ASSESSMENT

Greenberg
ARTICLE / PERSONAL INJURY ASSESSMENT
10.1177/1073191103259532

The Utility of Psychological Testing

in Assessing Emotional Damages in
Personal Injury Litigation
Stuart A. Greenberg
University of Washington

Randy K. Otto

Florida Mental Health Institute,

University of South Florida

Anna C. Long

University of Washington
Psychological testing and assessment instruments frequently play a small but important role
when psychologists assist the courts as emotional damage experts in personal injury matters. However, examiners frequently, if sometimes inadvertently, mislead the court with test
interpretations that are based on clinical rather than forensic populations and that fail to
appreciate the lack of robustness of clinical measures in this forensic context. Whereas published computerized interpretations repeatedly remind experts that personality test results
should only be used as a method to generate hypotheses about the examinee that are to be
subjected to further investigation and consideration, experts all too often inform the courts
of test interpretations as if the test results were measures of clinical constructs rather than
plaintiffs self-reports of symptoms.
Keywords: psychological testing; forensics; test interpretations
On a regular basis, attorneys and judges look to psychologists and other mental health professionals for assistance in better understanding the claims of plaintiffs who
allege that they have suffered emotional damage. The
court seeks the assistance of mental health professionals in
such personal injury cases based on the assumption that
the plaintiffs psychological functioning and adjustment is
a complicated matter that is beyond the understanding of
attorneys, judges, and juries. As a function of their education, training, and experience, mental health professionals
are considered to have specialized knowledge, which may
facilitate the fact finders understanding of the alleged
damages. Information provided by mental health professionals may include the plaintiffs current emotional functioning as well as how he or she was emotionally affected
by the defendants alleged negligence or other wrongdoing.
Assessment, Volume 10, No. 4, December 2003 411-419
DOI: 10.1177/1073191103259532
2003 Sage Publications

In this article, we consider the potential utility of psychological tests in personal injury examinations that involve allegations of emotional harm or damages and discuss the caveats and limitations associated with this
testing.1 We begin with a discussion of the basic law of personal injury in an attempt to elucidate how psychologists
can best assist attorneys and judges and the ways in which
legal conceptualizations define the demands of forensic
psychological assessment. We then review a typology of
measures that psychologists may employ in forensic examinations, after which we discuss the assessment practices of psychologists when conducting these examinations and the measures they most typically employ. We
finish by offering a list of factors that psychologists should
consider when deciding whether to use particular measures in the personal injury context, how the measures

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should be employed, what interpretations may be warranted, what caveats should be offered, and what weight
should be given to the interpretations of such measures.
OVERVIEW OF THE LEGAL QUESTION
AND PSYCHOLEGAL ISSUES
To be most helpful to the legal decision makers, psychologists conducting forensic evaluations must understand the relevant law so that they may identify those issues before the court that are psychological in nature and
about which they can offer an expert opinion (Grisso,
2003). The legal framework of personal injury cases is defined in large measure by the law of torts. Tort law recognizes a claim for monetary damages when one breaches a
duty of care owed to another and proximately causes them
harm. A tort is a civil wrong that gives rise to a remedy in
the form of a claim for compensation that is commenced
with the filing of a complaint or petition. Although claimants may seek compensation for physical as well as psychological harm caused by anothers tortious conduct,
claims for psychological harm present a complex set of
jurisdictional issues, rules, and limits about which a large
body of case law and statutory law exists. As a general
guide, for the claim to be legally viable, the plaintiff must
prove, meeting the legal standards of the jurisdiction, that
the defendant owed the plaintiff a duty, that the duty was
breached, and that the plaintiff experienced significant
damage as a proximate result of the distress caused by that
breach of the duty. If such a claim prevails, there may be
recovery in the form of damages for the pain and suffering
experienced by the plaintiff and/or for the plaintiffs loss
in functioning as compared to his or her preincident level
of functioning. Psychological testimony may be helpful in
the courts determination of those damages (Greenberg,
2003 b?; Greenberg & Wheeler, 2003 in press?; Shuman,
1994). As will be discussed below, this last issue regarding
the determination of psychological damages based on a
preincident versus postincident comparison is unique to
personal injury examinations and is critical in the way assessment instruments are utilized in these examinations.
USE OF PSYCHOMETRIC ASSESSMENT
IN PERSONAL INJURY EXAMINATION
One way in which psychologists have distinguished
themselves from other professionals who conduct forensic
examinations is by the development and use of psychological measures. Psychological assessment instruments have
the potential to increase the utility of forensic examinations assuming the instruments validly assess behaviors

