Many court cases are decided upon whether the jury regards a plaintiff as faking his/her condition. Intentional and conscious fabrication of symptoms or injuries is called malingering. How do you determine whether your client is faking? This is not a simple matter. There are only a few tests that can assess malingering and then only for specific conditions. As an example, we can fairly accurately assess the faking of a psychosis or memory problems. However, it is not possible to accurately predict whether someone is faking trauma or depression through psychological testing.

If you want to consider the use of an expert witness to assess malingering, it is important to note that research shows mental health professionals do not do better than anyone else in distinguishing those who are lying from those who are truthful. This is because most experts are not trained specifically to rule out malingering. A trained expert can infer with increasing probability whether a client is faking by assessing the following: 1) Inconsistencies in reporting such as contradictory symptomology or differences in observed vs. reported symptoms; 2) dramatic presentation; 3) too deliberate and/or careful in presentation; 4) symptoms that are incongruent with a particular disorder such as flat affect with an anxiety disorder.

If your client appears to be cooperative rather than defensive in the assessment of his disorder or injury, he/she is probably not a malingerer. It is also important to note that malingering and true symptomology are not mutually exclusive. In other words, a person can be suffering from a disorder, but the sufferer is embellishing or distorting the true symptom. Overall, an expert can be useful where the critical issue in the lawsuit is the credibility of the alleged victim.