms, it is made of stories. Muriel Rukeyser

For those of us in the communication business, we know first-hand the power of stories.  Nothing can match the story for engaging the audience, and conveying a compelling, emotionally powerful message like a good story. Good stories always contain vivid detail, and they almost always contain dialogue.  Now some new brain research using fMRI (functional magnetic resonance imaging) scanning has provided some new insights into the power of stories.

Scientists at the University of Glasgow’s Institute of Neuroscience and Psychology scanned the brains of study participants as they listened to audio clips of stories: one group of very short stories was read in a monotone and was “boring”, the other was read with more inflection and was “vivid”. While listening to the “boring” stories, the level of brain activity INCREASED in areas of the auditory cortex interested in human speech, and the participants reported that activity was the brain’s “internal dialogue” filling in the missing information in the boring story.  This was particularly evident in stories with no “direct speech quotations” which the researchers interpreted as the brain “talking over” the boring speech with its own internal speech to speed up information processing and to prepare a response.

Direct speech is more engaging because it triggers neural links to facial expressions, other voices, and gestures and therefore conveys more information. It is this same process that makes reading novels so powerful, as the brain supplies cortical activation in a network of brain centers to “fill in” a complete sensory-motor “picture” depicted in the words on the page.  This is the inherent power of a story: it engages the whole brain in creating an internal representation of the message, and keeps the brain engaged in processing that message.

As any seasoned observer knows, the audience in the courtroom, be it judge or jury, frequently faces the challenge of listening to “boring” speakers. It has long been known that when the audience is bored, they “tune out”, but this research highlights the real danger of “boring” courtroom argument or testimony: the audience not only tunes out, they actually SUBSTITUTE their own more interesting internally generated story to “make up” for the boring audio they are actually hearing!! This may help to explain why fact finders report hearing “evidence” that was not presented when they explain decisions which seem so disconnected from the testimony and the issues. Boring is not just a nuisance in court; it’s a danger! Bored brains are not your friends.

The bottom line: The brains of any audience can be both your friend and your enemy. When the message is a story that includes dialogue and is engaging, those brains will be your friend as they are completely involved in processing the information in multiple sensory and motor channels that are activated by a good story. 

On the other hand, when the message is boring, that is, monotonic, monotonous, and lacking in direct speech and dialogue, those bored brains will be busy “filling in” the processing time with a much more interesting but internally generated story which will probably be loosely connected to the message, at best.

Here’s the link to the research report: http://medicalxpress.com/news/2012-03-brain-speech-quotes.html

Narcissism Research Update: new fMRI research can distinguish narcissism from normal

Narcissism is over-represented among people involved in divorces, and in my experience with hundreds of litigated divorce cases, narcissists are involved in a high percentage of litigated divorces. New research has further refined both the public persona and the unique brain characteristics of narcissistic people (NPD).

First, the public persona. Researchers compared narcissists identified by their personality test scores and compared their Facebook pages with more normal people. The results were just what one would expect. Narcissistic people had a greater number of "friends' than those who were not, a confirmation of the NPD tendency to have more but shallower relationships. Their profile photos tended to be more stylized and "glamour shot"-like than less narcissistic people. Finally, their posts tended to be more self-promoting. For more information look here: http://www.science20.com/news_articles/narcissists_can_be_identified_their_facebook_accounts_psychologists-32720

This research is consistent with some other research which compared annual company reports  and other company PR of narcissistic CEOs with those of companies run by normal people. As expected, the text of reports of narcissistic CEOs had more references to "I" and fewer to "we", had larger photos of the CEO on covers and press releases, and were generally more self-promoting than company promoting. There are a notable gap in salary between the CEO and the second in command in these companies as well, unlike companies without narcissistic CEOs.

Both of these findings provide tools for divorce attorneys to do some free discovery on clients or spouses in these public records and get a "heads up" about the personality functioning of these people without a mental health professional evaluation or records (most narcissists NEVER see a shrink, so records are rare).