or capacities that better inform the legal decision maker

about issues of relevance to the legal question(s) before the
court (Grisso, 2003). Of course, expert psychological testimony may provide no assistance to the legal decision
maker, or it can result in less accurate decision making
when instruments used in the psychological evaluation are
minimally relevant to the legal issue or are invalid measures of the constructs they purport to assess (Borum,
Otto, & Golding, 1993).
A Typology of Assessment Instruments
Measures typically employed by psychologists in forensic examinations fall into one of three categories: clinical assessment instruments (CAIs), forensically relevant
instruments (FRIs), and forensic assessment instruments
(FAIs) (Heilbrun, Rogers, & Otto, 2002; Otto, 2002;
Otto & Heilbrun, 2002).
CAIs are psychological measures that assess clinical
constructs, such as anxiety, depression, anger, intelligence, academic achievement, and assertiveness, and they
are used with clinical populations to assist in assessment,
diagnosis, and treatment planning. Many instruments,
such as the Wechsler Adult Intelligence ScaleIII (WAISIII) (Wechsler, 1997), the Minnesota Multiphasic Personality Inventory2 (MMPI2) (Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 1989), the Millon Clinical
Multiaxial InventoryIII (MCMIIII) (Millon, Davis, &
Millon, 1997), the Personal Assessment Inventory (PAI)
(Morey, 1991), the Beck Depression InventoryII (BDI
II) (Beck, Steer, & Brown, 1996), and the Symptom
Checklist 90R (SCL-90R) (Derogatis, 1994), are well
validated and have good normative databases. Because
these measures have been developed for the purpose of
therapeutic evaluation (i.e., evaluations in which the goal
is to assist in the amelioration of difficulties the examinee
experiences), they assess and describe constructs that are
not directly relevant to a particular legal standard or issue.
As with CAIs, FRIs are also used to assess clinical constructs. Unlike CAIs, FRIs are used to assess those constructs that are more typically and primarily of interest in
forensic contexts. Measures of response style, such as the
Structured Interview of Reported Symptoms (Rogers,
Bagby, & Dickens, 1992), the Paulhus Deception Scales
(Paulhus, 1999), the Validity Indicator Profile (Frederick,
1997); measures of risk for violence or criminal offending,
such as the HCR-20 (Historical, Clinical, Risk Management 20) Risk Assessment Scheme (Webster, Douglas,
Eaves, & Hart, 1997) and the Level of Service Inventory
Revised (LSIR) (Andrews & Bonta, 1995); measures of
abuse potential, such as the Child Abuse Potential Inventory (Milner, 1986); and measures of psychopathy, such as
the Psychopathy ChecklistRevised (Hare, 1991), are all

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examples of FRIs that assess constructs that, although they

