This action might not be possible to undo. Are you sure you want to continue?
The Psychiatrist as Expert Witness
This page intentionally left blank
D. Harvard Medical School Boston. M. Massachusetts Washington. DC London. Gutheil. England .The Psychiatrist as Expert Witness Second Edition Thomas G.
Food and Drug Administration and the general medical community. Moreover. Gutheil has no competing interests to disclose. Books published by American Psychiatric Publishing. As medical research and practice continue to advance. VA 22209-3901 www. Copyright © 2009 American Psychiatric Publishing. cm. Expert Testimony. 2. schedules. The psychiatrist as expert witness / Thomas G. p. [DNLM: 1.Note: The author has worked to ensure that all information in this book is accurate at the time of publication and consistent with general psychiatric and medical standards. Expert—United States. 1000 Wilson Boulevard Arlington. W740 G984pf 2009] KF8965. For these reasons and because human and mechanical errors sometimes occur. Inc. paper) 1. however.. II. . represent the views and opinions of the individual authors and do not necessarily represent the policies and opinions of APPI or the American Psychiatric Association. c1998. therapeutic standards may change. Companion to: The psychiatrist in court / Thomas G. Thomas G. Gutheil.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Gutheil. Inc. Psychiatrist in court. Gutheil. specific situations may require a specific therapeutic response not included in this book. Dr. ISBN 978-1-58562-342-6 (alk. Evidence. Title. Thomas G. Inc.S. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family.org Library of Congress Cataloging-in-Publication Data Gutheil. Includes bibliographical references and index.G8 2009 614′. and routes of administration is accurate at the time of publication and consistent with standards set by the U. American Psychiatric Publishing. Forensic psychiatry—United States. ALL RIGHTS RESERVED Manufactured in the United States of America on acid-free paper 12 11 10 09 08 5 4 3 2 1 Second Edition Typeset in Adobe’s Optima and Warnock Pro.appi. Forensic Psychiatry. I. and that information concerning drug dosages. 2. — 2nd ed.
To Shannon.To my children and the hope of the future. . truly the wind beneath my wings.
This page intentionally left blank .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . 8 The Humility Factor . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . . 4 Confidentiality Warnings . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . .Contents About the Author . . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . .
Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 The Expert on the Road: Some Travel Tips
for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
the textbook. Appelbaum.D. M. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. received the Manfred S... M. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. Through more than 250 publications and many lectures and seminars in national and international fora. Recipient of every major award in the forensic field.About the Author Thomas G. Clinical Handbook of Psychiatry and the Law. He is a past president of the American Academy of Psychiatry and Law and the current president of the International Academy of Law and Mental Health. Harvard Medical School. Gutheil. coauthored with Paul S.D. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. he has taught many clinicians about the interfaces between psychiatry and the law. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. and a Distinguished Life Fellow of the American Psychiatric Association. xi . he has received local and national writing and teaching awards. and now in its fourth edition.
This page intentionally left blank .
Forensic psychiatry is growing in popularity. xiii . which is aimed primarily at the treating psychiatrist who may end up in a courtroom. a number of basic points from that book are covered in early chapters of this second edition for readers who would benefit from such a review. Often the greatest difficulties in this profession occur at the outset. besides the requisite updating of references and suggested readings. if you feel shaky about the basics. that book is a good place to warm up.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. a model forensic consent form for examination. interspersed with frenzied bursts of action. and many a practitioner feels the urge to try out this fascinating realm. Moreover. The Psychiatrist in Court: A Survival Guide. this edition also contains things I wish I had said in the first edition. you might consider this book to be next in logical and chronological order to the companion volume in this series. and cases or principles that I have learned about since the first edition. expanded definitions of key concepts. in fact. As an aid to present readers. it provides tedious stretches of waiting and inactivity. In addition. before experience itself has had the opportunity to provide the most durable and valuable instruction. and at the request of past readers of the first edition. other changes in this second edition include: a glossary of useful terms. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. From another perspective. This book may provide guidance to you in that activity by drawing on decades of experience in the courtroom and countless beginner’s mistakes to help you avoid the same pitfalls. Such service presents many stresses and equally many satisfactions. This book—now presented in its revised and expanded second edition—is targeted to increasing the knowledge and skills of the beginning expert witness and of those contemplating this role for even the first time. additional illustrative examples. an expanded discussion of bias in testimony.
may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. and informal discussion in a user-friendly tone replaces scholarly discourse. The more seasoned expert may wish to skim over the more familiar material in the text. Gutheil.xiv THE PSYCHIATRIST AS EXPERT WITNESS. but choosing to go. Thomas G. in part because they represent material never covered in other sources. many an experienced expert has informally lamented to a group of peers how laborious was the early phase of practice when the absence of practical instruction required reinventing the wheel for each new challenge. you. This new updated edition. whenever possible. perhaps— dare I say it—interesting and even fun. hands-on mentoring and guidance that were not readily available in the past.D. SECOND EDITION If your early court experience has not been too traumatic. I hope you find this approach useful. for such readers. the novice court goer. concrete advice replaces abstract theorizing. M. Indeed. You who are in that position are also my audience. Best wishes for success in your burgeoning career as an expert witness. drawing on developments subsequent to its first version. the later chapters may yet prove useful. . attempts to provide some of that practical. kicking and screaming.
to Drs. Harold Bursztajn. M. for permission to use some of his material on writing for court.” James T. and Ms. xv . Resnick. Hilliard. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. Stephen Behnke. Harvard Medical School.. and Shannon Woolley for their careful review and most helpful critique and comments.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. Esq. Ellen Lewy for absolutely indispensable assistance with the manuscript. Candace Love of On-Point Research for valued assistance in compiling resources.. and to Ms. I especially thank “Dr.D. Larry Strasburger. Phillip J.
This page intentionally left blank .
More narrowly. the expert is distinguished from the ordinary or “fact” witness by an essential attribute: the fact witness is limited to testimony about what can be discerned by the five senses by direct observation or experience. Indeed. For example. to provide information and understanding relevant to the legal system’s concerns. in contrast the expert is entitled by the role to draw conclusions. is a psychiatrist who uses particular skills. the question “What makes an expert?” seems to answer itself: expertise makes the expert. the question of what makes an expert witness is more complex. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. even if those conclusions are based on others’ observations. In this book. the concept of a psychiatric expert witness. In the courtroom setting. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. both clinical and nonclinical. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. This essentially didactic functioning—more closely resembling teaching than anything else—often requires intellectually bridging the gap between two widely divergent realms of discourse and th ought: psychiatry and law. that is. knowing a lot about a certain topic and having extensive experience therein. clinically defined. an expert witness may review a chart filled with other clinicians’ observations 1 .CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE.
that is. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. I believe this person. For that matter.. What I find bemusing is the fact that. from ballistics to the temperature of coffee sold at fast-food franchises.I do not want someone who [merely] teaches others about it. competence. proclaiming their ultimate faith in the jurors themselves. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. opinionphrased descriptions rather than conclusory statements: “in my opinion. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts.” You want someone who will present in a way that the jurors would be inclined to say this. not the ultimate finding that a judge or jury decides. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. . and so on. it could be argued that this is the essential function of the jury system: a social mechanism to decide which side of a case is to be believed. then the judge or jury. or malingering. such as competence or insanity. at times. are the very same ones who had retained me on a previous case.. the jury is free to accept or reject the expert’s testimony in whole or in part. insanity. incompetent. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. because what an expert offers is “only” a witness’s opinion. I also want someone who has clinical experience and is doing that which he/she is testifying about. However. I’d want to be treated by this person because he/she makes sense. if I had this problem. Under this model. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent.” This issue is discussed further in later sections of this text. A leading plaintiffs’ attorney described his need for an expert in this way during a lecture: What I think you want the jury to feel when you have an expert in front of them is: “Gee. As a rule experts should limit themselves to criteria-driven. the expert is to educate the retaining attorney. Note in regard to the issue of ultimate findings. about matters that are beyond lay knowledge or decision making. Indeed. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians..2 THE PSYCHIATRIST AS EXPERT WITNESS. the court system needs expert witnesses in a burgeoning variety of technical fields. some questions can only be answered by a specialist.
The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. In this chapter. and an adversarial atmosphere are problems to be avoided. he noted that the plaintiff ’s attorney had failed in a crucial storytelling function to make the person who had committed suicide come alive in the minds of the jury so that they would be sensitive to what had been lost by his death. conflict between the parties. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. syndromes. Mozart begins to describe the opening scene of The Marriage of Figaro. and the one often most troubling to clinicians. Most clinical work occurs in the context of the alliance. . (2. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. The power of storytelling was captured in a movie about the career of Mozart. although basic. demographics. 4) help the fact finder see the facts. Despite his doubts. Showing pictures of the deceased at communion. eyes glowing with interest. The foremost of these. or resolved or otherwise put to therapeutic use. are so essential to this work that I review them in the following discussions. clinical entities. surmounted. the emperor is initially resistant to Mozart’s novel music. “Where are the communion pictures?” Pressed for a less cryptic expression. statistics. and 5) argue the case (1). at family functions. The highly experienced defense attorney who had retained me was heard to mutter at one point. The emperor leans forward. and throughout this book. is the adversarial context. however. In one scene. pp. causation. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. consider this scene: In the movie Amadeus. 3) make sense out of the law. some points. with Figaro kneeling on stage taking the measurements of his marriage bed.Introduction: What Makes an Expert? 3 Another scholar. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. 2) make the fact finder want you to win. went even further by listing the functions of the expert as being to 1) tell the story. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. he has become engrossed in the story. and the resulting probabilities. and so forth would have accomplished this vital storytelling purpose. a law professor. oppositionality.
in a forensic setting.e. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. as well as the usual lack of a physicianpatient relationship (i. memoranda. Like other consultants. Com- . but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. you work for the consultee (i. I define the term work product to include the notes. The usual guiding principle in such determinations is “the best interests of the child.e. both of which reside in every case and every patient or litigant. the team is expected to reach some sort of consensus about the treatment so that it can move forward in a unified manner to the best possible solution. you usually work for the patient.. The question of whom you work for also will alert you to major pitfalls of bias. Unlike the search for consensus in the clinical setting.4 THE PSYCHIATRIST AS EXPERT WITNESS. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). one loser. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. even if it is a compromise (3). two of the victims of this concept are ambivalence and complexity. Although there may be as many views of the patient as there are team members. such as child custody evaluations. whether testifying or consulting. in the forensic setting. In other words. must first ask the question. ambivalences may be divided between the two parties in the case rather than felt internally by either. the retaining attorney or court). they are not case-related documents and therefore are protected from disclosure. This specialized topic is beyond the scope of this book. In medicolegal work. The Prime Question Any forensic psychiatrist.” a mandate that may trump other claims on your agency. You also will be sensitized to certain issues of privileged information and work product exclusion (a term clarified later in this discussion) that may come to bear. in the clinical context. the court situation is a zero-sum game: one winner. the adversarial context is one of the “givens” in the situation. files. because that position confers greater neutrality and protection for your efforts. you usually do not). Note for completeness that certain forensic contexts. and other papers that the attorney generates in the course of litigation.. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. for whom am I working? Your answer will clarify your location within the adversarial framework. render highly complex the question of agency. For example. In the legal context. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you.
Although therapy usually transpires within the patient’s self-reported data. The issue here is the tension. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. The term also suggests that an expert’s opinion rests on a base. my own or others’ interview notes. with some exceptions. correspondence. One trenchant reason for this approach is to obtain corroboration or discorroboration. suspects. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. court-related issues are often matters of public record and public exposure (in open court). Therefore. when in doubt. litigants. with exceptions. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. and parties of whatever stripe—that they are not to expect business as usual (meaning usual confidentiality) just because they are talking to a psychiatrist. and relevant literature.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. later addressed. fantasy. In contrast. including records. your personal attorney can always give you advice on nondiscoverable matters. the forensic perspective almost always extends beyond the individual examinee. it should. defendants. Warnings are further discussed in later sections about the interview itself. . convicts. Most attorneys know not to include details of their trial strategy in letters to you. is private and confidential. the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. lest they be exposed prematurely to the other side. be carefully documented. of course. between the “whole truth” and the “admissible truth” (4). The retaining attorney will guide you in this matter. As we will see later. Admissibility is a selection filter that poses conceptual problems for the novice expert accustomed to seeking all possible input for the care of the patient. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. or impression. reports. or basis. and captured as well in the consent form for forensic examination as Appendix 1. legal documents. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy.
In practical terms the expert witness. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. detailed. hearsay-ridden trail by which it comes to the team’s attention.. one is guided by its rules. be it moral or monetary. and often redundant way of developing information for the court and the fact finder can lead novice experts to chafe at its slowness and deliberation. though under oath to tell the whole truth. prejudice. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. do not demand to be heard: answer all the questions and then stand down when dismissed. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. as reported by the mother to the social work intern and then passed on to the social worker who shares it with the team—may constitute valuable clinical data. experts in court must play by court rules. and to maintain an appropriately skeptical posture. may be forced into limitations on this promise because of countervailing considerations of precedent. obvious self-contradiction. and the like (4). SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. Once again.. the forensic practitioner is wise to suspect everyone of having some stake in the matter. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. hearsay. always seeking out verification. and similar signs. which preclude admission of certain kinds of data or evidence in the name of justice. — George Santayana Unlike the treatment context. In contrast. fundamental fairness. The witness should be guided by the maxim: when entering the courtroom.6 THE PSYCHIATRIST AS EXPERT WITNESS. corroboration. or discorroboration . Because a patient in treatment is willingly coming for help. despite the convoluted. absent clear delusions. but the Socratic method is one of the mainstays of courtroom procedure. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. Yet the court may be driven by principles of fairness. The Socratic Method Although expert testimony has been compared to teaching. This painstaking.
