From the Desk of Dr. Sam Goldstein
Every forensic neuropsychological evaluation should begin with a simple but essential premise: the evaluator's responsibility is to the truth, not to the party that retained them. Attorneys have an ethical obligation to advocate zealously for their clients. Expert witnesses do not. The role of the forensic neuropsychologist is fundamentally different. Whether retained by the plaintiff, the defense, or appointed by the court, the examiner's professional responsibility is to conduct an objective assessment grounded in sound science, accepted methodology, ethical practice, and careful interpretation of all available evidence. The expert serves the legal process by helping the trier of fact understand complex neuropsychological issues, not by advancing the litigation strategy of either side.
Yet despite this seemingly straightforward principle, the ideal is not always realized in practice. The distinction between evaluations requested by plaintiffs and those conducted pursuant to Rule 35 of the Federal Rules of Civil Procedure often creates confusion about purpose, expectations, and professional responsibility. One evaluation is sought voluntarily by an injured individual, typically through legal counsel, while the other is compelled by court order after the plaintiff has placed his or her physical or mental condition at issue. Although these examinations arise under very different circumstances, should their ultimate goals differ? In my opinion, the answer is unequivocally no. The path leading to the evaluation may differ, but the destination should always remain the same: the objective search for the truth.
Different Paths to the Same Destination
A plaintiff neuropsychological evaluation is typically initiated voluntarily. Individuals who have sustained a traumatic brain injury, stroke, toxic exposure, or other neurological condition often seek evaluation to better understand the cognitive, emotional, and behavioral consequences of their injury. Attorneys may request these evaluations to document impairments, establish a diagnosis, determine prognosis, evaluate functional limitations, and assess whether there is a scientifically supported relationship between the reported injury and current neuropsychological functioning. These examinations frequently become part of the evidentiary record and also serve an important clinical purpose by helping individuals better understand the nature and extent of their difficulties.
A Rule 35 examination, in contrast, arises from an entirely different procedural framework. Ordered by the court, the plaintiff is obligated to participate once a mental or neurological condition has become an issue in litigation. The examinee has no discretion to decline the evaluation and often enters the examination with understandable apprehension. Unlike the plaintiff's evaluation, the Rule 35 examination is conducted solely for forensic purposes rather than for treatment or consultation. Nevertheless, despite these procedural differences, the examiner's mission should not change. Regardless of who requested the evaluation or who pays the examiner's fee, the central question remains the same: What conclusions are supported by the available scientific evidence, objective neuropsychological data, medical records, behavioral observations, collateral information, and accepted clinical methodology? The examination should never become an exercise in advocacy disguised as science.
Independence Is the Cornerstone of Credibility
Forensic neuropsychology differs from clinical practice because the evaluator does not provide treatment, develop a therapeutic relationship, or advocate for a patient's healthcare needs. The examiner's role is investigative rather than therapeutic. Yet this distinction makes professional independence even more important. The credibility of forensic neuropsychology rests almost entirely on the public's confidence that experts reach opinions because the evidence supports them—not because one side retained them.
The strongest and most persuasive forensic opinions are rarely those that assert absolute certainty. Instead, they acknowledge competing explanations, recognize the limitations of the available data, explain why one interpretation is more scientifically defensible than another, and openly discuss findings that may not support the retaining party's position. An evaluator who selectively cites evidence favorable to one side while minimizing or ignoring contradictory information diminishes not only the quality of the opinion but also the credibility of the profession. Judges, juries, and experienced attorneys have become increasingly sophisticated at distinguishing genuine scientific objectivity from hired advocacy masquerading as expert testimony.
When the Goal Becomes Disproving Rather Than Evaluating
One concern periodically raised by attorneys, judges, and even members of the neuropsychological community is that some defense evaluations appear to begin with an implicit objective that extends beyond evaluating the plaintiff. Rather than asking, "What does the evidence show?" the examination sometimes seems directed toward answering a different question altogether: "How can this claim be disproven?" This distinction is critically important because it fundamentally alters the role of the forensic evaluator.
To be clear, every competent forensic neuropsychologist should carefully evaluate symptom and performance validity, prior medical records, educational history, collateral information, alternative explanations for cognitive complaints, and the consistency of reported symptoms with objective findings. Identifying exaggeration, malingering, symptom magnification, or unrelated causes of impairment is a legitimate and necessary part of forensic practice. The legal system depends on experts who can distinguish genuine impairment from unsupported claims.
