Free Speech

Psychology and Pseudonymity

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Some courts have allowed a plaintiff or a defendant to proceed pseudonymously based on a finding that identifying the party would yield "mental harm," e.g.,

Plaintiff's primary therapist from 2010 to 2011 has declared under penalty of perjury that not allowing Plaintiff to litigate this action under a pseudonym "has the serious risk of causing Jennifer to relapse into her eating disorder behaviors."

and

[P]laintiff offers the opinion of … a psychiatric specialist in Dissociative Identity Disorder, from which the plaintiff suffers, that proceeding publicly would "cause her to decompensate [psychologically] to a point at which she could not … pursue the current legal process and would suffer severe risk to her safety and to her survival." … [T]he plaintiff has presented particularized and undisputed evidence that proceeding publicly would seriously threaten her mental health, requiring her to choose between dropping her action and placing her life in jeopardy. As a result of this newly provided evidence, the court finds that the plaintiff has provided evidence of an exceptional circumstance warranting authorization to proceed anonymously.

Do any of you know (whether based on your experience as psychologists, as lawyers, or otherwise) how reliable these sorts of evaluations might be?

My sense is that very many people who are faced with litigation that risks public disclosure of various things would be quite upset by that. If someone was accusing you of, say, sexual assault or embezzlement or malpractice—or if you were suing for libel or wrongful firing or wrongful expulsion that stemmed from such allegations—I expect you might be worried about the prospect that this information would become public. I would think you might feel anxiety; lose sleep; be tempted to turn to alcohol or drugs; or perhaps even contemplate suicide, especially if you feel that public exposure would yield professional ruin.

This makes me wonder whether courts can reliably sort "the foreseeable stress of being a named defendant in a lawsuit," especially one that involves serious allegations, from other kinds of more serious psychological risk. And that would be especially so when the pseudonymity determination is based (as these things generally are) not on a contested evidentiary hearing, but just on an affidavit from a psychologist or therapist chosen by the party who seeks anonymity, with no cross-examination. But perhaps I'm mistaken, and psychologists are reluctant to make such assertions absent real evidence that their clients are unusually vulnerable; or perhaps there are other tools to make sure of that. Do any of you either have personal experience along these lines, or can point me to articles that deal with the matter (or experts who might be able to give me some perspective)? Thanks!

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  1. "...Do any of you know (whether based on your experience as psychologists, as lawyers, or otherwise) how reliable these sorts of evaluations might be?..."

    I suspect that there will be almost no data out there (at least, data that are quantifiable). That's because what you're really asking is, "In cases where a party made a motion, based on an expert's option of significant future harm, and that motion was *denied*...how likely was it that there was, indeed, the feared future harmful result? When I was studying to be a psychologist, I don't remember reading any research or findings along this line. Maybe due to the difficulty in gathering this sort of data; maybe due to something else. And, in law school and as a lawyer, I've never seen similar studies. (Although, since it's the case that in the Los Angeles County child abuse courthouse, children's names being anonymized is the default position, so I'm perhaps not in the best position to judge.)

    1. option of future harm...should be, of course...

      opinion of future harm

    2. I would imagine that sample size would be an issue, along with significant self selection bias.

  2. I think we're skipping the underlying issue here, which is that being in the court system is itself a bad thing. But don't take my word for it:

    “Agree with thine adversary quickly, whiles thou art in the way with him; lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison.”

    Matthew 5:25

    "I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death."

    -- Judge Learned Hand, from "The Deficiencies of Trials to Reach the Heart of the Matter", in 3 "Lectures On Legal Topics" 89, 105 (1926), quoted in Fred R. Shapiro, "The Oxford Dictionary Of American Legal Quotations" 304 (1993).

    https://judgelearnedhand.blogspot.com/

  3. As a California litigator, I often had plaintiffs tell me in deposition that the stress of litigation was emotionally distressing to them. It was generally understood that they could not recover for the emotional distress of litigation, but no one could seem to say why, and I couldn’t find law on the point.
    I finally decided that the reason was the “litigation privilege” of Cal. Civil Code §47.
    This logic could possibly be extended to say that since the way the other side litigates the case can’t yield damages, it may not be grounds for pseudonymity.

    1. Why should the long suffering public suffer distress at the hands of vile criminals like lawyers? We are sick of you, scumbag lawyers. Everyone wants you dead. You are in failure in every self stated goal of every law subject. We have to get rid of you vile scumbags.

      If you fail to end all immunities, violence will be justified in formal logic. The legal system must acknowledge that criminal thinking is superior to idiotic and insane legal thinking. Immunity should be an absolute defense to homicide. Formal logic is superior to your idiotic doctrines.

