ROBIN YEAMANS 46333
Law Office of Robin Yeamans
1484 Pollard Rd. #191
Los Gatos CA 95032 
(408) 867-8137 

Attorney for Petitioner 

SUPERIOR COURT OF CALIFORNIA, SANTA CLARA COUNTY

In re the Marriage of:
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		Petitioner,
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		Respondent	)
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)	Case No.: 1-99 FL 085666

DECLARATION OF ATTORNEY YEAMANS IN SUPPORT OF MOTION TO PRECLUDE THREE EXPERTS

APJ: Dept. 76, Hearing: Dept. 22
Hearing: 9/11/08 at 1:30 PM	
	I, the undersigned, state:
	I am an attorney for petitioner herein.
	This declaration is submitted in support of the contention that now-disqualified attorney Bradford Baugh, his disqualified paralegal Chris Gill, disqualified/excluded attorney Timothy Tippins and consultant, Dr. Jonathan Gould, exchanged confidences (actually or presumably) with three of respondent's forensic experts--Drs. David Martindale, William Austin and Matthew Sullivan (collectively "Experts")--such that each of the Experts was tainted by the removed personnel and must also be removed.  Alternatively, the court should presume that such confidences were exchanged or conclude that, as a fact, due to the circumstantial evidence presented, such confidences were exchanged with the three forensic experts.
	I request that the court consider my declaration in support of precluding Dr. Jonathan Gould along with this declaration, as I have not repeated that information here, for the sake of brevity.
	In this case I attempted to discover the entire files of all three forensic experts by serving respondent's counsel with a notice for each expert to appear and produce at his respective deposition.  Not one of the three experts produced any notes from the two forensic team meetings which were held at the office of attorney Baugh.  In his deposition Dr. Sullivan admitted he did not take notes.  
	At the depositions of Drs. Martindale and Austin, I copied every single piece of paper they produced (including the "thumb" drive which Dr. Martindale produced), and there is not a word in those notes about the two team meetings.  Assuming they did not have notes which they did not produce, the conclusion is inescapable that at the team meetings Dr. Martindale and Dr. Austin did not take notes.
	Dr. Martindale appears to have such a strong position on "Transparency" of a forensic expert's work that he has personally written on the subject of "Integrity and Transparency:  A Commentary on Record Keeping in Child Custody Evaluations" and took the major step of resigning in protest along with others from the APA due to differences regarding transparency, as explained by him at his deposition:
	8    Q    Are you a member of the American 
             9    Psychological Association?
            10    A    No, I am not.
            11    Q    Were you ever a member of the APA?
            12    A    Yes, I was.
            13    Q    When were you last a member?
            14    A    I resigned from the APA I believe in 2002 or 
            15    possibly 2003 after the release of the New Ethics 
            16    Code.
            17    Q    And what was the cause of your resignation?  
            18    A    I resigned, as did several other members, in 
            19    protest of the New Ethics Code.
            20    Q    Was there any particular presence or absence 
            21    of items in those New Ethics guidelines that 
            22    caused your resignation?      
            23    A    Yes.
            24    Q    What was that?
            25    A    I was very concerned about the watering down 
             1    of the Ethics Code that occurred between 1992 and 
             2    2002, particularly the sections of the Ethics Code 
             3    that pertained to forensic work.  
             4    Q    Can you give me a couple of examples of 

             5    specifics, if you have them in mind?
             6    A    Well, the most dramatic was that in the '92 
             7    code, section 1.23 addressed retention of records.  
             8    And that got completely dropped from the 2002 
             9    code.  
            10              There is nothing in the 2002 code that 
            11    emphasizes our responsibility to retain our 
            12    records.  
            13    Q    Was there a change in the code regarding 
            14    keeping records in anticipation of judicial 
            15    scrutiny?
            16    A    Yes.  But I think the words that you're using 
            17    are from the specialty guidelines.  Oh, I'm sorry.  
            18    Custody guidelines.  
            19              The APA Custody Guidelines say that we 
            20    take our records in anticipation of their review 
            21    by other professionals or the court.  
            22    Q    OK.  And you disagreed with that watering 
            23    down of those standards, correct?
            24    A    Yes. (pages 13 to 14)