The problem arises when an examiner begins the evaluation with the presumption that exaggeration or deception already exists and then selectively interprets evidence through that lens. This introduces confirmation bias, a well-known cognitive error in which evidence supporting an initial belief receives greater weight than evidence that challenges it. Confirmation bias is not unique to defense experts; plaintiff experts are equally vulnerable. It is a universal human tendency that every forensic examiner must consciously guard against.
The evaluator's responsibility is not to prove the plaintiff wrong, nor is it to prove the plaintiff right. The responsibility is to determine where the evidence leads, even when those conclusions disappoint the attorney who retained the expert. Scientific integrity requires the willingness to follow the evidence wherever it leads, not wherever litigation strategy prefers.
History Matters, But It Must Be Interpreted Carefully
Another area deserving thoughtful consideration is the emphasis on historical inconsistencies. Some forensic reports devote extensive discussion to discrepancies in a plaintiff's recollection of past events while providing comparatively little analysis of current neuropsychological functioning. Historical accuracy is important. Prior medical records, educational history, occupational functioning, previous injuries, psychiatric background, developmental history, and collateral information all contribute to valid interpretation and should be carefully reviewed.
However, historical inconsistencies must be interpreted within an appropriate neuropsychological context. Individuals who have experienced neurological injury often show impaired memory, reduced insight, slowed information processing, diminished attention, fatigue, anxiety, depression, or communication difficulties. Minor discrepancies in recall are common and do not necessarily indicate intentional deception. Likewise, consistency alone should never be mistaken for proof of accuracy.
The most scientifically sound evaluations integrate historical information with objective neuropsychological testing, behavioral observations, validated performance validity measures, collateral interviews, neuroimaging findings when available, and the broader scientific literature. The examiner's task is not to impeach the plaintiff but to understand the plaintiff. These are very different objectives.
Fairness Benefits Everyone
Some may argue that vigorous defense evaluations are necessary because fraudulent claims exist and must be identified. I agree. Invalid claims should be recognized and addressed just as legitimate injuries deserve careful documentation and fair compensation. The justice system depends on reliable expert testimony capable of distinguishing between them.
The solution, however, is not adversarial science. The answer is greater objectivity. Every forensic evaluation should apply the same professional standards, regardless of referral source. The same neuropsychological test batteries, performance validity procedures, interpretive methods, diagnostic criteria, and scientific rigor should be employed whether the examiner is retained by plaintiff's counsel, defense counsel, an insurance carrier, or the court itself. Science cannot have separate standards depending on who is paying the invoice.
Objectivity ultimately protects everyone involved in the legal process. Plaintiffs benefit when legitimate impairments are accurately recognized and documented. Defendants benefit when unsupported claims are identified through reliable methodology rather than speculation or assumption. Courts benefit when expert testimony becomes more trustworthy, enabling judges and juries to make better-informed decisions. Most importantly, the profession of forensic neuropsychology benefits when public confidence in expert testimony is strengthened rather than diminished.
A Higher Standard for Forensic Practice
Professional organizations in psychology and neuropsychology consistently emphasize impartiality, transparency, scientific integrity, and methodological rigor. Experts are expected to disclose limitations, consider alternative explanations, avoid overstating certainty, and base opinions on reliable scientific methods rather than advocacy. These principles are not aspirational ideals; they form the ethical foundation of forensic practice.
Every forensic neuropsychologist should be comfortable asking a simple question before signing a report: Would I write the same opinion if I had been retained by the opposing side? If the answer is no, something other than objective science may be influencing the conclusions. True independence means remaining faithful to the evidence, regardless of who requested the examination or who ultimately pays the fee.
Ultimately, neither plaintiff evaluations nor Rule 35 examinations are intended to help one side win litigation. They are intended to assist judges and juries in understanding complex questions involving cognition, behavior, diagnosis, causation, functional capacity, and prognosis. The courtroom depends on experts who illuminate rather than advocate, who explain rather than persuade, and who remain committed to scientific objectivity even when that objectivity is inconvenient.
The most respected forensic neuropsychologists are remembered not for consistently favoring plaintiffs or defendants. They earn the respect of courts, colleagues, and attorneys because their opinions are balanced, scientifically grounded, intellectually honest, and unwaveringly independent. That should remain the standard to which every forensic neuropsychological evaluation aspires, regardless of who requested the examination or under what rule it was conducted. In the end, justice is best served when forensic experts remember that their client is neither the plaintiff nor the defense. It is the truth itself. ◆