Reasonable Medical Certainty Doubt is not a very pleasant condition. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. All psychiatrists. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. and leads physicians of all specialties observing. Although some will cry that there are exceptions. reasonable medical probability. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work.Introduction: What Makes an Expert? 7 for all important facts. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. As a general rule. or even reasonable psychological certainty). This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). makes forensic psychiatrists unpopular with their clinical colleagues. we are paid by time criteria. sell time. ask about the local variant. but certainty is absurd. including forensic psychiatrists. For most of us. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. Note that there may be some jurisdictional variation on this point. high-profile insanity cases. — Voltaire The investigative efforts previously implied permit the expert to offer testimony at the requisite standard of proof called reasonable medical certainty (sometimes described as reasonable psychiatric certainty.g. Other contextual clues about the hired gun are overly candid advertising in legal media (e. honest experts should avoid these approaches to . Rather. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. it most often means that the expert is sworn to testify about opinions that are true “more likely than not” or that are 51% certain. forensic work is a sideline to our clinical focus.. regardless of its clinical or empirical validity. for example.
(By the way. summarized as follows (for more extensive discussion of this point.8 THE PSYCHIATRIST AS EXPERT WITNESS. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings.) Treater Versus Expert Should a patient-litigant’s treater ever serve as an expert witness? Although there are no inherent problems with serving as a fact witness and reporting on your observations of the patient. because these provide a base of financial stability that enables you to turn down cases. and you maintain your ethical compass direction. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. Often no absolute standard exists by which to measure opinion testimony. First. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. A valuable development in this area has been the introduction of peer review for testimony as a voluntary educational aid provided by the American Academy of Psychiatry and the Law (AAPL). Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. although the clinician is obligated to place the welfare of the patient above other considerations. there are significant clinical. For various reasons (5–7). and corroborating data. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. case materials. legal. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. see reference 5 and the appendix to reference 3). SECOND EDITION finding work. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. reasoning. Thus. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. it is an excellent way to benefit from the teaching of colleagues and to share ideas. you avoid temptation to skew your opinion. and ethical incompatibilities with serving as your patient’s expert. If a clearly meritless case is offered to you for review.” in this volume). the prime directive of the legal system is telling the truth regardless of whether it favors the welfare of the patient or severely damages it. There are complexities in this area that should be addressed. “Developing and Marketing a Forensic Practice.
whether because of simple ignorance of the above distinctions. a treater begins work with a patient from a credulous position: the patient’s subjective view is the initial perspective agreed on and explored in the dyad. From this viewpoint. thus leaving the jury free to vote its “gut. it is often the case that the outcome of the legal matter has been predetermined entirely by the demographics involved in selection of the jury before the trial even starts. constitutes a bias for forensic functioning. Early in my career. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. in contrast. Master forensic psychiatrist Robert Simon. The Humility Factor Finally.D. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. Indeed. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. M.” Although this last is true in certain respects. Some attorneys report that their only use of experts is to neutralize or cancel out the testimony (or even the mere presence) of the experts on the other side. as noted in the section on malingering above. treaters called into court may violate the confidentiality of the clinical setting. . rather than the entire forensic database. the treater has usually had only the patient’s reports on which to rely.” This provocative image should be kept solidly in mind.” Even when the expert is the only source of data that the jury receives. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. even though this may occur appropriately under legal rules. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). Third. Attorneys seem to display a curious indifference to these incompatibilities. Second.. the therapeutic alliance. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. not the engine. though essential for therapy. the expert goes in skeptical. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. the wish to avoid paying expert fees that are usually higher than those of treaters.Introduction: What Makes an Expert? 9 the treater gives in court.
Williams & Wilkins (Wolters Kluwer). Lewis Publishers. Suggested Readings Ackerman MJ. 1997 Gutheil TG. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 8. Depositions. 6.gmc-uk. 4. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Expert’s Quarterly (Winter): 2. 3.asp. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Gutheil TG. Lippincott. 2008. SECOND EDITION References 1.10 THE PSYCHIATRIST AS EXPERT WITNESS. 2002 Bronstein DA: Law for the Expert Witness. August 2. 2007 Barsky AE. New York. 7. Gould JW: Clinicians in Court: A Guide to Subpoenas. British Medical Journal 337 (#7664). White MS. Harv Rev Psychiatry1:4–5. 2008 . Baltimore. Am J Psychiatry 154:448–456. 5. MD. Available at: http://www. FL. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Guilford Press. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Testifying and Everything Else You Need to Know. J Am Acad Psychiatry Law 33:55–58. J Am Acad Psychiatry Law 25:233–247. Lippincott. Hauser MJ. MD. 1992 Appelbaum PS. Kane AW: Psychological Experts in Divorce. 1998 Gutheil TG. 4th Edition. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. J Am Acad Psychiatry Law 34:14–21. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. New York. Williams & Wilkins. 2005 2. Boca Raton. Simon RI: Narcissistic dimensions of expert witness practice. “the admissible truth”: an ethics dilemma for expert witnesses. American Psychiatric Press. 2003 Strasburger LH. Washington. Wiley. Bull Am Acad Psychiatry Law 20:153–162. 2006 Catto G: Acting as an expert witness. 1997 Gutheil TG.org/guidance/ethical_ guidance/expert_witness_guidance. et al: The “whole truth” vs. Personal Injury and Other Civil Actions. Baltimore. DC. Accessed August 5. J Am Acad Psychiatry Law 31:422–427.
Edited by Quen JM. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. J Am Acad Psychiatry Law 30:10–13. 1994. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. Analytic Press. Int J Law Psychiatry 13:281–307. Gold LH: Textbook of Forensic Psychiatry. Hillsdale. 2001 Simon RI. Bull Am Acad Psychiatry Law 2:119–132. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. American Psychiatric Press. 2005 Simon RI: Psychiatry and Law for Clinicians. 1992 Dietz PE: The forensic psychiatrist of the future. 1989 . Bull Am Acad Psychiatry Law 15:217–227. 1990 Gutheil TG. Washington. American Psychiatric Press. 2001 Quen JM: The psychiatrist as expert witness. 3rd Edition. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. in The Psychiatrist in the Courtroom. pp 233–248 Rogers R. NJ. DC.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. Washington. Behavioral Sciences and the Law 7:145–180. Springer Science+Business Media. DC. Psychiatric Services 52:1526–1527. 2004 Slovenko R: On the therapist serving as a witness. New York.
This page intentionally left blank .
and its results may harm. rather than help. S-3) THE EXPERT faces many challenges in forensic work. the ethical expert be13 . but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons.” They may forget that this encounter is not therapy.CHAPTER 2 The Expert’s Ethical Universe My first adventure in the witness chair convinced me that it was as unstable as a one-wheeled rickshaw on a downhill course...[Finally] I realized that each witness chair comes equipped with a stabilizer control.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. their ultimate goals in the legal process. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. It is a control easily within the reach of every witness—the lever marked “truth.” (1. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. To prevent such inadvertent abuse or exploitation of the examinee.. examinees being interviewed by a psychiatrist. particularly an empathically attuned one. In this chapter. tend to drift unconsciously into a “therapeutic mode. p. First. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.
Therefore. after reviewing. this case is over and has been turned down. and states. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1.. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. you decide you cannot support the retaining attorney’s position. either your threshold for validity is too high or you need to meet a better class of attorneys. If you turn down most cases you get. understandably. indicates the intention of explaining your information to the client. this case might be called a defense case because the actions of the defendants are. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. In a not-so-ideal situation. You pass this information on to your retaining plaintiff’s attorney. who—in the ideal situation—accepts this view. your attorney still may use your opinion or report to bolster one aspect of the case or to limit the extravagant claims of the expert on the other side. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. Rather. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. the turndown rate is the percentage of cases in which. The warnings (carefully documented. denounces your integrity. and slams down the telephone.14 THE PSYCHIATRIST AS EXPERT WITNESS. thanks you for your help. If you take every case you review. This term does not refer to those cases for which you simply do not have sufficient time or those for which there is some conflict (e. indeed. scoffs at your qualifications. Turndown rates between 10% and 30% are not uncommon. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure.) For example. For symmetry. (Note that even if you cannot support all of the claims proffered in the case. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. you are friends with one of the defendants). defensible. impugns your ancestors. if necessary. it is also valuable to scrutinize the flip side of this issue: How often do you give the retaining attorney exactly what he or she wants? Does this alert you to possible sources of bias? . that the firm will not be using you as an expert. the attorney curses your name. you must consider whether your threshold for case validity may be too low. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. After settling up any monetary adjustments.g.
Consequently. In forensic practice. and so on. that is. Consequently. for example. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. you could receive a number of good cases. only over those you elect to accept. that position is always acceptable. The third model and the one probably in most common use might be called advocacy for your opinion (rather than.” Once under oath. Partisan pressures from the adversary are put aside. “What color is that house over there?” The novice answers. for a particular case outcome). The second model holds that accepting the reality of the adversarial system is simply part of being an expert because that is the arena in which you work. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. An author described the special sensitivity to what one can swear to in this way: You are asked. “White on this side. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. it is worthwhile keeping mental or written track of the number of cases you turn down and the percentage of the total as a kind of ethical filter. This model has been called the honest advocate model. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. all of which you should turn down. speculate about.The Expert’s Ethical Universe 15 Note also that you may be in a position to refer cases to colleagues who are known to you as having perspectives different from your own on.” Your correct answer would be. and 2) you answer cross-examination truthfully (see the following discussion). Although these referrals are not strictly turndowns. they do represent cases in which you have elected not to participate. One model holds that once the oath is taken. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold.” . or a number of invalid or meritless cases. guess. “White. Nevertheless. and the expert becomes the fully neutral observer and reporter. all of which you might accept. the only touchstone is absolute truth as you know it or understand it. This model is sometimes called the advocate for truth model. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. inpatient care. say. you take nothing for granted.
just what does the expert owe the retaining attorney? Strictly speaking. settle or drop the case. and admire him or her. A pitfall in this area might be called forensic countertransference. or make whatever use of your opinion that may be of service. might extensive socializing with the retaining attorney—or. you may come to like. If the attorney. is misreading the nature of the ethical contract between the two parties. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. committed quality work. respect.g. This difference is significant. The attorney is free to find another expert. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. that is not your problem. Recall that the attorney’s goals are winning the case. but two dimensions of the relationship pose potential ethical problems.” in this volume).16 THE PSYCHIATRIST AS EXPERT WITNESS. Extending this idea. under the rubric of loyalty.. thus. yours are providing ethical and valid consultation or testimony or both. this factor would require greater scrutiny of the relationship by the forensic witness. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. this identification may compromise your needed objectivity. is disappointed that your present opinion is unfavorable. You do owe it to your attorney to level with him or her about yourself (e. similarly. discussed further in Chapter 3. The worst betrayal of the attorney-expert contract is the shock and surprise that an attorney feels when your testimony in deposition or on the stand takes a turn totally out of synchrony with your previous disclosures and discussions with the attorney. the skeletons in your closet. . but the likelihood of identification bias would surely seem to be greater. identification with your retaining attorney (discussed more extensively in ). and what you can and cannot testify to under oath. you owe only serious. I suggest you also owe rigorous candor to your retaining attorney about what you can and cannot say and what the weaknesses in your own opinion are. out of feelings of being loyal to his or her retaining attorney. you do not owe agreement with the attorney’s position or theory of the case. First. The varying forms of bias are discussed below. that is. being retained by an attorney with whom you have had an extensive previous social relationship—constitute a problem? The answer probably depends on the maturity of both parties. As you work closely with your attorney. with whom you have done many a previous case together. your opinion and its limitations. “First Principles.
as a clinician.The Expert’s Ethical Universe 17 Nonsexual Seduction and Other Forms of Bias One form of bias may be created by the retaining attorney in an attempt to influence the expert. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. An empirical study aimed at obtaining a sense of the prevalence of this and other attempts at influence revealed that 35% of the admittedly small sample had experienced such efforts “apparently aimed at obtaining a favorable opinion” (4. and may add blandishments such as dinners at expensive restaurants and the like. The . Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. bias can be exceedingly subtle. you should refer the case. many expert biases are not detected either by the adversary system or even by the experts themselves. This neutral position is highly desirable for that reason.” Note also that. of course. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. although not common in practice. Somewhat idealistically. such as overidentification with the judge or the “system. The situation does reveal some complexity. 337). you are expected to manage your countertransference toward the examinee or the examinee’s actions. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. If you are a victim of child molestation. an attorney. In this model the attorney lavishes praise on the expert. of course. this effort may be termed nonsexual seduction. promises many future retentions. if the countertransference is unmanageable. Slovenko (5) has suggested: The adversary system of calling witnesses for each side and then examining them by direct and cross examination has evolved specifically for the purpose of exposing shortcomings and biases and probing the accuracy and veracity of opposing witnesses’ testimony. The challenge for the expert is to distinguish such reasonable and appropriate events from venal attempts at swaying the expert into a favorable opinion in the instant case. eliminate other subtler biasing factors. for instance. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. (p. 33) However. p. Similarly. The fact that the position is more or less neutral does not. There is no shame in this. you may feel unable to examine objectively a child molester. Note for completeness that the partisan effect of loyalty to the attorney is significantly bypassed when you serve as a court-appointed expert or examiner.