may be of concern in some therapeutic settings, are primarily used in forensic contexts.
Unlike both CAIs and FRIs, FAIs are those measures
that are specifically designed to directly assess psycholegal constructs or capacities and are, therefore, rarely of
use outside of forensic settings. Measures of trial competence, such as the MacArthur Competence Assessment
ToolCriminal Adjudication (Poythress et al., 1999) and
the Competence Screening Test (Laboratory of Community Psychiatry, Harvard Medical School, 1973), and measures of competence to confess, such as the Comprehension of Miranda Rights measure (Grisso, 1998), are
examples of FAIs. There are few FAIs relative to the number of CAIs and FRIs, and there are no FAIs for the assessment of emotional damages (see Heilbrun et al., 2002, for
a review and listing of FAIs and FRIs).
Assessment Practices of Psychologists
Conducting Personal Injury Examinations
Investigating and describing the assessment practices
of psychologists who conduct personal injury examinations is more difficult than might be expected, and it is
complicated by a number of factors. First, attempting to
describe assessment practices in personal injury litigation
may prove misleading given the various types of damage
that can be alleged and the questions that can be presented
to the forensic examiner.
Not all personal injury examinations require the same
assessment instruments. For example, in cases in which it
is alleged that the plaintiff suffered cognitive impairment
as a result of the defendants action or inaction, neuropsychological assessment, including use of measures of
intellectual and cognitive functioning, may be indicated.
In contrast, in personal injury cases in which neuropsychological impairment is not alleged, use of neuropsychological measures to assess emotional damage is usually
not indicated. Instead, the examiner may utilize measures
that aid in assessment of a variety of other behaviors and
symptoms, including anxiety, depression, phobias, substance use, sexual functioning, physical or psychological
self-image, bereavement, and so on. Thus, although we
may be able to identify a general evaluation protocol or
format for personal injury examinations, we should not
expect to identify a uniform battery or selection of tests
used in every personal injury evaluation.
Also, description of the assessment practices in this
context is complicated by difficulties in obtaining relevant
data. To better understand what it is that psychologists are
actually doing when they conduct a personal injury examination, it would be best to observe their work and to sys-

tematically review their work products, including the reports or testimony describing their assessments. It is difficult, however, to access such information. Although some
researchers have been able to describe the assessment
practices of psychologists in other forensic pursuits using
this approach (e.g., Budd, Felix, Poindexter, Naik-Polan,
& Sloss, 2002; Heilbrun & Collins, 1995; McGaha, Otto,
Douglas, & Petrila, 2003; Skeem, Golding, Cohn, &
Berge, 1998), no such data are available for personal
injury evaluations.
Given these difficulties and limitations, we are left with
one small survey of psychologists who reported conducting personal injury examinations. Boccaccini & Brodsky
(1999) surveyed 80 psychologists who were concurrent
members of Divisions 41 (American Psychology-Law
Society) and 12 (Clinical Psychology) of the American
Psychological Association. These volunteers reported
their use of psychological instruments in the context of
personal injury litigation. The most commonly used instruments in emotional injury cases were the MMPI/
MMPI-2 (used by 94% of respondents), the WAIS-R/
WAIS-III (54%), the MCMI-II/MCMI-III (50%), the
Rorschach Inkblot Technique (41%), the Beck Depression
Inventory (33%), the Trauma Symptom Inventory (31%),
the Structured Inventory of Reported Symptoms (26%),
the Halstead Reitan battery (11%), the Personality Assessment Inventory (9%), the Thematic Apperception Test
(9%), and the Symptom Checklist 90Revised (8%). More
seasoned examiners reported using a greater number of
tests per examination than less experienced examiners.
Only 11 of all possible assessment instruments were reported used by five or more psychologists, and no two
practitioners reported employing exactly the same battery
of instruments.
Although the utility of these findings is quite limited,
they provide some interesting information. The fact that
only a small minority of practitioners reported employing
the same set of measures is not surprising, nor is it a source
of great concern, given the different types of damage that
psychologists may be called on to assess in any given case.
For example, it is expected that a minority of psychologists
responding to this survey reported employing a particular
neuropsychological test battery, such as the HalsteadReitan (Reitan & Wolfson, 1993), because only a small
percentage of personal injury cases may involve claims of
cognitive or neuropsychological impairment, and many
psychologists are unqualified to conduct forensic examinations when such impairment is the key aspect of the
claim. On the other hand, some of the data reported are
surprising. Given how rarely psychotic symptoms form
the basis of a personal injury claim, it is surprising that
26% of the psychologists reported using the Structured
Interview of Reported Symptomsa measure developed