Other than a Faustian bargain, it is difficult to understand why this zealous advocate of transparency would abandon such deeply held principles and attend forensic meetings and take not a word of notes at two 3-hour meetings.
	The point of this declaration is not to argue that the experts are not credible (clearly a trial issue) but to point out that they are all acting in concert and, given that no notes show they received similar instructions, it is inferrable that one of the subjects of the team forensic meetings was what they should title their reports (which they don't call "reports" but "declarations") in order to evade criticism and the consequences of their own published advice.  Their all having produced "declarations" and eschewing the idea they did a critique, a report, or a review seems extremely coincidental.  But the point isn't that it's suspicious.  The point is that it raises more questions about the joint forensic meetings with the attorneys and consultant and suggests the verbal instructions were given at those meetings, the contents of which have been concealed.  The concealment of the contents (and until after Dr. Austin's deposition of the very existence of) joint team meetings prevents petitioner from being able to show what was the true relationship between the attorneys, the consultant and the three forensic experts.  It is completely improper in a forensic context and should result in the unusual step of placing a non-rebuttable burden on respondent.  If a rebuttable burden is placed on respondent, petitioner requests the opportunity to (1) subpoena the notes of Dr. Gould and the two attorneys regarding the team meetings and (2) to take the deposition of anyone who contends that no privileged information was exchanged at such meetings.
	The consultant Dr. Gould along with the forensic experts in 2004 wrote an article on "Critiquing a Colleague's Forensic Advisory Report:  A Suggested Protocol for Application to Child Custody Evaluations."  However, they now claim that the requirements they themselves stated in their own article do not apply because they did not do a critique but a "declaration" or "work product review."  In that article--which dovetails with Mr. Tippins' email--they have a section titled "Expert versus Consultant."  They go into detail, explaining the difference between these two roles, including explaining:
. . . . "[O]n the respective ends of the continuum are the 'expert' whose commitment is to finding and expressing the truth, versus the 'consultant,' whose commitment is to assisting attorneys in their preparation of cases for litigation and helping attorneys understand psychological evidence.  The two roles can be oppositional to one another." (Page 41, Ex. C)

They go on to explain:

. . . . When the forensic specialist is hired as a consultant, it is important that the attorney hires the expert directly.  In this way, all work conducted for the attorney is covered under the attorney work-product privilege. (Gould, 1998. . . ) (Page 42)

They further differentiate the roles of expert and consultant:

	From the legal perspective, the forensic mental health consultant is an agent of the attorney and is anchored to the attorney-client privilege. (Page 42)

This, of course, militates in the direction of disqualification of Dr. Gould.
	The three forensic experts in this case have carefully attempted to define their way out of ethical and professional problems by claiming they did not do a review and did not do a critique of Dr. Gordon's work.  The use of the term "work product review" appears to be an attempt to bring themselves within the attorney work product privilege, which, of course, didn't apply after they were disclosed as experts.
	While this hair-splitting should not be effective for them to wriggle out from under the fact that they did review Dr. Gordon's work, it raises a different, interesting issue.  It seems quite readily inferrable that one of the subjects at the team meeting with the attorneys and Dr. Gould was that directed the consultants were dicrected to produce "declarations," not "reports" as would be usual in a forensic case.  If each of the experts had made his own decision as to the format of his report, they wouldn't all have been identical.  If attorneys Baugh or Tippins or Dr. Gould had communicated to them the instruction to produce a "declaration," not a report or critique, such instruction should have appeared in their own notes or emails (which they produced to petitioner's counsel)---and it does not.  Therefore, the instruction had to be verbal and given at the meeting where no notes were taken. The question is thus raised as to whether the purpose of the team meetings was to ensure not only agreement on a literature base and division of work to ensure agreement but also on issues like claiming they did "declarations," not reports, not critiques--so none of them could be confronted with the professional literature which they themselves had created.  Each of the three experts wrote a "declaration" about Dr. Gordon's work and claimed it was not a review and not a critique but a statement of what his own testimony in court would be.  For example, the first page of Dr. Martindale's report (Exhibit 2 to his deposition) shows it is a declaration and he testified:
  	11    Q    Do you regard Exhibit 2 as a critique of Dr. 
            12    Gordon's report?
            13    A    I do not.  But we're dealing with a word 
            14    issue.  (Page 18, Dr. Martindale's deposition)