Now for the look inside the brain of a narcissist. Research investigating the function of the medial prefrontal cortex (MPC) in maintaining self-perception compared normal and narcissistic people on their ability to identify faces after a brief shock. The shock had scrambled the MPC for a fraction of a second and the participants were shown pictures of themselves, friends, and known strangers during the interval when their MPCs were scrambled. Normal people could identify friends and strangers but NOT themselves, confirming the function of the MPC in self recognition. However, even when the MPC was "off-line", narcissists could still identify their own photos. The researchers concluded that narcissists have larger portions of their brains devoted to "ME" (wonderful, glorious, fabulous me, I might add) than do normal people. This research may be another step toward developing an reliable imaging (fMRI) diagnostic tool for identifying NPD. It may also identify the neural underpinnings of this very destructive personality disorder.

For more information about this research and other fMRI research on narcissism, look here: http://www.science20.com/brain_trust_diy_science_today039s_top_minds/definitive_fmri_test_narcissism-87875

NPD is an aggravating factor in a large percentage of very malignant divorces, so better diagnosis, especially of the non-psychological test variety, will be increasingly helpful in future child custody evaluations.

Begin With the End in Mind (with thanks to Steven Covey)

(an excerpt from my upcoming book: What YOU Need to Know about Divorce: Before, During, and After)

Three grand essentials to happiness in this life are something to do, something to love, and something to hope for.-Jose Addison

Having worked with hundreds of clients as a therapist, marriage counselor, divorce litigation consultant, child custody evaluator, divorce coach, and divorce recovery facilitator, one characteristic is shared by all of them: they didn't know what they wanted, either from the divorce or from life after divorce. This lack of a personal vision and long term plan for their lives is certainly not limited to divorcing people, in fact, it's a common occurrence in the general population. Many, if not most, people kind of stumble through life reacting to life events or bouncing from one obstacle to the next like the ball in a pinball game.

Even those people who are goal directed, and successful, are frequently temporarily left directionless by divorce.  Whether they initiated the divorce or were blind-sided by it, divorcing people are quickly sucked into the legal machinery and taken for a ride by a system over which they have very limited control. This leads even the most strategic thinkers and long term planners to revert to short term micromanagement and sometimes, to poor decision-making. The emotional stresses and losses occasioned by divorce lead to the development "tunnel vision", an actual, physical reduction in perceptual focus to a very narrow part of the world, exactly like that experienced by rookie soldiers in combat. Events outside "the tunnel" don't even register, and consequently, can lead to very bad surprises.

Adding to the difficulties caused by stress-induced "tunnel vision" is the tendency of the most intelligent and successful people to try to bring their professional skills to bear on their lawyer and the legal system in their divorces. Unfortunately, unlike in their usual professional or business realm, these folks "don't know what they don't know" in the legal arena,  so they muster their "leadership" resources and experience to try and "manage" their divorce litigation and the process of the emotional divorce of their spouse and children. The result is NEVER pretty. It is, however, always costly and damaging to nearly everyone involved and legally ineffective or even counterproductive.

The antidote to this self-destructive tendency to over-control is to stop, think, and carefully consider  "the end" of the divorce. Here are a few guidelines to help craft a personal vision and plan for you.

Thinking ahead, 5 years AFTER your divorce is final, get a pen and a piece of paper and write down the answers to these questions:

1. What kind of relationship do you want with your children? What kind of relationship do you want the kids to have with the other parent? What do you need to do now to get there? (if you don't know the answers, then get a mental health professional to help you figure it out)

2. Where do you want to live? What will it take in terms of financial resources to make that happen? What is your plan for achieving those financial goals?

3.Visualize your home--what does it look like, and what "stuff" do you want to have in it? (this will help you decide about personal property division in your divorce too)

4.What do you want to do for a career? Do you love what you're doing or is this a good time to re-think your career path?

5.  Are you willing to forgive your spouse, regardless of whose "fault" the divorce may be? Or do you want to "get even"? (Divorce court is NOT going to help you get justice or fairness as it relates to your treatment by your spouse, regardless of what you may think)

6. Most importantly, what would you say is the purpose for your life? Why are you on the planet? What do you want your legacy to be?