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to assess feigned psychotic spectrum symptoms. Of some

consolation, however, was that respondents reported using
the instrument in a total of only 11% of the examinations
they conducted.
Considering Norms for the Typical Plaintiff
Some investigators have attempted to describe the
normative test profile of personal injury litigants.
Butchers MMPI-2 Report for Forensic Settings, now published by Pearson Assessment, provides descriptive
MMPI-2 data culled from 609 personal injury litigants
(Butcher, 1997a, 1997b, 1998), along with Butchers computerized interpretation of MMPI-2 profiles, with the
understanding that test takers completed the instrument
pursuant to personal injury litigation. Using a similar
approach, Lees-Haley (1997) administered the MMPI-2 to
492 plaintiffs who were victims of a wide variety of traumas including spinal cord injuries, brain injuries, burns,
amputations, toxic exposures, sexual harassment, wrongful termination, and other incidents and accidents. Together these two samples incorporate a wide range of possible claimants and traumas and their mean profiles.
Although it may be of limited relevance or utility to know
that a particular plaintiff scores as more or less pathological on the various scales of the MMPI-2 than does the average plaintiff, these data may become much more useful
when they are elaborated on and include information regarding subgroups of plaintiffs who have different preexisting conditions, types and intensities of trauma, levels of
resiliency and fragility, degrees of postevent environmental support, nature of accomplished and available interventions, and so on. Until that time, it is of limited helpfulness
to know that the victim of a particular motor vehicle accident scores higher or lower on a particular MMPI-2 scale
than the average of a group made up of a variety of people
and circumstances whose only real commonality is that
they have been administered the MMPI-2 in their role of
being personal injury claimants.
FACTORS TO CONSIDER WHEN SELECTING
AND USING PSYCHOLOGICAL TESTS FOR
USE IN PERSONAL INJURY EXAMINATIONS
Psychologists who examine plaintiffs in personal injury cases usually assess and describe at least five aspects
of the plaintiffs life and functioning:
1. the plaintiffs baseline state of psychological
functioning before the alleged tortious event,
2. the nature and extent of the distress to which
the plaintiff was subjected by the actions of the
defendant,

3. the nature and extent of any significant subsequent impairments or injuries to the plaintiffs
prior level of functioning,
4. the likely psychological cause of these impairments or injuries, and
5. what the future is likely to hold with respect to
these impairments and injuries, including the nature of any psychological intervention that would
aid in the plaintiffs return to his or her preincident baseline level of functioning (Greenberg,
2003b).
Assessment of these various issues is necessarily
multimodal in nature and may include clinical interviews
with knowledgeable parties, review of relevant records,
and psychometric assessment (Committee on Ethical
Guidelines for Forensic Psychologists, 1991; Greenberg,
2003b; Melton, Petrila, Poythress, & Slobogin, 1997). Instruments should be selected that generate hypotheses that
are directly relevant to a psycholegal question before the
court. Instruments most helpful to these tasks should be
utilized but always with a cognizance of the substantial
limitations that even the best instruments bring to such
forensic application.
Assessment of Response Style
Forensic examiners must always pay careful attention
to the response style of examinees, and their responses
must be viewed within the context of the legal proceedings
(Otto, 2002). One value of many measures of general
psychopathology and personality is the inclusion of measures of response style. Of the various measures of
psychopathology and personality, the MMPI-2 is probably best suited to provide the examiner with information
about an examinees response style insofar as the various
scales embedded within the MMPI-2 that go toward assessing the examinees test-taking approach are the most
researched. The MMPI-2 includes a number of scales that
are useful in assessing various response styles, including
defensiveness/denial, display of positive attributes, symptom magnification, irrelevant responding, and hybrid responding (see Rogers, 1997, for a review of response
styles more generally). Thorough understanding of the
construction and function of these scales can help generate
hypotheses about examinees response styles and the
meaning of their test responses. Although other measures
of general psychopathology and personality include measures of response style (e.g., MCMI-II, MCMI-III, PAI),
they are not as well researched (Edens, Cruise, &
Buffington-Vollum, 2001; McCann, 2002).
In contrast, most measures of specific psychopathology (e.g., BDI-II, BAI, BSS, BHS, State-Trait Anxiety Inventory2) do not include measures of response style

