It is common that an aggrieved claimant in church litigation will sometimes claim that they suffered emotional distress that resulted in psychological injury. There is a tendency to be dismissive of these claims. That is not surprising given that in many parts of the United States there is no commitment to treatment of mental illness regardless of its cause. Also, mental illness or emotional injury do not typically present with objectively measurable evidence of causation. Treatment is to the untrained seemingly mystical or doubtful. Deposing mental health professionals can be among the more frustrating depositions in civil practice because lawyers tend to think in concrete terms for persons trained in the fine arts but mental health professionals tend to speak, and probably think, in terms of subjective abstractions. That does not mean one is true and the other false, although in concrete thinking that is the snap judgment often made, but it does mean the two are difficult to reconcile.

In Stevens v Brigham Young University Idaho, Memorandum Decision and Order (D. Idaho, 2019), the student plaintiff self – reported “an inappropriate non-academic relationship” with a faculty member and apparently sued regarding the relationship. The court opinion resolved three motions: 1) a claim of common interest attorney client privilege between the university and the church to protect the work product interview notes of a staff attorney of the university; 2) a motion to compel an independent medical examination of the plaintiff because of her claim of emotional injury; and 3) the university’s motion to enforce a waiver by the plaintiff of the priest – penitent privilege. The court held that the church and university had not presented sufficient evidence of cooperation in formulating a common legal strategy to support a claim of common interest privilege. However, the attorney’s work product notes were not discoverable in any event, after in camera review by the judge, because the plaintiff did not prove undue hardship or substantial need for an exception to the work product privilege. The court ordered the requested independent psychiatric medical examination of the plaintiff and refused to impose most of the limitations or requirements demanded by the parties. The university’s demand that plaintiff’s priest – penitent privilege be treated as waived was denied. The plaintiff consulted various church leaders both in the church and the university to obtain an “ecclesiastical endorsement” so she could return to the university as a student. However, the “ecclesiastical endorsement” was not forthcoming and plaintiff did not sue regarding those decisions. Plaintiff’s experts quoted those consultations in their written reports of their opinions which was the basis of the waiver claim by the university and the church. But, the court entered an order making those parts of the reports inadmissible at trial. Because there was no claim by the plaintiff on the sought endorsements, the court did not think the privileged consultations were placed at issue in the case and denied the waiver. The rulings on the three motions did not resolve the case and it proceeded.

Lawyers that intend to coordinate a defense with a sponsoring church or other para-church organization should do so with a signed undertaking that formalizes the relationship and specifically authorizes exchanges of attorney work product and otherwise privileged communications between the entities, their counsel and jointly engaged experts, especially including fact witness interviews. An omnibus agreement is too often forgotten in the mists of time so a separate agreement customized for the pending case should be reduced to writing. No assumption about this should be made; denominational governance documents may or may not be sufficient for the particular case. Church lawyers that do not routinely defend bodily injury and emotional distress claims should consult with lawyers that do so that effective discovery of these claims can be engaged. Spend the money needed to engage fully qualified experts, and not just church or para-church staff, or settle the case.

• Parachurch Organizations