Now disagreeing with the wording of the article of which he is co-author, Dr. Martindale described the nature of his present work:
  	10              THE WITNESS:  I describe what I do in 
            11    all cases, including this one, as work product 
            12    reviews. (Page 21 deposition)

Dr. Austin hewed to this same use of semantics, as labeling his report a "work produce review" would free it of the obligations he himself stated for a "critique":  
3 Q. ON PAGE 40, YOU DISCUSS A REVIEW AND A
4 CRITIQUE IN THE FIRST FULL PARAGRAPH [of the article]. I WAS -- THAT'S
5 WHAT I'M TRYING TO FIND OUT. IS THERE A DIFFERENCE
6 BETWEEN A REVIEW AND A CRITIQUE?
7 A. NO.
8 Q. THEY'RE THE SAME THING?
9 A. THEY'RE -- I BELIEVE THEY ARE DIFFERENT TERMS
10 THAT ARE USED TO REFER TO THE SAME PROCESS OF REVIEWING
11 THE WORK PRODUCT OF ANOTHER PROFESSIONAL. WE PREFER TO
12 USE THE TERM "WORK PRODUCT REVIEW." (Deposition, page 24)

Then, attempting to steer away from all the ideas he and his confreres had published about doing a critique of an expert's work, Dr. Austin even claimed his present product was not "work product review":
14 THE WITNESS: I WAS NOT ASKED TO PREPARE A
15 FORMAL WORK PRODUCT REVIEW OF DR. GORDON'S REPORT. I
16 WAS ASKED TO PREPARE AN AFFIDAVIT -- I GUESS IT'S OFTEN
17 CALLED A DECLARATION HERE -- ABOUT AREAS OF TESTIMONY
18 THAT I ANTICIPATED I WOULD GIVE. I WAS NOT ASKED TO
19 GIVE THE TOTAL SUBSTANCE OR A COMPREHENSIVE DESCRIPTION
20 OF WHAT THAT TESTIMONY WOULD BE.
21 THIS DOCUMENT DOES DESCRIBE IN MORE DETAIL THE
22 AREAS OF RESEARCH THAT WOULD BE RELEVANT TO THIS CASE
23 WHERE IT WAS ANTICIPATED THAT I WOULD GIVE TESTIMONY.
24 CONCERNING AN ANALYSIS OF HER METHODOLOGY OR QUALITY OF
25 HER CORRESPONDENCE OF FINDINGS TO DATA, I WAS RESERVING
1 THAT FOR MY TESTIMONY IN RESPONSE TO SPECIFIC QUESTIONS. (Pages 28-29 of deposition)

	Hewing to the public line, Dr. Sullivan, too, claimed he did a "declaration," not a review or critique of Dr. Gordon's work.  
	By claiming not to have done a "review" or a "critique," the experts could avoid having to explain why they did not abide by their own written advice, such as:

The use of work product reviews is a mechanism by means of which MHPs
can police themselves. It is a mechanism for holding forensic practitioners to
at least minimal standards of competence (Weissman, 1991) by scrutinizing
the quality of their forensic evaluation. A review informs the court on the reli-
ability and relevance of the expert testimony because, as some sources indi-
cate, courts often are not very knowledgeable about underlying research
(Kelly & Lamb, 2000) or are poorly equipped to recognize problems in evalu-
ations (Stahl, 1996) and the use of science (Gould & Lehnnann, 2002; Shuman,
2002). A competent review allows the court to be a more sophisticated con-
sumer of a forensic mental health evaluation (Heilbrun, 2001). (Page 39 of Exhibit C;
bold added.)