To begin with the end in mind in divorce, one must step back from the chaos of divorce and divorce litigation and consider your life, the big picture. If you know where you're going in life, then making decisions about your divorce is MUCH easier.  In each of the important domains of your life, knowing where you want to end up will help you decide what to do in your divorce that will eventually get you there, and to avoid taking steps that will lead in a direction away from your goals.

Covey is right-begin with the end in mind, even in divorce.

Divorce fallout: Research update-Depressed kids are vulnerable to bullying

New research just published in the prestigious journal Child Development has uncovered another factor in the rising epidemic of school bullying: children who are depressed in the fourth grade are more likely to be victims of bullying by the fifth grade. This appears to be true across the racial and socio-economic spectrum, as the study tracked nearly 500 diverse elementary aged children for 3 years. Being a victim of bullying did NOT increase the incidence of depression in the children in this peer-reviewed and well designed study.

For divorcing parents, this study is another wake up call to pay attention to the changes in your children during and after your divorce. Other research has found that children of divorced parents are 7 TIMES more likely to be depressed than children from intact families. These two facts together mean that if you are divorced (or divorcing), your child is at high risk for both depression AND for being bullied.

Depressed children show some (but usually not all)  of these symptoms of depression, according to WebMD:

• Irritability or anger.
• Continuous feelings of sadness, hopelessness.
• Social withdrawal.
• Increased sensitivity to rejection.
• Changes in appetite -- either increased or decreased.
• Changes in sleep -- sleeplessness or excessive sleep.
• Vocal outbursts or crying.
• Difficulty concentrating.
• Fatigue and low energy.
• Physical complaints (such as stomachaches, headaches) that do not respond to treatment
• Reduced ability to function during events and activities at home or with friends, in school, extracurricular activities, and in other hobbies or interests.
• Feelings of worthlessness or guilt.
• Impaired thinking or concentration.
• Thoughts of death or suicide.

http://www.webmd.com/depression/guide/depression-children

Frequently, the first sign of depression in children is a significant decline in their school performance as the difficulty in concentrating and sleep disturbances compromise the child's ability to function in school. Irritability at home, or with formerly "best friends", can lead to increasing social isolation in these kids, which divorcing parents may not notice in the midst of their own personal chaos. However, a marked drop in school grades should NEVER be ignored or explained away.

The depressed child is often inappropriately open in their conversations about their internal distress in situations that make other children (and some adults) uncomfortable, leading to labeling the kid as "weird" or "socially inappropriate" or "socially awkward" and further increasing the social isolation that can make the child vulnerable to being bullied.

The non-verbal behavior of depressed children is also noticeably different than healthy children, with slower movements, sad facial expressions, head hanging, and sometimes even a shuffling gate with slumped shoulders like they are dragging a heavy weight that is a signal to potential bullies that this kid is an easy target. Depressed children are likely to respond to the taunting that is the run-up to a physical attack by a bully with passivity or even silence, rather some appropriate and assertive defensive response.

So what can a concerned parent do?
1. Pay attention to changes in your child's school grades. If they start to decline, seek consultation at the school and get your child evaluated by a child psychologist.
2. Listen carefully to your child. If the content of their conversation (usually in the car on the way to some event) is more negative, pessimistic, morbid, or pained, especially if there is discussion of dying or suicide--take that seriously. Get professional help.
3. Talk to your child about friends. Social support is the best defense against both depression and bullying. Make sure your child keeps friendships intact during the divorce.

Depression is among the most treatable of all the emotional problems your child might have. Modern treatments, both psychological and pharmaceutical, are equally effective and can make a difference in weeks. If your child is depressed, or if he or she reports to have been bullied, don't wait--get them help while they are young. You can prevent the development of more serious problems in adolescence by acting now.

http://www.cnn.com/2012/02/08/health/depressed-kids-bully-magnets/index.html

Parental Alienation- How does it start?

A recent series of posts on a family law blog, along with some cutting edge fMRI research that is relevant has prompted me to do a short update on "parental alienation".