The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. the opposing attorney exerts the push of attempted impeachment. having become inappropriately enamored of their opinions rather than of the truth. Such candor may well enhance their credibility. loyalty. and their testimony is often unconvincing. expert testimony is like that. experts can be separated into two categories. both pull and push must be resisted. The less admirable experts.The Expert’s Ethical Universe 19 TABLE 2–1. Gutheil and Simon (6). p. and the limits of your testimony. In the process of cross-examination. Treater bias Money Entrepreneur SOURCES OF POTENTIAL BIAS Internal sources of potential bias Narcissistic Competitive Transferential “Love me” Gender Research Writing Personal Professional belief Religious/moral Advocacy Traumatic experience External sources of potential bias Attorney pressures Political Extra-forensic relationships “Limelight” Hindsight Confirmatory Source. while servants beat him with knotted towels. . yes. A scene from an old movie revealed an ordeal in which a prisoner had to walk balancing on a thick hawser with threatening swords on both sides.” Your retaining attorney exerts the pull of retention. the true extent of their opinions. Therefore. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. the limits of your knowledge. defend those opinions passionately and fiercely on cross-examination. if appropriately asked by the other side. 261. and identification as above. none of this information should be a surprise to your retaining attorney. the limits of your credentials. Finally. and the hypothetical situations under which their conclusions would be different. the limits of your conclusions. Again. the limits of your data. likely be explored.
36. 1992 . Williams & Wilkins. WI. 5. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 4th Edition. SECOND EDITION References 1. 2007 Gutheil TG. Martinez R: Forensic Ethics and the Expert Witness. December 2004. 7. 2001 Slovenko R: Discrediting the expert witness on account of bias. Psychiatric Annals 34:260–270. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Commons ML. 1992 Lynett E. Baltimore. 8. Prof Psychol Prac Res 33:307–309. New York. J Psychiatry Law 28:449–457. Baker TO: Operator’s Manual for a Witness Chair. 2002 Candilis PJ. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Milwaukee. objectivity and fair compensation. J Am Acad Psychiatry Law 36:195–200. 2002 Gutheil TG. J Am Acad Psychiatry Law 27:546–553. pp 33. 38. 2004 4. 2001 Miller RD: Professional vs personal ethics: methods for system reform. J Am Acad Psychiatry Law 29:336–339. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 2. Psychiatric Times. 3. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. Bull Am Acad Psychiatry Law 20:141–152. American Psychiatric Publishing. 1999 Commons ML. 1983 Appelbaum PS.20 THE PSYCHIATRIST AS EXPERT WITNESS. Washington. Int J Law Psychiatry 13:249–259. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. Defense Research Institute. Springer Science & Business Media. 39 Gutheil TG. Miller PM. Bull Am Acad Psychiatry Law 20:163–177. 6. Weinstock R. DC. MD. 1990 Brodsky SL. Simon RI: Avoiding bias in expert testimony. J Am Acad Psychiatry Law 32:70–75. Gutheil TG: Expert witness perceptions of bias in experts. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. 2008 Katz J: The fallacy of the impartial expert. 2004 Gutheil TG. Miller PM: Withholding.
2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. the adversarial system and the voice of reason: reconciling impartiality and advocacy. 2005 Rogers R: Ethical dilemmas in forensic evaluations. Leong GG. 1993 Shuman DW. J Am Acad Psychiatry Law 33:386–389.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. J Am Acad Psychiatry Law 36:167–174. Bull Am Acad Psychiatry Law 19:237–248. 1989 Weinstock R. Behavioral Sciences and the Law 5:149–160. Prof Psychol Res Prac 34:219–224. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. Greenberg SA: The expert witness. Bull Am Acad Psychiatry Law 17:189–202. Hosp Community Psychiatry 44:388–389. 1991 . 1987 Schultz-Ross RA: Ethics and the expert witness. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey.
This page intentionally left blank .
you may—indeed. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. or perform some other such intervention with him or her. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. but you are not required to preview your findings.CHAPTER 3 First Principles IN CLINICAL WORK. indirectly. you should—be polite and supportive to your examinee. share a copy of your report with the examinee. that person is the recipient of your opinions. Although you are usually working for an attorney. make recommendations. 23 . your employer is less clear. discussed in the previous chapter and later in this chapter. and compromised working relationship. prescribe. the patient is your employer. That relationship is also a source of certain pitfalls of bias. or some kind of class action). for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. When you examine a plaintiff at a defense attorney’s request. In the forensic relationship. treat. as when a defendant. forensic work should thus always begin with the question. you may or may not owe a separate form of allegiance to that attorney’s client. regardless of what is going on with other experts or treaters. is being treated in a hospital setting. Your duty is to the person for whom you are working. that attorney’s client. that is usually clear. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. However. considered for examination of competence to stand trial. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. you still work only for your retaining attorney and. ineffectual testimony.
and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. The Retaining Attorney’s Request After the first forensic question. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. Friendly. refer to those sources. which—either by accident or. How you communicate with your attorney is important from the outset. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. clinical experience. This point came up in an actual cross-examination in a distant state.24 THE PSYCHIATRIST AS EXPERT WITNESS. for whom am I working. more likely. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . Smith until he or she invites you to call him or her John or Jane. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. In this chapter. The Psychiatrist in Court: A Survival Guide. on purpose—he chose to characterize as “mine. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. Watch for this ploy. Instead. the term your attorney will be used to refer to the attorney retaining you as an expert. politeness dictates that you call the attorney Mr. If this issue is in question. I was asked. informal discussion should be the format.” implying venality and bias. not your personal counsel. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. this approach is self-defeating. or Ms. and mastery of professional jargon. though this distinction may be intentionally obscured as a cross-examination tactic. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. This telephone call is far from a mere administrative formality. “Have you discussed this with your attorney?” This threw me. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. It became clear that the cross-examiner meant my retaining attorney. the topic is extensively discussed in the companion volume.
Your Fitness as an Expert Should you. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. and so on. what is the psychiatric aspect of this case? A certain percentage of cases will turn out to be ones in which your role is presumed to be that of human lie detector. but I am willing to become familiar with the issue”). I recommend hearing about the broad issues of the case first and only then asking for people’s names. but the attorney wishes to retain you anyway because of a recommendation from a peer or because of the high regard in which you are held by local physicians. that is. the attorney will not have revealed confidential information (the names) to you. I don’t know a great deal about this specific subject. The attorney can then take or leave this arrangement. personally. as indicated by publication.First Principles 25 chiatrist actually has some knowledge about. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. yet you will have screened for bias before the attorney has taken you too deeply into trial strategy issues that should be kept privileged and private.g. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. For example. if you cannot or should not take the case. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. Note that your special expertise should exist against a backdrop of your general competence in the field. such cases should be reality-tested for the attorney. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. if your aged mother has just died in a nursing home. board certification. The Question of Initial Bias The last chapter should raise the question: Is there an element of bias pro or con? Do you know the players. Therefore. This example is fairly obvious. which is usually (but not always) clear-cut. In general. “Look. no matter how unfounded? Do you have a . have you been the defendant in a malpractice suit. but subtler versions of personal resonance with a case are not uncommon. however baseless? Are you now being investigated by the board of registration for some allegation. the hospital. The Expert’s History as Possible Problem Area Are there any blots on your reputation? Your attorney is entitled to know whether any circumstances could prove embarrassing if brought up by the other side in court.. experience. These issues go beyond mere conflict of interest.
As is often the case. . Similarly. the court record chidingly notes. including the speaker. credentialing problems in the past. are there cases in which you have testified on behalf of the other side.26 THE PSYCHIATRIST AS EXPERT WITNESS. Are things you have written a problem for this particular case? Attorneys hate being surprised by the fact that an article you wrote 15 years earlier. Belatedly surprising your attorney (e. in an economic sense. juvenile offenses. If you write a lot. the judge elects to be blind to the legal opportunism paraded before him daily—attorneys have been known to look for an occasional monetary incentive in bringing particular cases forward—and instead focuses on the experts. This issue is further discussed later in this chapter. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. . and similar problems? You must be extremely candid with the lawyers about such facts at the outset. . for instance. they are all corrupt). the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. . contradicts your present position. (1) This quote is interesting from several viewpoints. even if the issues are clinically or forensically totally different.” when everyone. have taken an opposite position or opinion. knows that it was Smith’s lawyer who was derelict. a criminal record (no matter how minor). not for their time and clinical expertise.. unfortunately. the ultimate beneficiaries. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. Time. Fees. Do your best to address this possibility early. for the first time while on the witness stand) is a major expert sin. you realize that the more you write. in the preceding quote. Thus. and Other Embarrassments A judge in a recent case had this to say about experts: It has been the experience and observation of this court that in all the medical malpractice trials over which it has presided.. Second. Vast amounts of past deposition and trial testimony are now stored in online databases and thus are available to any attorney who searches for it. who are the strangers in the courtroom. the more words you might have to eat on cross-examination. “Smith failed to plead . for example. SECOND EDITION history of problems in the military.g.e. attorneys are invisible within the court record.. Finally. Reviewing your own published work in a particular area is a worthwhile part of your preparation. . are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. or have been retained by one side more than the other? Review this with the attorney.In too many medical malpractice cases.
First Principles 27 not the forensic context. Second. I know. meaning no offense. this is a pro bono case for you?”). First. ideally delivered in a calm tone of voice and not through clenched teeth. this usually means that the client has hesitation or resistance about my rates.” Yes. and hires me anyway. choose a fee that you would not be embarrassed to state. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered.” or “I am paid by the hour. but you are made of finer stuff. Therapists who are quite capable of taking an extensive. allowing me to refer to a junior colleague. analyzing. nit pick. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. Note also that time spent thinking. I tactfully suggest that. Indeed. Use timers or check your watch at the start and end of a piece of work and write down the time. planning. Like the judge previously quoted. grits his or her teeth. Doctor. since the doctor-patient relationship is not pertinent to the examiner-examinee one.” Other witnesses may take this further: “My testimony is not for sale. these conversations usually convey to me that the caller may not be able to afford me—there is no shame in that—and that I am certainly willing to recommend someone younger and cheaper. and try to maintain that rate. is “I am not being paid for my testimony. only for my time. attorneys have timers on all their phones and charge by the split second. Don’t charge for a 90-second telephone call confirming the date of . charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. The attorney either takes me up on this offer. or challenge the details. “So. I also recommend not “nickel and diming.” or “Nothing” (and wait for the attorney to crack. Doctor?” The only appropriate answer. or grasps the point. whether for psychotherapy or expert witness time. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. without children bursting in to share their Nintendo triumphs with you). Check with your peers at similar levels of training and experience to determine what is customary for your area and be ready to say as much. and organizing your forensic assessment is part of the work. same as you.
but in my experience. don’t take on the case. basically consultative services. you will discover that every subordinate clause in each new version will be poured out in blood from your previous failure to anticipate duplicity by some attorney. You sell only time. among others. and give the dates to the attorney. are free to employ contingent fees. You give only testimony. Urge your attorney to bring up your fees on direct examination to get it out of the way. It should. of course. Ethically speaking. you can calmly state them without guilt. I took my first major “stiffer” to court eventually and received some of my money. Owen Marshall.e. If you don’t have enough time. defaulted on payment) by their first attorney. for instance. I reported him to the Massachusetts Board of Bar Overseers. the organization in charge of attorneys’ ethical issues. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. it comes as a surprise that it is not an ethical violation for an attorney to stiff his or her expert for a legitimate fee if there is nothing in writing (and in some cases. That august body opined that this was not an ethical problem but a business issue or a contract issue. respectively. even if there is). shame. you are charging for time regardless of the outcome of the case. How much work or time should you devote to the case? This depends on your schedule. Then.A. your fee should never be contingent. or other conflict. ideally.28 THE PSYCHIATRIST AS EXPERT WITNESS. in addition. SECOND EDITION a deposition. but your consultation must be free of investment in any form in the outcome of the case. To novice experts. failure to pay is reality. they referred me to small claims court. or for reading a one-paragraph letter. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. the good folks on L. Bitter experience teaches that it is critically important to have a standard fee agreement or contract signed by the attorney (or insurer) and to operate by retainer or payment in advance. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. The attorneys. when you design your own fee agreement. Refuse any other arrangement. at the end of this book. some of which never . Perry Mason. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. Keep your vacations in mind. when asked about your fees on the stand. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”).. it is unfair to your attorney.
