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The Use of Forensic Psychiatry Expert Witnesses in Non-Criminal Litigation

It is often mistakenly assumed that forensic psychiatry expert witnesses only assist lawyers in criminal litigation cases. In fact, they can help lawyers in many other types of litigation.

Psychiatric, Mental Health, and Other Related Issues

The key factor in assessing whether a lawyer can use a forensic psychiatry expert witness in litigation is whether the litigation involves psychiatric, mental health, and other related issues. Such “issues of the mind” (regardless of whether arising in criminal or non-criminal litigation) can require the expertise of a forensic psychiatrist to decipher and resolve. Two legal issues related to “issues of the mind” that frequently arise in non-criminal litigation are capacity and intent.

Civil Litigation

Capacity and intent issues are often present in civil litigation. For example, a breach of contract case can be affected by a lack of mental capacity and competency of a signing party to the contract that could vitiate the contract. In addition, the future mental capacity and competency of
a plaintiff who suffered a brain injury in an accident can be a crucial fact in determining damages in the plaintiff’s personal injury litigation. As other examples, the intent of a defendant can be of critical importance in an employment discrimination case or in determining whether civil punitive damages should be awarded to a plaintiff. Forensic psychiatry expert witnesses can give an opinion on and testify about the capacity and intent of any person relevant to a civil litigation case.


Another area of non-criminal litigation in which capacity and intent issues frequently arise is probate. Did the testator of a Will have sufficient mental capacity and competency to execute a valid and enforceable document? Is a Power of Attorney triggered to be effective based on the mental disability (lack of mental capacity and competency) of the principal under the Power of Attorney? What was the intent of the testator of a Will with respect to a provision in the Will with unclear language (including was the intent affected by “undue influence”)? The opinion and testimony of a forensic psychiatry expert witness can guide a judge or a jury in answering these questions.


Certain mental disorders (including certain lack of mental capacity and competency) can bar an immigrant from being admissible to the United States. In addition, an “intent” issue – fear of persecution – can be of major importance in asylum proceedings. Forensic psychiatry expert witnesses can help lawyers support their cases in these immigration situations.

Other Areas of Non-Criminal Litigation

The use of forensic psychiatry expert witnesses is not limited to capacity and intent issues. Forensic psychiatrists can also help lawyers in other areas, including in child custody cases (opining on the mental health of the parents or guardians, or the children), “disability-related” cases (opining on whether a person’s mental health constitutes a “disability”, such as under an employment agreement or a disability insurance policy), and malpractice cases (opining on the treatment by a psychiatrist or psychologist). Forensic psychiatry expert witnesses can be an important resource for lawyers to utilize to prevail in their non-criminal litigation cases.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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