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

Benefits in Non-Litigation Matters

In any non-litigation matter, one objective of a lawyer is to avoid the potential for future litigation. Litigation that challenges any work product or action in a non-litigation matter creates uncertainty and risk. By using a forensic psychiatry expert witness in a non-litigation matter, the lawyer can increase his available evidence in advance with contemporaneous proof and reduce the possibility that any work product or action will be contested in subsequent litigation. The more the work product or action appears (based on the opinion of an expert) binding and enforceable, the more likely that such work product or action will not be challenged in future litigation.

Mental Capacity and Competency Issues – Estate Planning

One area where forensic psychiatry expert witnesses can assist lawyers in non-litigation

matters is concerning mental capacity and competency issues. Mental capacity and competency issues can arise in estate planning matters. If there is a potential issue concerning the mental capacity and competency of a testator who is about to execute a Will, a lawyer can hire a forensic psychiatry expert witness to then examine such person and execute an Affidavit that such person has sufficient mental capacity and competency to execute a valid Will. By so engaging the forensic psychiatry expert witness at the time of execution of a Will, rather than waiting until after the death of the testator, a lawyer can establish contemporaneous proof of capacity and competency and thereby minimize the risk of such Will being challenged in subsequent litigation.

Mental Capacity and Competency Issues – Transaction Documents

In a similar manner, mental capacity and competency issues can be addressed by a forensic psychiatry expert witness in business transactions when the binding effect of a transaction document (such as an asset purchase and sale agreement) could otherwise be questioned because of the uncertain mental capacity and competency of a signing party.

Other Non-Litigation Matters

There are other areas for the use of forensic psychiatry expert witnesses in non-litigation matters besides mental capacity and competency issues. One area is with respect to the triggering of “mental disability-related” provisions under existing documents. For example, a forensic psychiatry expert witness can currently examine a person and execute an Affidavit to support the triggering of a “mental disability-related” provision with respect to such person under a disability insurance policy. Another area is concerning the intent of a person in undertaking certain action. For example, a forensic psychiatry expert witness can currently examine a person and execute an Affidavit to support that such person’s intent in terminating an employee was not based on discrimination. In these examples, similar to in the above-described mental capacity and competency examples, a lawyer can reduce the uncertainty and risk of future litigation by currently enhancing his available evidence, with expert contemporaneous proof, by hiring a forensic psychiatry expert witness.

Provided by HG.org

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.