As a rule. The Final Decision Putting together everything that you now know—what you charge. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. what your skills or knowledge support. You might advise the attorney on how to cross-examine the other side’s experts or litigants. your first task might be an evaluation of plaintiff. rarely. someone who has to generate a written report. You may be needed to evaluate a plaintiff (or a defendant. going to testify. at some point. working for the attorney or insurer is a far better idea than working for the client alone. Among other things. You may provide rebuttal material for use by others. The usual next step begins with your receipt of written materials on the case. Moreover. Which comes first boils down to a matter of individual preference.First Principles 29 lead to the courtroom. how you feel about the attorney. If you are. Will you be expected to testify at trial. your attorney. testator. that is. that role would be ethically incompatible with the objective testifying role. is more accountable. should you take the case or should you turn it down? The above sequence of queries is part of a negotiating process between you and the attorney or the law firm or even. defendant. . often in orange-crate–sized lots. or is the matter likely not to go to trial? Are you going to be a reporter. an individual client. what your time permits. as a professional. which the attorney decides to forgo because it might have to be supplied to the other side? All these considerations affect not only your clear sense of role but also practical matters such as your time allotment and scheduling. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. for that matter). nontreatment role is clearer. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. or will your opinion be used by the attorney to strategize without a report. Do one or the other. or even witness. your consultative. In other cases. You simply may be a consultant to the attorney on the merits of the case at the outset. is a tentative trial date known? How do your vacations fit in? This information allows you to allot more time and spread your cases so that you are not testifying on consecutive days for different cases—the expert’s nightmare. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. how free from bias or conflict the situation is—finally ask.
others prefer to review records first as a means of shaping their interview focus later (further discussion of this issue occurs later in this chapter). attorneys would call you only for ironclad solid cases in which they have every confidence. However. for that matter. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. even in a consultative sense? In the initial telephone call. I recommend listening for indexes of venality. his dangerousness was the crucial issue. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. does the attorney have merit? As a rule. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. of course. Scheduling considerations may determine the first task. In reality. the emotional pressure of the attorney’s desperation should not alter your objectivity. the next task is clear. In any case. you may be the ninth expert the attorney has consulted.30 THE PSYCHIATRIST AS EXPERT WITNESS. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. a tendency to assume you will give the “desired” opinion no matter what the material shows. though you would not necessarily know this. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. Regrettably. followed by review of the documentation. compared with some other behavior. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. The point is perhaps an obvious one. the minority are the ones who pose the problems. the attorney may be employing you in a desperate attempt to clutch at some faint hope. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. including by obtaining expert consultation. a behavior that certainly did not seem all that threatening. On perusing . There is nothing inherently wrong with this desperation. in relation to which. you must ask the question. The attorney presented the case to me by telephone. or a tendency to want to withhold information. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. stating that the patient’s dangerousness flowed from his being charged with slashing tires. does the side retaining you have a valid case (or even a case valid in at least some aspects on which decisions about litigation or settlement could be made)? Note that in an ideal world. For example.
but I emphasized that he and I needed to be clear about the fact that I would testify . Expert witness work is hard enough without bad faith. (Note also in this example the value of the previous record. Obviously. however. Somewhat annoyed. You cannot afford to embark on a course of work with someone such as this particular attorney. faced with this disappointing fact. for instance. the wording in which your opinion is couched and the substantive alteration of your opinion. then you have to expect the same in the future. a document often difficult to unearth but essential to the full evaluation. For example.” He wondered if that could be equally well expressed by “areas of competence. the malignant category. and the result may be your withdrawal from the case.) The second red-flag situation occurs when. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. I telephoned the attorney and demanded to know why he had withheld this history. will argue with you at this point. In the second. Underlying this issue is a more fundamental challenge for the expert: how far to go in negotiating with the attorney as to the limits of your opinion. therefore. In the first. The attorney’s response was pathognomonic: “Why do you guys always have to go for the history? Why can’t you just take the person as he stands there and assess him as he is right then?” I elected to turn the case down. If he or she withholds or distorts information or lies to you initially. and the arguments fall into two categories. based on your review of the database. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. the benign category. Some attorneys.First Principles 31 the old record. will acknowledge that they agree or felt the same as you did but needed to use expert input to satisfy their own mandates or those of the client or the insurer. based on the patient’s history of significant violence. such pressure should be resisted. arguments are the attorney’s attempt to browbeat you into changing your mind. you give your conclusions. Most ethical attorneys. Another less knowledgeable group of attorneys will be educated by your discussion. wants to be certain you took note of a particular record entry or deposition statement. I told the attorney that she possessed “islands of competence. the attorney wants to be sure you understand the import of certain data. however. after you have given your verbal report. A delicate balance must be struck between reasonable flexibility about.” After mulling this over. in a competence assessment of an elderly woman. which happen to be unfavorable to the retaining attorney’s case. I decided those were near-enough equivalents. the only safe course is not to work with that attorney. or wants to call your attention to some information that has not been included in the original materials (such as a private investigator’s report that the attorney does not want to send you to preserve its privilege).
rather than Volume I. an opposing attorney asked me on the stand when I had received various parts of the database. The attorney made a big show of my “concealing” this information. I had prepared a 22-page single-spaced report. . and I accepted. shape or form whatsoever. hung up. It is important to ask for everything from the attorney. finally. this rationale is especially ill-founded. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. Although delighted with this level of detail. He asked me to use the dates of the depositions I had reviewed. and so on. The attorney asked for major cuts or deletions. in a high-profile. Your request should be global. In a variant on this issue.32 THE PSYCHIATRIST AS EXPERT WITNESS. tactfully. This suggestion was acceptable. and testify to if asked. in any way. in fact. wanted. I told him. that since I had read it and thought it relevant. the retaining attorney. under the specious rationale that this method would permit seeing the evolution of my opinion. and did not stop until I said. Agreement was struck. In yet another case. after discussion I accepted that. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. multimillion-dollar will contest. his senior partner wanted to deemphasize the subject by changing some wording. only the final opinion really matters. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. regardless of what may be precluded by rules of evidence and discovery. inclusion of somewhat negative evidence would show objectivity. This is the final opinion I am giving here and now. Volume II. even if some material is irrelevant and other parts are inadmissible. This was trivial. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. I said I would change nothing. and so on. In another case. I could not ethically omit it. I did not recall because I do not keep that kind of record.” The attorney moved on to other matters. in an extended phone call. the remainder of the opinion. The attorney said he was offended that I should even think he was suggesting omitting something. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. The negotiating discussion moved into argument. however. to “go over” my report. One attorney nearly drove me mad by releasing dribs and drabs of material. and withdrew from the case. “withholding” important data from the jury. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. moreover. Since only the final (or courtroom) opinion is determinative. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep.
even data of dubious validity. As you read the complaint. This ethical dilemma arises when the attorney says.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. I think this guy is probably not insane. check the documents you receive against the cover letter to be sure you have everything you should. Referral to another or an additional expert also may be indicated. if you will. because I’ve got nothing.” It is perfectly appropriate for the attorney (who is obligated zealously to defend the client) to request your aid as long as he or she levels with you about the facts. However. Recall that a plaintiff can claim anything at first. First. Second. feel free to use it if it suits your own preferences. you should consider some important points. a critical question is whether the fact that the attorney admits to having nothing will mobilize inappropriate sympathy on your part and bias you in terms of trying to find something—anything—in the case. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. each element of which may be confirmed or disconfirmed by other material in the database. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. In general. “Look. facts. directed not toward the patient or examinee but toward the attorney. and connections that can be checked against the primary record data and flag those in some way. but you have to make your own ethical decision about the circumstances under which you as a forensic expert should take on a case in such an “I’ve got nothing” scenario. He was photographed doing the crime. but I’d like you to do this evaluation on him anyway. you are creating a checklist. I have found that attorneys for some reason often fail to send the exhibits to depositions. As you go through the documents. for example. a situation sometimes occurs that requires special mention. long pages of deposition testimony drone on about the exhibit. it is up to you. you would expect the attorney to accept the limited contribution you may make (if indeed it is limited) and not to attempt to persuade you to amplify or distort your conclusions. Forensic countertransference is further discussed in reference 2. My own approach is as follows. I find it helpful first to read the complaint so that you know what the basic issues are. after your report. but you can only imagine it because the actual document has not been provided. . Either undertaking or turning down such a case is a defensible position. This problem is a variant of a countertransference issue. look critically for claims.
. third. I strongly recommend reading large chunks of material at a single sitting. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. or with only the complaint reviewed. A laptop computer for this task may be quite helpful. no matter how difficult the scheduling might be. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. for example. This approach is the best way to have the whole case in memory so that you can catch contradictions between different sections of the database. makes it harder to focus on hot spots of the case or areas of contradiction in the database. SECOND EDITION Second. and next to check the depositions (to observe how people retrospectively reported the facts under oath and explained their rationale) or other documents (such as witness reports to review what others observed). the testator. accept it as a limitation. The Interview After reading the materials. cold. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. you also may want to review relevant literature on the subject. I read the medical records and clinical material or the equivalent. Some discretion.. perhaps by a paralegal. the defendant.34 THE PSYCHIATRIST AS EXPERT WITNESS. your interview queries would thus arise directly out of the material. exert every effort through your attorney to obtain enough time to do an adequate examination. advance screening. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. Given the complexity of many psychiatric malpractice cases. insanity in a criminal context). and selection of a safe environment may be required for examining potentially dangerous examinees. At this point. you may also request that the attorney’s office create the timeline. If the appropriate amount of time for your examination cannot be obtained. and be prepared to acknowledge this constraint as a limitation on the data. you will want to interview the plaintiff. the witness.g. Note for completeness that some experts like to start by examining the litigant first. however. or whoever is involved in the case (presumably. including your own. then to check the record to determine whether the complaint or issue has any validity. Such an examinee-first approach. This permits. The attorneys on either side of the case may limit the interview time available. if you have not already done so. the depositions or witness reports. you are familiar with basic interview approaches). It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up.
For a number of circumstances. unobtrusive note taking probably represents the optimum compromise among choices. as a rule. Verbatim material also can be obtained in this way. it might be effective and appropriate to examine him or her first. in one case. Note that when you are retained by the defense and wish to examine the plaintiff. the plaintiff ’s attorney on cross-examination asked whether it was not true that my opinion was reached without “the benefit of my examining the plaintiff. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. 2. for some experts. that side’s attorney may refuse to allow you to do so. to have the interview audiotaped or videotaped. more authentic) responses to your inquiries.” was appropriately disconcerting. then to examine him or her again to clear up matters raised by the written material. The fundamental reasons are as follows: 1. it is certainly beneficial for teaching and for self-review for quality assurance. Examinees commonly play up to the audience or recording device. an audiotape or videotape of an interview may be constructive. The occasional plaintiff ’s attorney will openly state that he or she never allows an IME (independent medical examination by an expert) of the client-plaintiff. the absence of this datum must be factored into the opinion. exaggerating symptoms. the expert will receive a request to have an attorney or paralegal present during the interview or. and suggestions from the attorney present may contaminate the process. however. Jurisdictional rules may make one or all of these procedures mandatory. but I strongly recommend opposing their occurrence through your attorney. cuing. “You wouldn’t let me!.First Principles 35 If the witness lives locally. Examinees who must travel to see you should. This decision is legitimate but bears consequences. based on the belief that such an examination can only hurt the case. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. Not uncommonly. although this irritates some examinees more than writing during the interview. For example. Inappropriate interruptions and objections.” My immediate response. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. be spared this burden. when examining for the opposite side of a case. If you are unable to prevent the above intrusions. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . 3. inhibit free-ranging inquiry. focusing on making a recording. presumably. However. then to read the database. alternatively.
March. in the unpublished 1996 case of Lailhengue v. and so on? . 322) To offer a structure for this stage of the inquiry. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. but wanted them to know that it would not help their case if it came out that they went to the gym to play basketball before they went to the emergency room after their auto accident. If the attorney attempts in any way to cue or coach the examinee. The following are four of the principles that I apply as a generic framework for this purpose.. . p. a psychiatrist interviewed plaintiffs with an attorney present.. be it civil or criminal. 1997) at the University of Michigan Law School reports that some attorneys consider it part of attorneyclient privilege to instruct the client to deny that the coaching ever took place...Attorney Larry Cohen (personal communication. as when the complaint boils down to. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. and I want to sue him. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. is whether the case is fundamentally plausible. Plausibility The first question to ask of the case.g. “I wasn’t myself when I plotted that elaborate armed robbery”? Internal Consistency Does the subject on the side retaining you present a coherent story.. warn once. Mobil. but the following vignettes make the point clearly: For example. a mass tort in Louisiana. (4. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. Do the deviations from standard of care sound hokey.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. the parts of which do not refute one another? Did the subject tell the same story to different observers at different times or a varied story? What benign factors might account for this discrepancy? What might this finding imply about possible fabrication..36 THE PSYCHIATRIST AS EXPERT WITNESS. distortion.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. behind the examinee). This subject is addressed extensively elsewhere (3).
The notion of the alternative scenario can be essential for assessing civil claims. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. about the historic English crime. he had made several outgoing calls during the time period of the alleged molestation. however. such as sexual misconduct. observations. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. or for some criminal claims of insanity. She had apparently established these referents by calling the office and receiving no answer. 1978). The phone records aided in challenging the claim by providing a time stamp. the following dialogue occurs between the trial judge and Edward Pierce. or the alleged damages? For example. Alternative Scenario In the film The Great Train Robbery (Crichton M. or statements of others? Was either the plaintiff or the defendant out of town on a reasonable alibi at a critical point when negligence was claimed? For example. whereas the arresting officers and other disinterested witnesses describe a calm and rational person just after the crime? Do other parts of the total database present corroboration or discorroboration of the claims. she assumed the doctor was not present and could not refute her claim. the outcome. in a sexual misconduct claim later proven groundless. remember not to offer any treatment or treatment recommendations to your examinee. If the situation did not occur in the manner claimed. how might it have occurred alternatively? Is there another way of explaining what happened. MGM/UA. as well as disability evaluations and similar tasks. is the disability due to an actual mental disorder or an avoidance of work for defensive reasons? Is the examinee attempting some sort of retaliation against the defendant for some perceived offense or slight other than that which is claimed? Given the perpetual problem of malingering and baseless claims that are part of the backdrop of every forensic assessment.First Principles 37 “Alibi” Issues or External Consistency Is there material from somewhere else that challenges or refutes the claim? Does the defendant claim to have been totally psychotic and out of control. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. Finally. even if asked to do so or tempted by medical ne- .
And finally. in a deposition. defendant. Note the fully intentional structural resemblance of the above paragraph to informed consent. or in an open courtroom. Only when I subsequently read her deposition did her entire . please sit down” but before anything substantive has been said: Before we start. I am entitled to make note of that. Third. the court). and you must keep several issues in mind. or have no visible effect on your case—only time will tell. my testimony may help your case. you will interview the subject (plaintiff. does the content resonate with the affect or is there discontinuity or incongruity? Does the story told in the interview match the remainder of the database? For perspective. what you say may come out in a report.38 THE PSYCHIATRIST AS EXPERT WITNESS. and others) as part of your exhaustive review of the database. Her emotions were strong and appropriate to the content. Is the patient convincing and plausible? Do the words match the music. such as informing the examinee which side has retained you. in both civil and criminal cases. SECOND EDITION cessity as treatment issues emerge in the interview. you are attending to his or her demeanor and its relation to credibility. Fitting Together the Interview Commonly. as noted early in this text. I have been retained by (your side. Second. seem to be called for out of fundamental fairness to your examinee. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. answer them as best you can. possibly with reporters present. unlike what you may be familiar with from other doctors or therapists. the other side of the case. but since I can only be useful if I am objective. you do not have to answer any of my questions. she had plausible answers for all my questions. The relationship is not a medical one. restroom) at any time. and treatment offers are inappropriate. what we talk about here is not confidential because I am not your treater. and if you do not. you can ask for a break (water. there are some things I need to inform you about. You will be challenged to weave interview data into the totality of the case. Other warnings. hurt your case. First. compare the consent form in Appendix 1. Do you have any questions about what I have told you so far? If the person has questions. recall that anyone can really be fooled. move on to the substance of your interview. if not. although I hope you will do so. that is. As you are interviewing the examinee. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality.
Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. For example.” In the civil system. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. but then Dr. Similarly problematic is the matter of intervening causes: “Dr. the preexisting condition must be deducted from the damages.e. it only means that you’re being conned into thinking that you’re not being conned. but those efforts may fail or be misdirected and may even make things worse. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. Smith did X at this point. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. One of the most challenging tasks for the expert is to evaluate serial traumas: to peel apart the sequence of events to determine what the results . or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. particular plaintiff vulnerability for which the defendant must be held responsible. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. the case was highly instructive: interviewees can be extremely convincing. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. especially when they themselves. on the other hand. The plaintiff ’s failure to take those remedial steps does count against him or her. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness.First Principles 39 case fall apart.. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. because of their psychopathology. believe deeply in their position. The Causation or Connection Dilemma In many forensic cases. Jones did Y and the plaintiff did Z. because the defendant is not causally responsible for what happened earlier. but did that deviation cause the damages. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. Besides serving as a valuable lesson in humility. Such distinctions are extremely significant in the hard monetary realities of the legal case. a defendant may be mentally ill. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue.
2. Or. and then has other symptoms or more of the same symptoms. References 1. Kirby v Ahmad. mistrial claims.40 THE PSYCHIATRIST AS EXPERT WITNESS. Further research may reveal other promising approaches (6). American Psychiatric Publishing. . What portion (usually. Another good rule is to discard. work by Pittman and Orr (5) on differentiating serial trauma shows promise. all case materials except your reports. 63 Ohio Misc 2d 533 at 534. they may serve you to recall the case at a later point for research or publication purposes. then is sexually abused by a treater. or incident. with permission. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. Even if a case seems “over. 2003 3. 1994 Gutheil TG. In addition. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. event. although it has not yet gained broad enough acceptance to be generally admissible as evidence. J Am Acad Psychiatry Law 31:6–9. what amount and what percentage) of the damages can be assigned to the later trauma which is the occasion for the suit? To take this issue out of the guessing-game arena. and so forth that require revisiting the materials. SECOND EDITION were of a particular deviation. what the results were of subsequent events. keep the latter indefinitely. if any. because they would be hard to replace. or 2) return the materials to the retaining agency. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. DC. and your interview notes. and what the exacerbations were of preexisting conditions. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. Washington. two major approaches apply: 1) shred or have a reputable company shred the paperwork. If you are discarding case materials.” there may be subsequent posttrial motions. appeals. 2002 Gutheil TG: Reflections on coaching by attorneys. Keeping Records How long should you keep forensic records? A basic rule is that you should never discard case materials until you have asked the retaining attorney if you can do so.
Bull Am Acad Psychiatry Law 21:37–52. New York. Guilford Press. J Psychiatry Law 24:3–25. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. et al: Response bias in plaintiffs’ histories. Families and Physicians Can Cope With Uncertainty. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. & Hall. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. 5. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. Lippincott. Edited by Rogers R. Assessment 4:321–324. 3rd Edition. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. New York. 4th Edition. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. 1997 Pittman RK. 1990 Suggested Readings Appelbaum PS. J Psychiatry Law 21:33–76. et al: Medical Choices. Brain Injury 11:791–799. 2005 . 41 6. New York.First Principles 4. Williams & Wilkins. 1993 Deaton JSD: Toward a critical forensic psychiatry. 2003 Group for the Advancement of Psychiatry. J Am Acad Psychiatry Law 31:232–238. 3rd Edition. Otto R. Guilford Press. Brunner/Mazel. New York. Baltimore. Feinbloom RI. Hamm RM. Williams CW. 1993 Bursztajn HJ. MD. 2007 Borum R. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 1991 Lees-Haley PR. Chapman. 2008. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Zasler ND. Routledge. in Clinical Assessment of Malingering and Deception. J Am Acad Psychiatry Law 33:158–175. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Medical Chances: How Patients.
This page intentionally left blank .
2) breach of duty. you already know the person is dead. Generally. Sometimes forgotten is the fore43 . this bias means that the outcome of an event appears as though it had been far more foreseeable. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. I provide several examples of cases—and some of the nuances unique to each type of case—that illustrate and clarify the spectrum of the expert’s work. In a suicide malpractice case. and 4) proximate cause. once you know it has already happened. The discussions within this chapter should be considered an introductory survey. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. in this chapter. 3) injury to the patient. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. than was actually so before the event in question occurred. More practically. for example (the most common claim against mental health professionals). Psychiatric Malpractice Cases One of the most critical issues in psychiatric malpractice is the failure to prove all four elements of malpractice (dereliction of a duty directly causing damages): 1) duty of care.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of
Types of Typical Cases
course, it is quite a different matter if the on-site treater’s conclusions are internally inconsistent with his or her own contemporaneous observations or are egregious distortions of the diagnostic or therapeutic process. But absent such extremes, great primacy should be awarded to subjective, nondocumented material that is observed and enters into the decision making by the on-site personnel at the relevant time. It is therefore important to suspend your judgment while reading a case until the whole has been reviewed. Each side can be surprisingly convincing when assessed in a vacuum (such as the complaint or interview alone) so that premature closure of your opinion is a great hazard of the trade. Resist this temptation, and flag those claims that need to be checked against other parts of the database.
The Standard of Care
The question of the standard of care is a complex but central issue in malpractice; it is the benchmark against which deviation (i.e., negligence) is measured. Unfortunately, the official standard of care or the wording in which it is couched may vary between jurisdictions. As an expert, you must, of course, familiarize yourself with the relevant local standard and its wording early in your work on the case and apply it to your review of the database. Massachusetts case law, for example, has a rather elaborate definition; the standard of care is that of “the average reasonable practitioner at that time and under the circumstances and taking into account the advances in the field.” By inference, this is a national standard, because advances in the field are professionwide, not regional. Other jurisdictions may have what is called a locality rule, which is a standard drawn from the practice of clinicians in that locality. For example, part of my qualification process in testifying in Durham, North Carolina, which has the locality rule, was to demonstrate the various ways in which I was aware of what clinicians do in Durham. In light of some recent American Psychiatric Association (APA) publications articulating diagnostic and treatment guidelines, how are these guidelines to be construed in relation to standards of care? The average guideline is not itself a standard; rather than describing average actual practice, the guideline often identifies what care ideally should be, that is, best practices. For example, if you write a textbook of psychiatry and law that proposes certain recommendations, those are not the standards of care. Those recommendations are called precatory or preaching; that is, they preach what the best care should be, rather than the required average reasonable care. Those recommendations do not pretend to be the standard of the average reasonable practitioner. All of these citations may be legally considered “evi-
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.
Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
There is something of a translation burden on you to read between the lines to determine the issues. for example. you read the depositions of witnesses. but depositions consist of attorneys’ questions to various parties. I have been impressed by how often the social service history supplies additional relevant data or gives a more detailed and comprehensive family history than does the psychiatric history. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. opposing experts. or it can be a highlighted entry. the expert may draw conclusions from the record alone. When reading the deposition. after the records. Next. I find it valuable to look at the social service history. of what this record entry contradicts or supports in the deposition. an underline. a post-it. of course).” However. . nor are the queries necessarily posed the way you would do so. the next time you read this document for deposition or trial may be 7 years away. you may be tempted to say to yourself. these may not necessarily be the questions you would want to ask. The intrinsic problem is that the deposition usually takes place long after the incident occurred and certainly after litigation has been initiated (a problem that potentially biases or distorts the issues. as a separate document. This notation can be on a separate sheet of paper of similar notes. To save yourself reading everything from scratch each time. or whatever. “This is so clear and memorable that I will naturally recall it later. you are seeking consistency and credibility. defendants. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. plaintiffs. any forensic document) without making some sort of notation of what is significant. and others. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. of your thoughts and reactions. you may have to pose your own questions to the parties.Types of Typical Cases 47 the tests ordered. make some sort of notation each time you read through the record. a marginal scribble. Because keeping a medical record is itself part of the standard of care. through your retaining lawyer’s permission and intercession. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. of any queries or signs of missing data that the record generates to be checked later or elsewhere. if present. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. On some occasions. The point may seem obvious. or a folded corner of the page. as different things may strike you on subsequent review. In the process of reading. It is useful to compare the perceptions of the social worker (who often has worked extensively with the family) with the perceptions of other staff.
it is inappropriate to call or write directly to the opposing attorney. statements of the arresting officers. The appropriate response is. I have had opposing attorneys telephone me directly on a “fishing expedition” to see what they could get me to disclose about a case without the trouble and expense of scheduling a deposition. These unethical conversations usually have an informal tone: “So. eh?” Presumably. SECOND EDITION Although the more information gathered. On occasion. the more helpful it would be in forming your opinion. your attorney’s confidential trial strategy. what do you think about this amazing case. weighing the logic of the deponent’s responses. The truly challenging case lies between these extremes. Is this defendant someone who seemed to show . Criminal Responsibility Cases In cases of criminal responsibility. remember to consider diminished capacity as an intermediate condition. Out of the entire panoply of available material on a criminal responsibility case. you may confront the classical poles of the issue. All communications beyond the most mechanistic (giving the opposing attorney’s secretary directions to your office for a deposition) should be channeled through your attorney. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. data gathered at the time of the alleged act. For example. namely. To read critically. in my (and almost everyone’s) view. are the most significant. Doctor. exert the effort to stand back from the process.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. Because of the flow of material and its often fascinating content. friendly approach into letting your guard down and discoursing freely on your opinions. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. you are lulled by this informal. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. litigant. and so on. or expert. a case wherein the defendant had or has a major. “I think you should talk to the retaining attorney. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. you can be drawn into the prose by the unfolding drama therein recorded. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. while reading a deposition.48 THE PSYCHIATRIST AS EXPERT WITNESS. These would include witness and victim reports. but still relevant. In those jurisdictions where the issue exists. is historical material. and records of any treating clinicians from points close in time to the alleged acts. Of second-rank importance.
Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case.Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. In one case. Finally. the cause of the crime. some on . All the interview data must be fitted to the totality of the database. The most valuable dimension of the interview is obtaining previously unrecorded history and the defendant’s own self-reported rationale for his or her actions and own description of the internal mental state at the time of the act. I find the interview for an emotional injury case to be of primary value. Because of the seriousness of criminal penalties. the result of the crime. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. The interview also gives you a chance to assess what might be called a sense of proportion. as with all forensic evaluations (6). Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. or did he or she have a long history of mental illness with recurring hospitalizations and delusional symptoms that relate directly to the alleged act? Recall that mental illness may bear a wide variety of relationships to crime: a factor in responsibility. This issue of proportion is a common pitfall for the novice plaintiff ’s expert.8). and so on. an unrelated accompaniment to the crime. The plaintiff who claims that his or her major posttraumatic stress disorder (PTSD) and all of his or her subsequent emotional problems were caused by a tiny plastic bottle of vodka striking him or her when falling out of an airplane’s overhead compartment might raise some issues of proportion. for example. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. malingering is especially common and problematic in this assessment. an injury from which he recovered rapidly without lasting effect. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. a surprising number of individuals avoid treatment. the interview in a criminal responsibility case has the least power of all the data collected. although mandatory and irreplaceable. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. The novice expert should become familiar with useful publications on the subject (7. a plaintiff drank from a chemically contaminated bottle and burned his mouth.
50 THE PSYCHIATRIST AS EXPERT WITNESS. He claimed to have full-fledged PTSD. For example. but you might discover on questioning the plaintiff that the extreme subsequent trauma and dysfunction flow from a history of sexual abuse or public exposure and humiliation. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. too. I had to interview him in his home because he claimed to be phobically homebound. preexisting vulnerability. The response “My attorney told me not to” conveys its own obvious message. an answer such as “What is the point? There is no hope for me!” is more problematic (perhaps flowing from a depression) and suggestive of a need for some intervention before the examinee undertakes mitigation. This history may represent the plaintiff ’s “thin skull” (i. Next to the small table where we were sitting. and startle responses. you again often encounter the previously described problem of factoring out the effects of serial trauma. A question you should ask your interviewee is. may be relevant. avoidance. especially idiosyncratic history..e. in regard to which the defendants must “take the plaintiffs as they find them”). Not only might these provide a context for the injuries claimed. “What would have to happen for you to go get treatment to mitigate your damage in this area?” A response such as “I would have to find a doctor I liked” is quite reasonable. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. These “critogenic” (“law-caused”) harms often cloud the picture of the claimant’s actual damages caused by the defendant(s) alone (9) and must be factored out. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. Such a search can be embarrassing and humiliating to anyone. In this situation. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. only to find that the goods are legitimately accompanied by a receipt. History. but they may also be relevant to assessing damages or preexisting conditions. I . consider the so-called strip search case in which store employees suspect the plaintiff of shoplifting goods and perform an embarrassing or inappropriately confrontational public search or semi-strip search. however. Finally. The shopper then may sue the store for harassment and consequent emotional harms. with intrusive flashback memories. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. as a result of the mugging. SECOND EDITION their own accord and some when given this advice by their attorneys. The interview took place in his basement recreation room.