Their article has a succinct chart on how to do a review of a child custody evaluation (CCE):

TABLE 3. Questions to Consider in Reviewing a CCE
1. Did the evaluator dearly define the main problems or Issues to be resolved?
2. Did the evaluator clearly Identify the legal questions relevant to the behavioral data to
be collected?
3. Did the evaluator identify the factors to be measured?
A. Did the evaluator articulate testable hypotheses for the evaluation?
5. Did the evaluator consider rival and/or plausible alternative hypotheses?
6. Have the criteria defining the best interests of the child been dearly outlined?
7. Did the evaluator identity developmental outcomes and the data upon which the specific
predictions are based? (Exhibit C, page 50)

But if all the forensic experts agree they not only didn't do a critique, they didn't even do a "review" of the work of Dr. Gordon (court's expert), they don't have to explain why they didn't examine items listed as 1-7 in their own chart.  
	The forensic team meetings came to light only at Dr. Sullivan's deposition, which was conducted after Dr. Austin's deposition.  Like the others, Dr. Austin was noticed to produce every shred of paper he had connected with the case.  At his deposition, Dr. Austin produced a huge 3" stack of papers which constituted his file.  I had every page of that 3" stack copied and made into an exhibit to the deposition.  It does not contain anything about billing (except a copy of the bill of Dr. Bukstein, a neutral, court selected expert).  By concealing Dr. Austin's billing, respondent's side of the case concealed the existence of the secret team meetings until Dr. Sullivan's deposition.  Without full documentation of what transpired at the two 3-hour team meetings, there is no way to evaluate the nature of what was shared by Dr. Gould, the three forensic experts, the two non-excluded attorneys and/or Mr. Baugh's disqualified paralegal.
	A review of Dr. Austin's file makes it clear he takes notes on everything (except the secret team meetings).  He summarized in his handwriting almost every writing in the file.  He wrote everything---except notes for the two 3-hour meetings.
	Furthermore, Dr. Austin produced one email with a cc from him to Marianne Gill, who, by the tesimony of attorney Baugh, is the sister of now-disqualified paralegal Chris Gill.  It is unknown how much contact Dr. Austin and/or the other forensic expert and/or Dr. Gould had with Chris Gill's sister.  Attorney Baugh had described Marianne Gill as his long-time paralegal, with Chris Gill having been employed more recently.  
	Dr. Sullivan withheld copies of his emails, in spite of the notice to produce at the deposition, and attorney Baugh mailed them to me on April 17, 2008, which prevented me from receiving them until after Dr. Martindale's deposition.  It was in this package of emails that the expression "team" meetings appeared in quotation marks.  Even more significantly, almost all the emails show that copies went not only to Dr. Sullivan but also to Drs. Austin and Martindale from Dr. Gould.  Those two experts did NOT produce those emails, thereby concealing that Dr. Gould was mailing specific copies of literature to them.  They were thus obscuring the role of their co-joint-venturer in Child Custody Consultants, a Consulting Consortium.  Only Dr. Sullivan--not a member of the "consortium"--produced the emails.  Dr. Sullivan lives in California, unlike the other consultants.  A review of Dr. Martindale's curriculum vitae shows that not only have the non-California experts published joint articles extensively together but also have articles presently "in press," which presumably has required frequent ongoing contact.  The word "cabal" is coming to mind.  
	There is no way to separate the experts from Dr. Gould.  The experts who routinely work with him concealed their emails.  Only Dr. Sullivan in California produced his emails (except one or two Dr. Austin had sprinkled in his file).  They have obscured their inter-relationships in an attempt to prevent precisely the type of inquiry the court is conducting.  This entire set of circumstances is a reason to impose a non-rebuttable presumption of shared confidences and preclude them all from further participation in the case.
	Executed at Campbell, California, on August 5, 2008.  	
	I declare under penalty of perjury under the Laws of the State of California that the foregoing is true and correct. 
					_______________________________________
					ROBIN YEAMANS, Attorney for Petitioner