Greenberg / PERSONAL INJURY ASSESSMENT 415

within them. In combination with their typically face-valid

items, this renders them more vulnerable to dissimulation.
Assessment and Description of
Plaintiffs Preevent, Baseline Functioning
In regard to assessment of baseline functioning and
preexisting conditionswhether they are assets or
deficits no instrument currently exists that can reliably
assess what was the level and quality of a plaintiffs functioning or the capacity before a tortious event occurred,
nor are there instruments that can reliably separate the
effects of one prior trauma or experience from another.
Even valid measures or scales that appear to assess
more enduring and stable characteristics or behavioral patterns and that demonstrate long-term test-retest stability
cannot simply be assumed to reflect the examinees
preevent functioning. For example, the MMPI-2 Welsh A
(Anxiety/Distress) and the Welsh R (Repression/OverControl) scales show good test-retest reliability, ranging
from .7 to .9 (Butcher et al., 1989; Moreland, 1985; Welsh,
1956). However, one cannot therefore conclude that a
plaintiff was distressed or repressed before an injury simply because the plaintiff tested this way after an injury.
Similarly, consider Scale 6 (Paranoia) of the MMPI-2.
Textbook interpretations for distinctly elevated Scale 6
MMPI-2 profiles, based on research involving clinical
populations, typically include descriptors such as disturbed thinking, heightened interpersonal sensitivity,
overly responsive to the opinions of others, they feel they
are getting a raw deal out of life, they tend to blame others
for their own difficulties, suspicious, hostile, guarded, resentful, and argumentative (Graham, 2000; Greene,
2000). Despite language that suggests that these are
descriptors of more enduring personality traits, elevations
on this scale alone cannot support the conclusion that a
plaintiff who claims to have been discriminated against,
harassed, or assaulted or to have lost a child or spouse to
medical malpractice or a drunk driver was, in fact, this way
before the alleged event. Many such plaintiffs feel angry
and resentful because they believe that they have experienced more than their fair share of things to worry about
and that someone else is responsible for their pain and loss.
Such an outlook does not make them paranoid, despite
claims that Scale 6 is reported to generate relatively few
false positives in clinical contexts (Graham, 2000).
The list of such examples is almost as long as a list of
the scales on personality tests, and yet examiners frequently, if sometimes inadvertently, mislead the court with
such interpretations. A plaintiffs baseline, preevent mental status is best assessed through a thorough structured
history-taking of functioning at the pre-event baseline

point in time, including the use of collateral documents

and interviews and supplemented by forensically oriented
life history questionnaires (e.g. Greenberg, 2003a).
Assessment of the Distress
Attendant to the Alleged Tortious Event
There are typically two questions that may be asked of
expert witnesses regarding the nature of the distress likely
to have been brought on by the alleged actions of the defendant. One question is the liability question of whether
the distress was of a nature and magnitude to have substantially impaired the reasonably or normally constituted
plaintiff (i.e., the average person), and the other is part of
the damages question regarding whether the distress of
such events was likely to have been experienced by this
plaintiff as more or less distressing than would have been
experienced by the typical plaintiff. Note that the focus
here is on the alleged stressful event rather than ways in
which this plaintiff may have been impaired by the events.
For example, testimony may be requested regarding how
distressing a particular trauma is likely to have been. Depending on the literature available, an expert may be able
to describe what that experience might have been like for
the average person, as well as what it might have been like
for a plaintiff who had previously been traumatized by a
similar experience. The first part of this testimony may
help the jury to decide one element of whether an event
is compensable, and the second may help the jury to decide how much in compensation to award to the plaintiff
depending on the actual impairment caused by the distress
experienced.
As is described below, if the distress that was experienced by this plaintiff damaged or impaired the functioning of this plaintiff more than it would have affected an
average person, then the jury may award additional damages because this person has been determined by them to
be an egg shell or thin skull plaintiff (Shuman, 1994).
Whereas scales rating stress, such as the Holmes-Rahe
Rating Scale (Holmes & Rahe, 1967), provide some information regarding the relative level of stress associated
with particular life events, the research on this instrument
is limited, and it does not begin to address the wide range
of stress that may be typical depending on related factors. For example, not all experiences of divorce or death
of a spouse are comparable. The divorce experience may
be self-initiated or imposed on one, amicable or hostile,
with or without children, with or without heinous false
accusations, accompanied by abuse and violence, or
accompanied by feelings of betrayal. The death of a
spouse may or may not be anticipated; may be brought
about by violence, disease, or accident; and may occur