This passenger. the jury ultimately decides. One of my cases raised this issue. He slept like a log. but at incredibly high levels. He was strapped into his seat. and did not dream. There is a fundamental asymmetry about media coverage in almost every case. the alleged malpractice. of course. On the surface of his story. On detailed examination. fellow passengers. I myself jumped in my chair. High-Profile Cases At one point or another. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. perhaps so. not totally probative. looking straight down past his toes. It is. had been in the front row of seats just behind the break in the plane. yet the observation is valid. you may be asked to review a case that has been extensively covered in the media before you have been retained. don’t assume—examine. the plaintiff or prosecutor can say anything. on careful inquiry. This case also illustrates the maxim. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. without warning. however. the case certainly seemed meritorious in theory. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. unimaginative. therefore. had no signs of trauma whatsoever. In a famous incident. stoic fisherman. As the “moving . The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. the nose of the plane fell into the harbor. An apartment dweller sued her landlord for failing to respond to the infestation. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. 51 This observation was potentially valuable and worth recording. who. dying. he saw a jagged metal edge and below that edge. it seemed to me that this incident would induce PTSD in a stone statue. which the average member of the public really doesn’t understand. A powerful factor in the assessment was a series of photos of the hordes of dead vermin lying about after the apartment in question had been gassed—a picture that was highly convincing.357 Magnum close to his ear. or crime has generated publicity first. the former passenger was revealed as a serious. then you get the case. it turned out. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. to get the actual data. Boston Harbor with freezing. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. usually not. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. injury. ate like a lumberjack.Types of Typical Cases knew this because. that is. and. he would have said calmly. He gave the impression on interview that if you fired off a . Initially.
in hopes that some of that public will later become jurors. “McDonald’s has an obvious duty to weld on the covers of coffee cups with Krazy Glue so that people can’t hold the cups in their laps. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. you simply may be reading your newspaper before you are asked to consult on a case. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. Ninety-nine percent of the time. Some attorneys may try. however. because they don’t want to give away trial strategy. By doing this. SECOND EDITION parties. a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue.” In another case. for example. Recognizing this blot on our collective escutcheon will prepare you to deal with or counter the actions of the hired gun in court or elsewhere (10).) Another stigma of the hired gun is the counsel of perfection. lest your review should begin with a one-sided perspective. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. In short.” in this volume provides more reliable methods of publicizing your practice. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. “Developing and Marketing a Forensic Practice. Even though you may try to tune out the media. The defense attorneys must say “no comment” each time.52 THE PSYCHIATRIST AS EXPERT WITNESS. selling testimony instead of time. pushing the case for all it is worth. the plaintiff and prosecutor inevitably bias the public’s perception. until it is proven in a court of law. rip off the covers in moving cars. but this principle may be readily overlooked in a media frenzy. Therefore. you have to be alert to this potential biasing factor and be aware of the media asymmetries. and spill hot coffee over their thighs and sue McDonald’s. A plaintiff can say to the media. of course. (Chapter 9. but so do a number—perhaps a greater number—of venal witnesses. In malpractice cases. consciously or unconsciously.” the attorneys have to create the case from scratch. None of this trumpeting means anything. to influence the public powerfully in advance. for example. the defense attorneys cannot answer the media’s questions. the standard references the average reasonable . Does advertising your services in Lawyers’ Weekly automatically make you a hired gun? This controversial question skirts perilously close to a matter of guilt by association. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. there is no case until it is brought.
the likely explanation is that the treaterexpert made it up to suit his views of this case. . Another variation on this theme is. Indeed. For example. Anyone always could have done more. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. whereby the hired gun whips a standard out of thin air to justify his or her position in the case.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. “If the care had been adequate. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. The hired gun often advances a perfectionistic standard as though it were the average.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. An even more malignant twist is the made-up or artificial standard. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). “They (the defendants) should have done more.” Many “good ideas” theoretically might have contributed to the patient’s care. but no one lives real life like that. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. The real issue is: does the standard of care require more. I personally have never heard of or read that standard anywhere.. Waffles are evasive. it’s a very serious situation. The following is a real-life sample: Examining attorney: Does the standard of care require restraint of this patient? Hired gun witness: When you have a patient who is this out of control and depressed. in the real world.. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. Some experts believe that physicians are never wrong and always justify whatever the physicians do. but malpractice litigation hinges on what is required by the standard of care. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker. the counter to such claims often begins with the phrase “Well.” This testimony is a classic hired gun claim.
he should have been [that is. Also note that the failure to consider a valid option indeed may constitute negligence. rather than ideally. Getting the feel for how the waffle works takes a certain amount of reading of case material. it seems nearly impossible to extract the actual opinion from the thicket of prose. took some blood pressure pills one time in [city]. Is that a yes or a no? In fact it is neither—it is a waffle. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. of unpredictability. It certainly should have been considered. . Here is another example of a waffle on standard of care: Question: So you think after his discharge from [X Hospital] in [month] of [year]. that this is a patient with some history of a. then committed suicide. actually. he gets frightened. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. but. goes all the way to [another city]. reasonably would have been. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. a reasonable history. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. The entire answer took four full deposition pages. an hour before that or less signs a 3-day statement and then just disappears. specifically. Note how that witness actually avoids responding. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. That was the answer in toto. an emergency petition ideally would have been. the mental state and what’s gone on in that patient’s mind is very uncertain. he has taken in despair 10 lithiums some years back. there is a lot of despair and a great deal of thought disorganization in the patient. we don’t know whether he stops or doesn’t stop and get [drug] or not.54 THE PSYCHIATRIST AS EXPERT WITNESS. I am not in a position to tell you that that would be the only choice. but that is the answer to a different question. and that is frequently the hallmark of the hired gun. a patient had escaped from the hospital. Note that this entire chunk of testimony is one run-on sentence. More to the point. and where I believe the standard of care was breached was that the patient. the standard of care required that he be] involuntarily admitted to a hospital before [month] of [year]? Answer: It is my opinion that one of the possibilities that should have been seriously considered would have been an involuntary hospitalization. reasonably should have been issued so that the patient could be brought back for reassessment in terms of their thinking and what possessed the patient to leave. In the following example.
whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. a trend of such waffling answers in deposition does set off my hired gun detector. Brodsky A. Baltimore. et al: Decision-Making in Psychiatry and Law. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. we may be dealing with an incompetence issue. References 1. Bursztajn H. and that includes they would be safe within or without the community. Conceivably. Washington. Gutheil TG. Science 211:453–458. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. Int J Law Psychiatry 6:331–350. note that one cannot. 2002. 1983 Bursztajn H. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. DC.Types of Typical Cases 55 The following is part of a response to a request to list deviations from the standard of care in a Tarasoff-type case: It’s a consequential piece of behavior that creates the most essential elements of a treatment plan. Gutheil TG. 3rd Edition. Int J Law Psychiatry 6:317–329. In fairness. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Kahneman D: The framing of decisions and the psychology of choice. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. J Exp Psychol 1:288–299. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. 7. New York. Yet. . Edited by Simon RI. 1991 Fischhoff B: Hindsight. I would prefer never to assume malice when incompetence would serve as an alternative scenario. Shuman DW. 3. American Psychiatric Press. 4. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. which makes sure the patient is safe within a structured environment. 1981 Gutheil TG. Guilford Press. I: malpractice prevention and the use of subjective data. 2. but that doesn’t mean that it’s without supervision. for better or for worse. we must consider another possibility regarding the above examples. with impunity. 6. MD. Williams & Wilkins. 1975 Tversky A. II: clinical uses of legal standards in the interpretation of subjective data. Finally. foresight: the effect of outcome knowledge on judgment under uncertainty. 2008 5. Bursztajn H.
DC. 2004 Knoll J. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. Washington. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. 2000 10.56 8. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Psychiatr Clin North Am 17:439–446. insanity. Psychiatric Services 50:767–773. American Psychiatric Press. THE PSYCHIATRIST AS EXPERT WITNESS. 1995 9. 1987 11. J Am Acad Psychiatry Law 34:215–223. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. DC. 2005 Simon RI. Washington. Legal Studies Forum 9:41–53. et al: Detection of malingering in competency to stand trial evaluations. Psychiatry 1:26–28. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. SECOND EDITION Gothard S. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. 1993 .” J Am Acad Psychiatry Law 35:112–117. Viglion DJ. 2nd Edition. Law and Human Behavior 19:493– 505. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. psychiatry and the law. 1992 Gutheil TG: A confusion of tongues: competence. Meloy JR. Gutheil TG: The problem of evasive testimony: the expert “waffle. Bull Am Acad Psychiatry Law 20:409–418. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. American Psychiatric Press. J Psychiatry Law 28:5–18. Bull Am Acad Psychiatry Law 21:23–36. 1999 Gutheil TG: Fundamentals of medical record documentation.
Attorneys probe and define the limits of their cases. Under some circumstances. use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. Note that some jurisdictions practice “trial by ambush” without expert discovery. there is the period known as discovery. if any. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say.CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. the attorney will likely write the actual prose of the 57 . preparing for what to expect from the various witnesses and documents. In both cases. From the viewpoint of the expert. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names.
However. you do not want to be associated with this attorney. .58 THE PSYCHIATRIST AS EXPERT WITNESS. hyperbole hurts you. The Psychiatrist in Court: A Survival Guide. that is an attorney’s function. based on his or her interpretation of the rules of evidence. your attorney will advise you as to what requests for information or documents will be objected to or refused. the expert. This approach saves you from having to retract misstatements on cross-examination. attorneys sometimes ask you for your tax returns of the last 5 years. read every such document before it is turned in. guided by your input as to what you expect to testify to at trial. and an opposing attorney may make a major issue out of any deviation between your trial testimony and what your interrogatory disclosure states that you will say. Do not attempt to decide what is or is not objectionable yourself. On occasion. or some combination of the three: getting your opinion. If you discover this to have occurred. The obvious prophylaxis and remedy is to attend carefully not only to the content of what your lawyer puts down as your expected testimony but also to the specific choice of words being used. For example. it is always unethical. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. obtaining admissions. and painting you into a corner. Depositions The second major area of discovery is the deposition. I advise you to withdraw from (or refuse to take) the case. SECOND EDITION answers for you. the interrogatory is sworn testimony. In addition. If you have never given a deposition or you feel a bit shaky about the procedure. either from clinical evidence or experience or from facts in the database. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). even worse. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). Opposing attorneys usually follow one of three agendas. reasoning that they can always modify their opinions at trial when the right questions are asked. review Chapter 5 in the companion volume to this book. It is critical that everything in your interrogatory be something that you have already decided you are able to support. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. without retaining you at all. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or.
In this latter context. and so on. Attorneys also stress that the deposition is their one chance to find out what you have to say. taken before the entire database has been acquired or reviewed by the experts. the police. This ploy usually can be defused by your attorney. the attorney is not averse to discovering precisely those points that will help his or her side of the case. This discovery function is a completely legitimate task and one with which you should cooperate fully. On the other hand. and so on. the defendant. The attorney can then prepare cross-examination. however. select rebuttal witnesses. and—as a result of reviewing the facts or statements in that new document—your opinion materially changes in some way (other than merely being strengthened). Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. you are ethically obligated to so inform your attorney. during the course of the deposition. but this is a subintention within the larger discovery framework. attempts to ambush the other side at trial by testimony previously omitted may subject you to abuse on cross-examination for your duplicity in not giving that opinion during deposition. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. and deadlines may dictate this suboptimal condition. scheduling problems. admissions and concessions of points or . a telephone conference. the plaintiff.Discovery and Depositions 59 Getting Your Opinion First. but not ideally. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. Just answer the question. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. for instance. or a full-fledged repeat deposition. depositions are occasionally. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. as the Anglo-Saxons phrased it. who is in turn obligated to inform the attorney on the other side of your new opinion. inform his or her experts about facts or issues to pay attention to. the attorney. This information may or may not trigger a supplemental step for you in the form of an interrogatory. if any. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. over and above what has been conveyed in reports or interrogatories. to empty your wordhoard. When you subsequently receive. Of course. time considerations. a witness’s deposition or medical record that you had not seen before your own deposition. as a way of ensuring that your opinions may be brought out at trial.
At trial. In a wrongful commitment case against the hospital. to kill coworkers. On arrival at the hospital.60 THE PSYCHIATRIST AS EXPERT WITNESS. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. however. The points may relate to guilt. even though it was the preadmission history. not the mental status by itself. When you later give testimony in court. conceptually. The answer was no. insanity. . Indeed.e. or damages—the entire gamut of forensic possibilities. under oath. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. negligence. SECOND EDITION views detrimental to the other (i. Accuracy addresses the clarity of your vision in relation to the known facts in the case. that justified the admission. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. many attorneys would view themselves as highly successful in this effort if they could only dilute the force of your opinion or obtain agreement with a point that is or even sounds close to a concession. although the history. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. For example. Truth. that is. what are we to believe. of course. much was made of this testimony. A patient was committed because of threats. raised many possibilities. This procedure elicits sworn testimony. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. based on paranoid-sounding content. is the final standard. His mental status was not particularly demonstrative of symptoms of mental illness.. and accuracy (3). your) side of the case. The most familiar variations include attempting to get you to generalize about psychiatry and ignore the differences among the schools of thought within the field. fairness. so that your opinion is constrained or limited in a way that decreases its impact. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. he denied to the admitting physician that he had any violent intent. Your Goals for the Deposition One scholar has described the witness’s goals as truth. any contradiction is obviously damaging to your credibility: “You swore this now and that then. of course. also under oath. competence. You are locked in to that testimony. Doctor? Were you lying then or are you lying now?” Your vigilance to being painted into a corner by the deposing attorney is justified by the fact that there are many subtle variations of this locked-in approach.
