Bench & Bar May/June 2026

Despite their killjoy attitude and a puzzling inability—despite fielding an impressive team that positively drips with academic all-rounders—to spell basic words like “favor,” the Academy makes a series of excellent points, and it’s not as if adhering to this guidance will leave experts selling pencils from a tin cup and in front of a plac ard reading “Will Opine for Food.” Are there recognized wellness benefits to our willingness to wander outside our established comfort zones and “try?” Yes, according to psychologist and mindful ness expert Dr. Karyn Hall, who opined in Psychology Today (https://tinyurl.com/con tingency-khall) that “the lack of novelty is limiting to our mental wellness,” that trying new things “helps us to develop more flexible thinking,” and that from a neuro biological standpoint, such behaviors “can make your brain release dopamine” with an associated flood of positive feelings. The prospect of coming up short—and the toll this result can exact in a very personal way—encourages us to take full measure of the guidance proffered by the “National Task Force on Lawyer Well-Being” (the “Task Force”), an entity “conceptualized and initiated by the ABA Commission on Lawyer Assistance Programs (CoLAP), the National Organization of Bar Counsel (NOBC), and the Association of Profes sional Responsibility Lawyers (APRL)” and made up of several other “participat ing entities” from within and without the American Bar Association (https://tinyurl. com/ntflwb). The Task Force has identified six pillars or “dimensions” that combine to “make up full well-being for lawyers,” one of which is the “emotional” dimension, in service of which we attempt not only to recognize the “importance” of our feelings, but also to “identify and manage” them in order to “support mental health,” to “achieve goals,” and to “inform decision-making.” When we accept that to “try” is often to fail—in literal practice as well as in broader aspiration— we draw strength from having developed an inner well of emotional resiliency that sustains us when we fall short of our cli ent-centered goals.

Is the phenomenon of mental health experts being banned from the temple of contin gency fees a form of karmic retribution for penning phrases like “differential reinforce ment of other or incompatible behavior?” It would be tempting to indulge this theory, but the truth lies instead in our recognition that psychologists, too, are prey to incentives that are incompatible with the ethicality an objective source of technical knowledge is supposed to model. As described at https:// tinyurl.com/contingency-tae, The Academy of Experts, a well-regarded concern based in London, UK, opined persuasively—as mildly edited for modern usage—that: It is clearly established law that Expert Witnesses in adversarial proceedings must give the court, or tribunal, their independent, objective and unbiased opinions on the aspects of the case that come within their expertise. The Expert Witness is not an advocate employed on behalf of a party. An Expert Witness’ written report and oral evidence must genuinely reflect their independent opinion. An Expert must not mislead a court or tribunal by placing undue emphasis on points that favour their client, whilst omitting or understating legit imate points that they believe go against their client. The Judicial Committee considers that any form of contingency fee arrangement for Expert Witnesses is incompatible with the Experts’ duty of independence and impartiality. A contingency fee means that the Expert Witness has a direct financial inter est in the outcome of the case. Such a direct financial interest must increase the pressures on Expert Witnesses to give evidence that favours their client. Even if an Expert Witness resists this pressure, their independence may still be compromised. An Expert Witness must not only be independent, but must be seen to be independent. The Judicial Committee considers that a contingency fee arrangement, in this context, is any arrangement that leads to the Expert Witness having a financial interest in the outcome of the particular case.

ABOUT THE AUTHOR

DR. ERIC Y. DROGIN is a Norton Healthcare Louisville Hospitals Med

ical Staff member with clinical privileges in adult psychology. A clinical faculty member of the University of Louisville School of Medicine, he also teaches on the faculty of the Harvard Medical School, where he serves as the Affili ated Lead of Psycholegal Studies for the Psychiatry, Law, and Society Program at Brigham and Women’s Hospital and participates in the Program in Psychi atry and the Law at the Massachusetts Mental Health Center and the Forensic Psychiatry Service at Beth Israel Dea coness Medical Center. Proud to be a Kentucky lawyer for the last 35 years, Dr. Drogin is a former chair of the ABA Science & Technology Law Section and a former president of the American Board of Forensic Psychology. Please contact him at eyd@drogin.net with your suggestions for lawyer mental health and wellness topics.

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