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in the context of little or great social support. Such considerations are likely to substantially overshadow the
meaningfulness of group mean data.
The reader should note that very promising work on the
Detailed Assessment of Posttraumatic Stress (Briere,
2001) may eventually provide approaches for the structured assessment of stress attendant to a particular experience and the impact of that particular stress within a particular context on a particular plaintiff. Until that time,
expert witnesses should be cautious in testifying about
how stressful (i.e., how traumatic) an event may have been
for a particular person to experience.
Assessment of the Impairment in
Functioning Experienced by the Plaintiff
Psychological assessment instruments show the greatest potential with respect to assisting in the assessment of
the functional impairments experienced by a plaintiff, but
their utility, even in this context, is limited. This is because
the discrepancy between the plaintiffs functioning and
the populations average functioning is not the legal standard in personal injury matters. Plaintiffs are not compensated because they function differently from a standard or
normative population. They are compensated based on
how different they have become from how they were before the tortious event. Consider a hypothetical plaintiff
whose mental health functioning was in the top 10% of the
population before being sexually harassed but whose later
functioning has been impaired such that she is functioning
at the population average. Such a plaintiff is as entitled to
compensationall other things being equalas is the
plaintiff whose emotional functioning before the bad act
was at the population average yet who, subsequent to the
event, is functioning at the tenth percentile.
Measures of general psychopathology and personality,
such as the MMPI-2, MCMI-III and PAI, all of which are
commonly employed in personal injury examinations, are
well suited to assess a partys current state of mental and
emotional functioning, and they can be used to assess behavior patterns and personality styles. In addition, measures of specific psychopathology, such as the BDI-II,
BAI, BSS, BHS, State-Trait Anxiety Inventory2, may
also aid in such assessment. However, whereas this information may be indirectly relevant to the psycholegal questions that the court is addressing, the information gained
from these instruments alone is not sufficient to answer
questions about legal issues (Melton et al., 1997; Otto,
2002). In this sense, tools such as the MMPI-2, the MCMIIII, and the PAI may help the forensic examiner generate
hypotheses about psycholegal issues, but they must be
considered in conjunction with other clinical forensic
examination techniques.