To do your job. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. More details about this necessity are discussed later in this chapter.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. focused. your opinions (and their limitations). if more time turns out to be required. A small number of attorneys attempt to wear down the expert by sheer passage of time. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. If you do not go home after a deposition feeling tired and drained. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. will spend hours inching through the expert’s credentials. you were probably not paying sufficiently close attention. Unfortunately. Occasionally. you must be rested. however. Get enough sleep the night before the deposition. Some attorneys will have such a primitive view of the essentials of the case that they will flail about over the entire field of psychiatry. alert. and vigilant at all times. Still others. looking for dirt before even addressing the instant case. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. this also takes a toll on the court reporter. The expert should clear a full day for the deposition to be on the safe side. another deposition date can be scheduled. aware of the serious weakness of the substantive aspects of their case. hoping to hit the key points if only by accident. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. and your planned testimony. intense concentration sustained over hours is hard work. several factors urge clearing substantial blocks of time for deposition. The Need for Concentration The concepts previously mentioned should make clear that a deposition is not a mere formality to be gotten out of the way and over with. try to eliminate distractions. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. it is an essential part of the evolution of a case and thus your role in it. as noted above. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. Prepare for this. Rather. .
A more effective answer might have been. you can give a useful compound answer to a compound question. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. to be an appropriate way of determining competence in the clinical situation. First.62 THE PSYCHIATRIST AS EXPERT WITNESS. they have to enter into a dialogue with their patient. Question (attorney for staff member): Knowing what we know today. his act could . but it is quite risky and may compromise clarity. ask that it be broken down. ask to hear it again or have it read back. Note. are you seriously telling this court that that sentence [quoted from an article] is one which instructs the forensic witness and the medical health [sic] treater that. “The patient gave no sign. this could be used to instruct both the forensic assessor and the treating clinician as to a means of determining the capacity to enter into informed consent. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. so you were negligent. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. so you were negligent. or evidence of a propensity for violence. On rare occasions. Second. it’s your testimony that on [date] you did have a clear understanding of [patient’s] propensity for violence [and therefore are negligent because you did nothing about it]? By imputing to the patient a hindsight-based propensity for the violence only now known to have occurred. can we agree that on [date of murder] you did not have a clear understanding of [patient’s] propensity for violence? [Questioner assumes there was a propensity in the patient—a hindsight view—hence. or you knew and didn’t act. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. it is serious. If the question is compound or complex. yes. let me answer all three components.] Answer (by case manager): I don’t think I would agree with that. Question: So. yes. If there is the slightest doubt. which I codirect. I don’t—I wouldn’t agree with you there. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. in the following example. no. I am serious. the case manager’s lack of understanding might be negligent. warning. And the third part of your question is. in order to determine competence. therefore.
Clinical data also can be cut into discrete segments to attempt to refute.Discovery and Depositions 63 neither be foreseen nor be prevented.” would be perfectly okay. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. any good nurse does that.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. It is unlikely. Obviously. challenge. Note that an excellent and self-contained answer to such a question or line of questions is. no. not what others have told you? [The attorney tightens that very screw. too discursive. or did you make that entry based on information given to you by others? [These are.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. which might be used against her nursing colleagues. In addition. of course. you write down what you have observed. the totality of symptoms did so). For example. social obnoxiousness in various ways. or weaken certain conclusions (4). the witness should decline to answer yes or no to such a question. right. I sure hope I saw him because I usually don’t write things unless they are true. not the individual element. 5 years and hundreds of patients later.] Answer: Gee.”] Question: Is that the procedure in which you make notes. paranoia. vulgarity. Question: Did you observe [patient] attending those meetings. the answer. did not constitute sufficient evidence of bipolar disorder (although.] Answer: Right. and too extensive an answer to deposition questions.] Yet another deposition tactic is what I call gerrymandering the data. and grandiosity. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. The following excerpt of testimony given by a naive fact witness. the patient manifested rapid press of speech. from a previous shift—is universal practice. in a vacuum. a patient with apparent bipolar disorder challenged an involuntary commitment. The deposing attorney inquired. of course. [This is not an answer to the question. When seen. reveals the hazards of too effusive. “In a vacuum. not the only possibilities. Her answer ignores the fact that the record does not always note the source of the clinical data. . moreover. But this witness has set a standard for herself: “hope for truth. making a chart entry based on what you were told by other staff —for example. testifying 5 years after a suicide. that the witness specifically remembers such a detail. Gee. [The witness sets her own standard of care. “I don’t recall.
nods. or you might infer something useful from the type of objection posed. “yes. Be careful about overlapping speech. Giving the stenographer your business card before the deposition is a highly useful courtesy. your attorney may be trying to call your attention to something. usually accidentally. insist on a time frame. in the belief that your pause means you have finished. and carefully for the stenographer. “Objection. The pause also allows other attorneys to object. immediately correct . the trap of double negatives in the questions. If any of these summary phrases do not trigger recognition. because the stenographer cannot record winks. instruct you not to answer. Recall that the written transcript is the durable version of the deposition. shrugs. not your glib response in the deposition room. clearly. If your concentration slips and you give an answer that you later believe was wrong or even misleading. a garbled record from too-fast speech wastes everyone’s time and money.” “no. Other useful basic tips include the following: 1. incomprehensible questions. Attorneys may sometimes interrupt your answer. Answers Deposition answers are drawn from a surprisingly shallow pool. in essence. and so on. drugs.” or a short narrative response that contains the question so that the response. terms. 2. but sometimes they do so deliberately to distract you or to break your concentration. Pausing allows you to replay the question in your head and to think about your answer. who cannot take down two simultaneous conversations and produce a clear record.” reflect a moment on why the time frame might be important in relation to that particular question.” “I don’t know. lack of time frame. cannot be quoted out of context. Some key points made in that volume are the hazards of guessing. and the like. whose written record will be the actual form of the deposition in all future contexts.” “I don’t recall. If your attorney says. They are. Correct any errors. each speaker should finish before the other begins. review the corresponding discussions in the companion volume.) Your answers must be verbal and aloud. shakes.64 THE PSYCHIATRIST AS EXPERT WITNESS. Overlapping dialogue is awkward or impossible for the reporter. SECOND EDITION The Pregnant Pause After the question is asked. in effect. Spell unusual names. Also remember to listen carefully to the objection. and the importance of speaking slowly. not only for the spelling of your name but for contact after the deposition for questions. pause a moment. The Psychiatrist in Court: A Survival Guide. Insist on finishing your answer to your satisfaction. Do not tolerate this interruption. Speak slower than usual. 3. (See also Chapter 5 in the companion volume. and other myoclonic responses.
To err is human. I tell a lie. Therefore. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. if you are concerned specifically about a matter of privilege that may govern your answer. (The question of coaching is more extensively addressed elsewhere [5. but I can’t say that any of them were [sic] precisely like this one.If I said that. Therefore. Two points about this problem should be kept in mind. these otherwise colorful colloquialisms must dismay the listener and raise questions about either the testimony or the seriousness with which it was delivered—both unfortunate concerns. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. . but leaving the error on the record means having to retract it on cross-examination. the doctor might answer: “Well.Discovery and Depositions 65 it on the record. No. I find that the most common error the beginning expert makes in a deposition is the failure to concede an obvious and irrefutable point out of misguided loyalty to his or her side of the case. exercise this option.. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. where you are retained by the defense. . the entire deposition takes place under oath and under penalty of perjury. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer.” Of course. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching.. First. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. the deposition may be paused for that consultation. this may be phrased as when to throw away the “throwaway” questions.6]. I’d be lying. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. However. .) When to Throw It Away In my consultative experience.To tell the truth. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. . the deposing attorney may ask. Therefore. When in doubt..” (3. pp. for example. because no two fractures are exactly alike. he could accurately answer in the negative. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. As a deponent witness. Second. would you agree that a patient’s sui- . “Doctor. . In a suicide malpractice case. .
and you answer it. Subjected to the silent treatment. The moral here. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. is “It ain’t over till it’s over. . throw it away. The attorney asks a question. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. by the way. now begins to fire rapidly at the witness. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. of course. When the answer is that clear. the novice witness relaxes and loses focus. Curious Questions The absence of a jury and of a judge to rule on the appropriateness of questions sometimes gives deposing attorneys the feeling of freedom to ask questions that might be disallowed by a judge or be seen as impertinent by a jury.66 THE PSYCHIATRIST AS EXPERT WITNESS. an attorney may look ostentatiously at his or her watch and say. Quibbling over the possible exceptions or equivocating in some way helps no one.” Wait to relax only after the stenographer has put away the machinery. make the concession. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. in the colorful argot of the national pastime. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. on the record. Occasionally. but the lack of the note did not cause the suicide. not unlike some patients in psychotherapy whose doorway pauses—“oh. Doctor. thinking about dinner and work to do later. but you know enough not to get involved in that “thing. influenced by the TV show Columbo. having inexplicably found his or her second wind. an attorney. “Just a few more questions. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. Your retaining attorney may also get into the act. With an encouraging smile the attorney looks expectantly at you without saying anything.” At that point.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. still. Remember that the failure to write something down may be below the standard of care. It is not the defendant’s negligence that is at stake in this situation but your credibility. and we’ll be done. may attempt to get some off-the-record insight literally in the doorway. wait until it gets ridiculous. have some water. check your watch. just one more thing”—contain vital material. and move on.
. isn’t it a greater hazard to you as a person doing those things—and isn’t it a fact your duty at that point as a psychiatrist arises [sic] to a higher level because of your knowledge of these conditions? Answer: You lost me. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. that we can’t isolate ourselves with notions of “I’m not part of our society.” in a manner to ignore those feelings. the subject matter.. as is “That is outside my area of expertise. but I’m in favor of sensitivity. For example. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can..” .Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. if you’re grossly suicidal and you have access to guns and drugs and alcohol. using categorization. No expert is expected to be an expert in everything or to remember everything. and answer that part. make sure you include the question in your answer on those occasions so that no one is misled. “I understand you to be asking me. This method sometimes involves carefully answering the question that the attorney should have asked. was the widow wrong to do what she did?” or “Was this defendant wrong to feel a desire for revenge?” or “Is that something a child might think?” (assuming you are not a child psychiatrist).and the answer to that question is . I find your question a little confusing.. rather than asking about. therefore. Some questions are curious because the attorney appears to be flailing at.. they often fail to realize that they do not have forensic evidence to back up those notions. Note how the first question was a total loss and had to be rejected completely.. “I don’t know” or “I don’t remember” is a fully appropriate answer.” Avoid the narcissistic trap of “I can answer anything. The only valid answer is that those questions are outside your area of expertise. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. Question: Isn’t it true that sensitivity to the humanness of our problem is one that needs to be dealt with in a medical field.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. and this response is perfectly appropriate.
“I can continue until midnight.68 THE PSYCHIATRIST AS EXPERT WITNESS. the parties are really the parties in the case. no matter how generic or basic it may seem. but your belief might interfere with your detection of negligence in this case. A situation that. This fight is an attorney-to-attorney matter. more technical. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. so I assumed that they knew what they were doing. In one deposition. When everyone is through. firm. clear. that is not your problem. unfailingly polite. threaten to go before the judge to plead their points. stay seated and keep quiet until it is over. That is as it should be. more pedantic. an attorney became so enraged that he stood up and threw his pen violently on the table so that bits of plastic flew into the faces of the other attorneys. mediate the debate. authentic or merely theatrical. If the admission note turns out to be a forgery. In the specific malpractice context. The only assumption you should make is good faith. Assumptions The deposing attorney may ask. should that become necessary. The two sides. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. . SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. the next question will be coming your way.” This position of timeless patience puts the onus appropriately on the attorney to move things along. and demonstrate other regressive behavior. more boring. and far less friendly and instructional than it would to a jury. As noted. “Well. occurs rarely may throw the novice witness: a roaring fight between attorneys. never losing your cool. Your attitude should convey. heretofore quiet and almost appearing bored by the proceedings. The only vital difference is the way in which you speak. and so on. fortunately. you will be addressing him or her in slow. after which the expert examines for evidence either way. Clinicians may be tempted to call on their clinical skills to temper violence. you will make it worse. stand up in their chairs. meaning that you assume that the documents are what they seem to be. or facilitate calm negotiation. “Did you make any assumptions about the case before you began?” You may be tempted to say.” This assumption is dangerous because it suggests bias. for example. Because the stenographer (and not the jury) is your audience. and you might well know some of them. careful speech that may be more formal. you assumed it was a medical record in good faith. Do not do anything. There are good hospitals out there.” as it were). clear. I know that’s a good hospital. scream at each other. this implies arranging coverage for your patients should a crisis occur.
Most modern books and articles have multiple authors or editors. then. Comparably. However. or article) is authoritative in the field or in the subject of the current case. but ask to be shown to which one the attorney is referring. Remember. the disclaimer at the front disavows its applicability in many forensic contexts. But both. Be sure to maintain a sense of proportion about these references and their utility. competent. Moreover. Novice experts.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. note whether you agree or disagree in general with the stated points. chapter. merely official. Alternatively. Some experts respond that the DSMs are not authoritative. both sources are “authoritative”: PDR contains the actual package insert information about drugs. yet the clinical diagnosis and treatment still may meet the standard of care. inescapably.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. In a criminal context. the parallel assumption would be “Sane. have their limits. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. For example. of course. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. these publications are not uniform in authoritativeness. may imitate the attorneys by overvaluing these texts and ignoring their limits. desperate for stable islands of consensus in the tossing seas of uncertainty. this is a matter of risk management for the pharmaceutical companies. After reading the entry carefully. Attorneys tend to use the latest editions of the Physicians’ Desk Reference (PDR) and Diagnostic and Statistical Manual of Mental Disorders (DSM) in a markedly concrete and reified manner. including those parts which conflict with your testimony. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage.” Learned Treatises In the course of a deposition. you cannot take the position that no text is authoritative. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. the examining attorney may ask you if a specific text (book. no one wrote a previously published book or article with the exact case in mind in which you are involved. and DSM gives the formal criteria for diagnoses. you may be asked to supply the names of authoritative texts yourself. to make an informal clinical diagnosis. In one limited sense. and innocent until proven otherwise.