      1. Not "criminal" thinking, "critical."

  4. Eugene is an adult. These are real issues with life changing and very personal implications that one thinks about as to children and parenting.

    Others (koff koff) don’t think of these things in adult terms.

  5. In this case it was the PLAINTIFF who pleaded fear-of-court. My advice: If you're afraid of court, don't bring a lawsuit.
    Give me your address and I'll send my bill.

  6. This makes me wonder whether courts can reliably sort "the foreseeable stress of being a named defendant in a lawsuit," especially one that involves serious allegations, from other kinds of more serious psychological risk.

    Doesn't that, "more seriously," (presumptuously) answer the question it purports to ask?

  7. I am an emergency physician, not a mental health 'practitioner'.

    My opinion? These opinions are equally valid with those of mental health practitioners like Dr. Bandy Lee, who made terrible accusations about President Trump, without ever examining him. In my profession, it would be malpractice for me to diagnose a patient without examining him or her...but hey, orange man bad...

    Working with mental health practitioners on the front lines (Emergency Departments, where the ill come to play) most of the patients would benefit more from a locked psych ward, than a courtroom or wandering around in society

    1. Doctor. I filed a well crafted complaint against Dr. Lee. It included a citation of a Supreme Court decision. It included her admissions in her book of the violations of professional standards. The license board of Connecticut, acknowledged receiving it. It just ignored it.

  8. As someone who has been both a social worker and a lawyer, I can tell you that the ordinary person is terrified of lawyers and the legal system, and being sued (or having to sue) is a uniquely stressful experience which brings up unique issues that are swatted away by some people but are profoundly traumatic for others.

    1. There is a good reason for distress, scumbag lawyer. You people are crazy and unpredictable, full of shit. Nothing you do has the slightest external validation or justification. You stink. The sole validity of your decisions is a man with a gun.

      It is high time the lawyer scumbag began to fear the public. Start with the arrest of the 25000 people in the hierarchy of this criminal enterprise. Try them an hour. The sole evidence would be their lawless legal utterances. Upon the verdict of insurrection against the constitution, shoot them in the court basement. To deter.

  9. Professor Volokh, you may have just encountered a legal syrategy that may completely defeat your point of view.

    Psychologists can’t reliably predict future dangerousness, but that doesn’t stop the legal system from relying on their assessments. Parties will probably be able to find psychologists willing to testify to their vulnerability on this issue as easily as they can find them on others. (Future dangerousness, fitness to be parent, etc.)

    And judges may well listen.

    And the rich will likely be the ones who benefit.

  10. "the foreseeable stress of being a named defendant in a lawsuit," especially one that involves serious allegations, from other kinds of more serious psychological risk.

    I'm puzzled here. What difference does it make, in the case of a defendant if the distress is forseeable or not? Few people choose to be defendants - at least directly.

    ISTM that the bias should be in favor of granting defendants anonymity if there is any sort of basis for doing so.

    that would be especially so when the pseudonymity determination is based (as these things generally are) not on a contested evidentiary hearing, but just on an affidavit from a psychologist or therapist chosen by the party who seeks anonymity, with no cross-examination. But perhaps I'm mistaken, and psychologists are reluctant to make such assertions absent real evidence that their clients are unusually vulnerable;

    As a general proposition, I would place more faith in the professional opinion of a psychologist than in the outcome of some sort of hearing. I don't think having lawyers cross-examine psychologists is as sound a method of fact-finding as others do. If the judge suspects the affidavit is from a rent-a-witness type he can, I guess, always appoint another expert to help determine what's going on.

    1. bernard11: I appreciate your misgivings about lawyers' limitations in cross-examining psychologists; that definitely has its problems. But the affidavits in such cases will routinely be from a psychologist who was selected by the person seeking pseudonymity -- sometimes someone whom the person has been seeing for a long time, and who feels a professional obligation to the person; sometimes someone whom the person has turned to just for the occasion, and who may have been selected precisely because of his willingness to see the risk of serious trauma. The person wouldn't exactly come across a "rent-a-witness" as such, just someone who, faced with the great uncertainty involved in such situations, ends up giving a report favorable to the person who came to him for help.

  11. The same issue could be raised for numerous first amendment issues. Psycholgists cous start testifying that certain kinds of speech really triggers their clients and should be removed from college curricula, social media posts, etc.

    The current arguments regarding safe spaces and triggering speech generally could become professionalized.

  12. It's a BS. Just like RFRA claims.

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