What is it?
Richard Gardner, a psychiatrist, coined the term in 1985 based on his observation of the behavior of children in divorces who were hostile toward one parent.
Gardner described PAS as a preoccupation by the child with criticism and deprecation of a parent.^[19] Gardner stated that PAS occurs when, in the context of child custody disputes, one parent deliberately or unconsciously attempts to alienate a child from the other parent. (Wikipedia; emphasis added is mine)
In my experience, both litigants and lawyers focus on the "deliberately" component, leading to a rapid escalation of conflict in the divorce and making dispute resolution and co-parenting more difficult, and lose sight of the damage to the child from the loss of a relationship with one parent.


There is ongoing controversy about whether PAS (which is a syndrome by definition) should be added to the upcoming DSM-V. In my view, PAS is not a mental disorder, won't make it into the DSM-V, and shouldn't.


What causes PAS?
In my view, after more than 30 years of dealing with divorces as a child custody evaluator, therapist, and now litigation consultant specializing in divorce litigation, PAS has multiple causes. In  order for PAS to develop, all these things must be present in the family PRIOR to divorce:


1. Personality disorders and/or bipolar/schizophrenic disorders in mom and dad or both. The personality disorders are usually of the borderline, antisocial, narcissistic, or histrionic varieties and are present long before the divorce. 


2. Black and white thinking by one or both parents (splitting-dividing the world into all good or all bad categories as a perceptual  and thinking style). This can lead to black and white thinking in the children PAST the age when it's developmentally appropriate (early elementary ages generally).


3. Vulnerability to feelings of abandonment in one or both parents.


4. Chronic inability to empathize with their spouse and their child in  one or both parents.


5. A family pattern of withdrawal of one of the parents from the tasks of parenting, and leaving that to the other spouse (usually the husband/father withdraws but sometimes it's the wife/mother). Usually this happens at the time of birth, but sometimes occurs later.


6. A pattern of overt conflict between the parents that begins long before divorce but escalates over time. This conflict includes arguments,  name calling, expressions of contempt, criticism, defensiveness, and "stonewalling" (see John Gottman and his "four horseman of the apocalypse"). The child is a witness to this conflict nearly every time it occurs and is not protected from repeated exposure to marital arguments.


7. As the marriage unravels, one parent (usually but not always, the wife/mother) forms an abnormally strong emotional bond with the child/children as the other spouse withdraws as a defense against feelings of abandonment.


8. The spouse with the now "enmeshed" relationship with the child begins to confide in the child about her dissatisfaction and complaints about the other spouse. This process may or may not be intentionally designed to further distance the father from the children, but definitely is intended to provide the adult with "allies" in the conflict, and to prevent feelings of abandonment in the adult.


9. The distant parent fails to establish, maintain, or re-establish the emotional, positive, parenting bonds with the children, and withdraws further into work or an affair or substance abuse.


In my experience with hundreds of divorce cases, I know of NO case where ALL of the factors listed above were not present when "parental alienation" was an issue. Not one.


As I noted in a recent post, new neuroscience research has revealed that merely being a spectator to an event leads to the same neural (not merely psychological) changes in the brain as being a participant. No intensive brainwashing campaign is required, merely observation. For a child, whose world is defined by their parents and families, watching one parent systematically devalue and denigrate the other "teaches" alienation. When the divorce finally occurs, the process is already completed, and the divorce litigation merely illuminates it.  


When the breakup has included a history of family violence, the odds of parental alienation are further increased, even if the child has NOT been the target of any violence. (see my last post on this blog).


When wounded people find each other and marry (and they always do find each other), and then have children before those wounds are healed and their relationship is repaired, the risk of both divorce, of PAS developing, is very high. As other professionals have noted, the children's relationship with the "alienated" can be repaired, but the process is arduous, and requires emotional and financial resources that the alienated parent doesn't always have. 


PAS is a vexing family problem, not a mental disorder, and requires a family-oriented solution that includes both parents and the child.

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.

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 Psychopathy. Journal of Neuroscience, 2011; 31 (48): 17348-17357 DOI: 10.1523/JNEUROSCI.4215-11.2011

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.

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.

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)

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.

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.

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.

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]

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.