Examinees can identify and describe the types of impairments they are experiencing at the time of the examination by using any of a number of clinical assessment
measures, but even these test results do not indicate how
much impairment to the plaintiffs pretrauma functioning
the deficit reflects. Moreover, one cannot determine
whether the impairments reported by the examinee were
experienced prior to or as the result of the alleged wrongdoing of the defendant.
At the next level of abstraction, although tests such as
the MMPI-2, the MCMI-III, and the PAI may provide
some indication of how different from some population
average the plaintiff is on one or more dimensions, these
test results do not demonstrate how impaired the persons
functioning is at the time of testing. Another overriding
consideration is that even tests with robust measures of
response style, such as the MMPI-2, do not have a research
foundation to demonstrate how the tests assessment of
response style functions in personal injury.
Assessment of Cause in Fact
No test currently exists to assess whether a particular
impairment was caused by the legally relevant claim or by
another trauma in the plaintiffs life, nor is there any test
available to determine if the event happened in the way it is
claimed, if at all. Questionnaires can provide self-report
data, which can be utilized in interviews to get a more
complete picture of the plaintiffs claim. Standardized
testing can also yield hypotheses regarding constructs that
may prove to be consistent with the trauma claimed and
the impairment reported. For example, social withdrawal,
anger, guardedness, and sexual arousal difficulties are behaviors and symptoms oftentimes experienced by people
who have sexually assaulted. Although not providing evidence that the assault actually occurred, the report of such
symptoms may direct the examiner to areas deserving of
further inquiry regarding possible damages.
Assessment of Future Damages
Psychological testing can also provide helpful information to the examiner as he or she develops hypotheses
regarding how vulnerable to future stress a plaintiff is
likely to be, but, again, such testing will not answer that
question with certainty, nor will it be able to a priori identify the likely future stressor, the likelihood of the person
seeking therapy, or the likely future outcome. Accordingly, assessment of the need for, likely use of, and responsiveness to future therapy is best estimated by how the
plaintiff performed in the past. In the absence of such historical information or past opportunity, predicting response to treatment is very complex, and verbal skills,

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self-awareness, and level of emotional distress may be

used as possible indicators of likely motivation for and
benefit from therapeutic intervention (Greene, 2000).
SUMMARY AND RECOMMENDATIONS
Because opinions from an expert witness can have a
substantial impact on decision makers, it is the forensic
psychologists responsibility to ensure that attorneys and
triers of fact be provided with careful, justifiable, and generally accepted explanations of test results. Reports and
testimony should be thorough and candid, including candor that reveals the limitation of a test result or interpretation (Shuman & Greenberg, 2003).
Reliance on Valid Measures
It is crucial that psychologists in all psychological evaluations rely on measures that validly assess the constructs
they are designed to assess. The Standards for Educational
and Psychological Testing (American Educational Research Association, American Psychological Association,
National Council on Measurement in Education, 1999),
which provide criteria for the evaluation of tests and testing practices, certainly apply in forensic evaluation contexts and should be considered with respect to measurement selection and data presentation. In addition, Heilbrun
(1992) offered guidelines to assist psychologists in selecting measures for specific use in forensic contexts that are
worthy of consideration.
Conceptualization of Test Results
and Interpretations
Most importantly, the legal issues that are addressed in
personal injury cases are typically different from those
that clinical psychologists address in nonforensic settings.
If this is kept in mind, assessment instruments can play a
helpful role in assessing the psycholegal issues that are relevant in each case. This point is crucial. The results of personality and similar psychological measures help raise
questions and guide conceptualizations for further investigation. Such results actually stimulate questions rather
than answer thema point often distorted by attorneys
and experts alike. These results require corroboration
by the facts of the case in question. As a result, it should
be apparent that assessment instruments are only a small
part of what constitutes a thorough personal injury examination.
Given that standardized assessment instruments are of
limited utility in directly answering psycholegal questions, examiners should consider the instruments they

