1. THE IMPORTANCE OF USING PSYCHOLOGICAL TESTS TO IDENTIFY FAKED,
EXAGGERATED OR MALINGERED SYMPTOMS IN LITIGATION:
An Introduction for Attorneys
January 8, 2006
Stuart J. Clayman, Ph.D.
Licensed Psychologist
75 Potter Pond
Lexington, MA 02421
Tel.: (781) 862-4292
Fax: (781) 861-1993
jay@braindoctor.org
Introduction
According to Ziskin1
, “The accuracy of information obtained from a litigant is frequently
the most critical element in the case.” In a treatment practice, psychologists,
psychiatrists and social workers provide psychotherapy treatment services to individuals
complaining of psychological symptoms. Patients seeking psychotherapy usually have
little or no motivation to present themselves as either more or less psychologically
impaired than they really are. Therefore, the treatment provider has no need to assess a
patient for exaggeration or faking of psychological symptoms. However, when a mental
health expert conducts an evaluation of a litigant claiming psychological damages, there
is often a strong external incentive, frequently in the form of money damages or
avoidance of responsibilities, which can sometimes motivate a litigant to magnify or
minimize psychological symptoms in order to obtain those incentives.
This article will highlight some issues that can arise when mental health professionals
evaluate litigants for exaggerated or faked symptoms of depression or anxiety using an
interview alone (without psychological tests). This discussion is relevant to the
assessment of exaggeration or faking in personal injury, worker’s compensation,
disability and other civil claims involving emotional distress. This article does not address
malingered “cognitive” symptoms such as memory deficits, attention problems or
impairment of concentration, nor is it relevant to the assessment of exaggeration or
faking by criminal convicts or defendants charged with criminal offenses.
Symptoms of depression occur in a variety of mental disorders. Some disorders in which
depression is salient include Major Depressive Disorder, Bipolar Disorder, Dysthymic
Disorder and Adjustment Disorder with Depressed Mood. Symptoms of anxiety also
occur in a variety of disorders such as Posttraumatic Stress Disorder, Generalized
Anxiety Disorder and Panic Disorder, among others.
The Definition of Malingering
1
Ziskin, Jay, Ph.D., Coping With Psychiatric and Psychological Testimony. Law and Psychology Press,
Los Angeles, 1995, page 1135

2. Malingering is defined in the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV) as: “…the intentional production of false or grossly exaggerated physical or
psychological symptoms, motivated by external incentives…”2
How Often Does Faking or Exaggeration Occur?
The actual number or percentage of individuals who exaggerate or fake psychological
symptoms is not known. Estimates vary a great deal. Reported rates of malingering
range from 1% to more than 50%. For example, Rogers, Sewall and Goldstein obtained
estimates of malingering of nearly 16% from a group of 320 forensic psychologists.3
Rates of malingering depend upon a variety of factors. One factor is the setting of the
evaluation. There appear to be factors inherent in a treatment setting that inhibit doctors
from assigning a label of exaggeration or faking to their patient even when the data
supports such a finding. Among these are fear of harming the treatment relationship and
legal liability. With some specific mental disorders, there should be heightened concern
about exaggeration or faking on the part of the psychologist. Posttraumatic Stress
Disorder may be one of those disorders. Phillip Resnick noted that diagnosing
Posttraumatic Stress Disorder depends upon the subjective report of symptoms by the
litigant and that information about the required symptoms is readily available. He said:
“The clinician who in a legal context evaluates a claimant for Posttraumatic Stress
Disorder (PTSD) must consider the possibility of malingering.”4
Tools For Assessing Faking
Psychologists have a number of tools used to identify exaggeration or faking of
psychological symptoms. Among these are clinical interviews, observations and
psychological testing. Reviews of medical records and “collateral contacts” (interviews
of family members or others who know the litigant) can also be helpful sources of
information. The remainder of this article will focus on the usefulness of the clinical
interview in identifying or ruling out exaggeration or faking of psychological symptoms.