employ as generating conceptual hypotheses regarding

plaintiffs response styles and the dimensions along which
the likely impairments are manifested (e.g., does the functional impairment likely take the conceptual form of depression, anxiety, anger, or withdrawal?). Forensic examiners should think of assessment instruments as serving
the purpose of efficiently and objectively generating
hypotheses.
Implementation of the Examination
All assessment tools must be interpreted in light of the
context in which they are used (Greenberg & Shuman,
1997), and differences between therapeutic and forensic
contexts must be considered and accounted for (Otto,
2002). Test results generated by plaintiffs in personal injury cases cannot be assumed to have the same meaning as
results generated by persons in therapy settings, and examiners should be aware of current research that is relevant to
testing in the forensic context. Whereas the properties of
any instrument may be robust with regard to the instruments intended purpose, any extrapolation to the forensic
context must be implemented cautiously. Because essentially all CAIs are normed on nonforensic populations, the
applicability of the test results to persons completing psychological measures in forensic contexts remains an issue.
In addition to keeping the forensic context in mind, it is important to examine the particular items that were endorsed
when elevations were present and to follow-up with the
examinee, asking what the examinee had in mind when
answering these questions in this way.
Presentation of Test Results
Most experts offer to the courts legally relevant and
helpful information beyond the expertise of the average
layperson. This knowledge can greatly assist the court in
answering the relevant psycholegal questions. When used
cautiously, candidly, and within the framework of the legally relevant questions, expert testimony can guide the
court in judicious interpretation of assessment instruments
and can help ensure that the tests are used and interpreted
properly.
The presentation of personal injury examination results
to the court should make clear the meaning and limitations
of psychological testing in the forensic context. Test interpretations offered by the examiner should convey that an
examinee does not necessarily have the characteristics
suggested, but that the possibility of having them is more
likely than the population base rate. A high score on a scale
considered to assess depression does not necessarily mean
that the plaintiff is depressed or is experiencing symptoms
of depression, only that there is an increased probability

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that the plaintiff is experiencing symptoms of depression based on the finding that many of the persons who
obtain such scale elevations demonstrate and report such
symptoms of depression.
Only legally relevant test interpretations should be included in forensic reports. Contrary to general clinical
practice, this may involve emphasizing face-valid item
content in testimony as well as explaining scale scores and
avoiding technical jargon. During testimony, the psychologist who uses psychological tests must be prepared
to justify his or her actions and opinions. Blau (1998) recommends that the test results should not be interpreted as
permanent or generally applicable to all circumstances
and that the psychologist should be prepared to respond
knowledgeably and carefully to any and all challenges; in
doing so, the psychologist should be well educated and up
to date on relevant research that supports ones actions and
opinions.
Because no psychological measure can directly answer
any of the psycholegal questions that are at issue in personal injury litigation, testimony and written reports referencing test interpretations should affirmatively instruct
and caution the recipient that interpretations of personality
tests are only hypotheses and that they should not be used
without corroboration by other information in the matter.
For example, the language of interpretations should convey that persons scoring similarly are likely to be depressed rather than conveying that this examinee is determined to be depressed because of this test result.
Psychologists should be mindful that much expert assistance takes the form of informing courts what should
not necessarily be concluded about test results and interpretations. For example, it is helpful for the court to know
that because a psychological test result is invalid, it does
not necessarily mean that a liability or damages claim is
invalid; that because a plaintiff externalizes blame and is
suspicious and hostile, it does not mean that the plaintiff
is clinically paranoid or that the plaintiff has distorted the
claimed experience or the claimed damage; or because the
plaintiff produces a normal range profile, it does not mean
that the person is without impairment or has not been
damaged.
Psychometric assessment is at its best in the assessment
of current functioning. Psychologists have developed robust instruments for that purpose, but as yet, no psychometric instrument is available that reliably determines
what a plaintiffs baseline functioning was like prior to
a tortious event, nor is there one that reliably determines
how distressing that event was at the time it was experienced by a plaintiff. This does not discredit or minimize
the benefit to the courts of experts using other methods and
procedures to estimate preincident functioning and prior
distress, but, as yet, we have not developed a valid and reli-

able psychometric test that provides that information in an

unambiguous way. Where possible, the development of
FAI-type personal injury assessment instruments would
be helpful.
In summary, psychometric assessment can and usually
should be an important part of a thorough personal injury
examination. As part of a multimodal approach to assessment, tests and other instruments provide an important
contribution to the experts conceptualization of the plaintiffs psychological functioning. As long as the relevant
limits of psychometric assessment are considered and
acknowledged, an experts use and presentation of test
results and interpretations can be very beneficial to the
examination process and very helpful to the courts quest
for accurate fact finding in these legal matters.
NOTE
1. In this article, we do not discuss assessment of other types of damage (e.g., cognitive, neuropsychological) that may form the basis for personal injury litigation.

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