The Clinical Interview
The terms “clinical interview”, “psychodiagnostic interview” and “history” are often used
interchangeably. These terms all refer to a face-to-face meeting with an individual during
which a clinician asks questions of an examinee in order to understand the examinee’s
relevant history and current psychological functioning. During the interview, the clinician
asks the plaintiff about his or her past and present psychological symptoms and about
the types and effectiveness of treatments . Information may also be obtained about how
the psychological symptoms may affect interpersonal relationships, daily activities, ability
to work, stress tolerance and other areas of functioning. Using interview techniques, the
psychologist can explore the plaintiff’s reaction to any trauma alleged to have caused
emotional distress or psychological symptoms. The psychologist should also explore
alternate factors that could have caused or contributed to the emotional distress in
addition to the identified trauma.
2
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. American Psychiatric Association.
Washington, D.C.,1994, page 683.
3
Rogers, R., Sewell, K.W., & Goldstein, A. Explanatory models of malingering: a prototypical analysis.
Law and Human Behavior, 1994, 18, 543-552.
4
Resnick, Phillip, J, MD. Guidelines for the Evaluation of Malingering in Posttraumatic Stress Disorder in
Simon, Robert: Posttraumatic Stress Disorder in Litigation. American Psychiatric Press, Inc. Washington,
D.C., 1995.

3. Problems With Using the Interview as the Sole Measure of Malingering:
An interview can be very helpful in learning about an examinee’s past and present
symptoms and level of functioning but, by itself, an interview appears to be insufficient to
determine whether a litigant is exaggerating or faking psychological symptoms. A classic
study demonstrating how incorrect conclusions can be drawn from an interview was
conducted by David L. Rosenhan in 19735
. In this study, eight psychologically normal
people sought admission to twelve different psychiatric hospitals in five states. After
calling ahead for an appointment, the “pseudopatients” arrived at the hospitals
complaining of hearing voices. They provided the hospital with a false name and
vocation but made no other falsifications of who they were or of their history and
subsequently made no further simulation of any symptoms of mental illness. Even
though they acted “normally” on the hospital wards, not one pseudopatient was identified
as exaggerating or faking a mental illness. This study demonstrated how readily
psychiatrists, using interviews without psychological tests, can be mislead into
diagnosing a severe mental disorder. David Schretlen, reviewed a number of reports in
which exaggeration, faking and malingering were studied scientifically and he noted:
“The findings suggest that until research validates use of the diagnostic interview for this
purpose, it is probably indefensible to render expert testimony regarding the likelihood of
malingering without psychological test data bearing on this question”.6
Conclusions: Psychological Tests Can Help; Interviews Not Helpful
Clearly, malingering of psychological symptoms is an important issue that should be
addressed in psychological evaluations occurring within a legal context. Currently, there
is no data I am aware of that shows that mental health professionals can rely upon an
interview alone to accurately identify exaggeration or faking of psychological symptoms.
There is a distinction, however, between a psychodiagnostic interview and a newer type
of exaggeration assessment tool called a “structured interview”. Structured interview
techniques, such as SIRS and M-FAST have been shown to be effective in identifying
exaggeration or faking of psychological symptoms.
A mental health professional who testifies about the absence or presence of
exaggeration, faking or malingering based on interview material alone should be
challenged as to the scientific basis for his or her conclusions. Fortunately, there are
some psychological tests, such as the Minnesota Multiphasic Personality Inventory
(MMPI-2), that show great promise as tools that can assist the clinician in making
accurate assessments regarding the presence or absence of exaggeration or faking of
psychological symptoms.
5
Rosenhan, D.L. On Being Sane in Insane Places. Science, 1973, 179, 250-258.
6
Schretlen, D.J. The use of psychological tests to identify malingered symptoms of mental disorder.
Clinical Psychology Review, 1988, 8, 451-476.