Give both (or several) points of view if they exist. Arrange to do so with the attorney sufficiently early. Above all. police reports. Frankly admit if anything has been removed from your file. Obviously. especially if details remain unclear or if over time the clinical condition has changed or evolved. it is wise to review—and if necessary. this conversation is protected. consult your own attorney. record notes. check the accuracy of any numbers (9).. The Video Deposition A modern wrinkle on the procedure is the video deposition. outlines or summaries for quick reference) may be subject to subpoena for the deposition. well before the deposition. In addition. SECOND EDITION When quoting the literature. In some cases. Under some circumstances. In contrast. let the attorneys determine whether it is discoverable. laboratory values.70 THE PSYCHIATRIST AS EXPERT WITNESS. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. Many attorneys anticipate this problem and send only bland correspondence. in the video deposition. (8. be balanced and accurate. and you may have to furnish copies to opposing counsel. The usual audience of the standard deposition is the stenographer. the camera is . Meet with the attorney and review the issues. The latter may be privileged.A good rule to work by is that the statements you make in court should be of the same quality and reflect the same scholarship as if you were making them at a scientific seminar or publishing them in a reputable journal. you will need to review a wide array of information. If you are really unsure about something. or “cheat sheets” (i.e. review your files as diligently as if you were going to trial. actually visiting a site may be important.. remember to go to bed early. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. some discuss details of trial strategy in their letters to you.. and so on so that you can buttress all your conclusions with specific elements from the database. You must exercise some care in these discussions as they may be discoverable. whose transcript will endure and be used for any impeachment possible. Also. Any notes. rehearse—the details of the links between your conclusions and the facts.. you also may want to meet one more time with the attorney’s client before the deposition. but this is not your problem. statements. 571) Final Predeposition Preparations Before the actual deposition. Your attorney then can communicate with the retaining attorney. summaries. p.
Most court reporters are extremely good at their jobs. say. This approach risks eventually being papered out of house and home. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. juror-friendly. the expert may wish to retain a copy for teaching purposes after the case is over. . and the deponent signs under pains and penalties of perjury. careful. and must beware of inappropriate gestures and personal bodily attentions. My personal favorite is when the phrase. After the Deposition Always ask to read and sign the deposition. since allowing your eyes to follow the local movement will create a shifty-eyed look that some jurors may interpret as consistent with evasiveness or dishonesty.” and rendering. the video may also serve as the vehicle (in this case. or the deposing attorney for distribution to the parties. representing the jury. read it very carefully. trial-suited English. but under some circumstances the notarization can be waived. Remember to keep your language level. you should try to direct your gaze toward the camera lens. not at the ponderous. who may see the video displayed in addition to—or. “It’s an us-and-them situation” was rendered “It’s an S and M situation. Despite the fact that there may be movement of various sorts by others in the deposition room or studio.Discovery and Depositions 71 the audience. “irresponsible” as “responsible” are small changes with profound results. The video deposition presents a number of possible pitfalls. at times. and pedantic level of the ordinary deposition but in basic. of the word “not. When you receive the deposition transcript. As in the trial described in the next chapter. the retaining attorney. If the expert is known to be unavailable for the trial dates. jargon-free.” The errata sheet on which you note minor corrections (substantive testimony usually should not be changed without notification of your retaining attorney) is customarily signed and notarized. instead of—your personal appearance in court. you are under constant scrutiny. Recall that omission of a comma. checking for errors and typos. this time in a permanent record. If the deposition has been particularly instructive or noteworthy. the only vehicle) for the expert’s testimony. but errors can creep in. the deponent expert should always ask for a personal copy to review in preparation for trial. At least one copy of the transcript is returned either to the court reporter. In the current economy.
2001 Baker TO: Operator’s Manual for a Witness Chair. Suggested Readings Babitsky S. Baltimore. South Bend. 4. The Practical Lawyer 33:69– 78. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Mills MJ: Legal conceptualization. Willliams & Wilkins. legal fictions. National Institute for Trial Advocacy. 3. Current Psychiatry 7: 25–28. 2005 Suplee DR. Vols 1 and 2. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. 1999 Babitsky S. Bull Am Acad Psychiatry Law 10:17–27. 1993 Malone DM. 1996 2. Falmouth. Williams & Wilkins. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Defense Research Institute. 2007 Gutheil TG: Reflections on coaching by attorneys. IN. 1982 Gutheil TG. 1983 Gutheil TG. 7. SECOND EDITION References 1. 8. J Am Acad Psychiatry Law 29:313–318. MA. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. Gutheil TG. Simon RI. Falmouth.72 THE PSYCHIATRIST AS EXPERT WITNESS. Med Econ 82:45–48. 2008 Rice B: Malpractice: how to survive a deposition. Child Abuse Negl 17:571–572. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Milwaukee. Lippincott. J Am Acad Psychiatry Law 34:18–22. 6th Edition. SEAK. 6. J Am Acad Psychiatry Law 31:6–9. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. Defense Counsel Journal 4:174–179. 9. MA. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. SEAK. 2003 Kaplan HI. 5. WI. Simon RI. Baltimore. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. The Practical Lawyer 39:55–63. 1987 . MD. 36. 39–40. Woodruff MS: Deposing experts. MD. 2006 Gutheil TG. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial).
For the expert witness. settled. If you are testifying away from home. and they are the subject of this chapter. examining the companion volume. is recommended as an orientation. review that chapter. the same six Ps should be reviewed but with a slightly different emphasis. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. review Chapter 10 (“The Expert on the Road”) in this volume before setting out.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. The Psychiatrist in Court: A Survival Guide. Preparation. In this chapter. If you are uncertain about the guidelines for trial preparation. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. preparation means not only reviewing the entire database with great care but also thinking through the story you plan to tell by means of your direct testimony. trials do come around every so often. 2. and devising means of locating key passages in the database quickly. For experts who have spent little or no time in court. I addressed the six Ps of trial preparation. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. For the expert. I review some of the basic courtroom procedures. 1. 73 . pled out. Nevertheless. Planning.
Pretrial conference. some attorneys for the other side have been known to stall or drag out their questioning of you for the explicit purpose of rattling you with the need to make stay-over arrangements. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. 5. the relevant literature. Even more distressing. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. Most of these matters are best handled on direct examination where some measure of control can be exercised. Clarify and confirm your travel arrangements. and all such details. the unknown issues. It is not enough to know the database. Confirm travel arrangements and other details. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. what previous testimony has been given. . Review the weaknesses in your opinion. and what the emotional climate of the courtroom is. what the judge is like. 4. and the data relevant to the other side of the case. and your past experiences. the location of the trial. 6.74 THE PSYCHIATRIST AS EXPERT WITNESS. 7. you need to know through choice and practice how you will convey your opinion to the jury. The pretrial conference is probably one of the most important stages of preparation for trial. the floor of the courthouse on which the courtroom is located. You also need to hear how the trial is going. If you have a disability. Clarify in your own mind how you plan to deal with questions about your fees. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. You should rehearse ways of expressing information to the jury. parking arrangements. practice sketching any visual aids you will need for the courtroom blackboard. On cross-examination. Practice. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. Presentation. your publications (especially those relevant to this case). Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Consider taking a taxicab to local courts to avoid parking hassles. 3. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. Pitfalls. Insist on this conference if the attorney is equivocal or resistant to the idea. Define the limits of your testimony. and select useful examples from your experience to make central points. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). and the expected cross-examination. location of restrooms. Build in contingency plans for the possibility that the trial extends into the next day at least. the contradictory evidence.
but the essence is that the trial court judge is expected to screen challenged expert testimony on the basis of its relevance to the instant case. From the viewpoint of the expert. where the jury will be and what . and whether the testimony will fulfill the legally required expert function in the court. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. Wait in the public seats until actually called to the stand. Once in the courtroom. may occur prior to trial (occasionally. but if you are the only one standing. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). you will find it valuable to locate the restrooms and telephones. and to ensure that recognized approaches to the subject matter are chosen. experts are not allowed to be present in court for the testimony of any other witnesses. Before going into the courtroom. named for the plaintiff in an important U. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. When you are allowed to hear the testimony of other witnesses. to be able to articulate the bases and reasoning behind those conclusions. Some judges take offense if they find you perched cheerfully in the witness chair before they have entered and ready to testify before being given the go-ahead to the proceedings. particularly experts. The topic requires more extensive discussion (1). Such a hearing. sit down. the best approach is to exercise care about the methods used to reach conclusions. Practical Matters Preparing to Go On Many courts sequester witnesses.The Expert in Trial 75 The Daubert Challenge In an effort to ensure the validity of expert testimony and its underlying methodology and to prevent “junk science” (unsupported or idiosyncratic theory) from entering into the court’s deliberations. its methodologic reliability. rise for the judge’s entrance.e. Regrettably.. this kind of potentially valuable hearing and screening device can also be abused (2).S. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. Some scholars recommend coming in early or during a lunch break when the court is empty to sit in the witness chair before you actually go on. much valuable information can be gained and the tone of the room determined. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. which are sometimes in obscure locations in older courthouses. Supreme Court case. that is.
My own preference is to strip down what is brought. you may provide an opportunity for the cross-examiner to rummage through your files (although the effectiveness of this procedure is seriously undermined by the fact that it inevitably puts the jury to sleep and may alienate them). in an often extensive chart or deposition. to have on the witness stand the entire stack of documents pertinent to the case or whether they prefer to have nothing on the stand or almost nothing (e. Key documents might include my report and interview notes. SECOND EDITION the room looks like from the hot seat). yellow self-stick notes. the attorneys will have it). Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. even for experienced experts.76 THE PSYCHIATRIST AS EXPERT WITNESS. tabs. essential medical records . The downside is the need to remember a vast amount of detail and to recall where. as are all the substantiating data. Recall that in almost every case. dog-eared pages. having the whole database on the stand permits greater support of your testimony with specific data from the documents. if needed. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. 2) as noted. On the other hand. What to Bring Experts and their retaining attorneys vary in whether they prefer. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. only a copy of the expert report that is already in evidence or only a curriculum vitae). a particular citation is. The expert appears more confident and knowledgeable about the case.. because his or her opinion is being given from memory. and 3) you may become lost in excessive data. the opposing attorney cannot search through them for something with which to impeach your testimony. and ensures the accuracy of your recollection by direct verification. while the experts are testifying. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. The expert should determine which of these two approaches is more suitable. or your own table of contents devised for more extensive documents. When no documents are before you on the stand. Note that some anxiety is normal.g. Each preference has its pros and cons. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. Note again the importance of having and practicing a plan of organization.
A handy pen or pencil. For depositions of less central players in the case.. during breaks.The Expert in Trial 77 (pruned to relevant periods if needed). and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. the bored juror. and similar data. Finally. or carafe of water is an excellent idea. do not wear new clothes. testifying is thirst-provoking work. ornamentation. what you wear should fit well and be well broken in. affidavits. A cough drop or throat lozenge will moisten your mouth while placing less of a burden on your bladder but may create a speech impediment. What to Wear Experts tend to fall into two general categories: 1) those who try to look like lawyers and 2) those who try to look different. Demeanor Being on the stand is not unlike being filmed. I take to the stand a one-page table of contents (i. or if you must. Do not wear or carry your cellular telephone or beeper. Above all. Arrange appropriate coverage so that you do not have to worry about being reached. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. Arranging for a cup. This table of contents enables speedy reference to key facts. If you are completely uncertain about what to wear to court. the bailiff usually will keep it filled. your mode of dress should convey the fact that you are a professional in the courtroom on business. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. If I need the actual page or quote. eccentricity. glass. It is unclear whether either strategy is superior to the other. showing off how busy you are and how court is taking you away from really important matters. depositions. and cutting-edge high-drama fashion or excessive informality. and check in. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. perhaps comfort should rule. the defendant or . and you will not go wrong. Stick to the conservative business mien. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. I can use my table together with the attorney’s copy of the deposition. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. Avoid either ostentation. Indeed. highlighting marker.e. in the sense that you are usually under observation by someone—the bailiff. It is important to include material that supports the other side of the case so as not to produce (or seem to produce) a partisan trial database. if you must. ensure that they are turned off.
fluffy. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. attorney moves on to another subject]. Be clear. for example) as body language consistent with candor. and you want the jury to understand it. and sarcastic. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. humor may seem disrespectful. With discretion. Even when an attorney attacks you. A witness with an apparent chip on his or her shoulder (and in court. An expert who doesn’t seem to care about his or her own testimony has probably irreversibly lost the jury: why should they care if the expert doesn’t? Humor usually is a valuable teaching tool. Beware of “involuntary” gestures. Avoid personal body attentions (such as scratching) as much as possible. and stuffy. Such reactions may be misconstrued as disrespectful. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. flip.78 THE PSYCHIATRIST AS EXPERT WITNESS. get interested in what you have to say and stay interested. you are likely to be too involved and therefore possibly biased. or obtuse to the seriousness of the issue. you win the exchange. impugns you. you know or should know that it is not personal and has nothing to do with you. demeans you. not credible. If the attorney is hostile. such as rolling your eyes at the jury when a particularly fatuous question is asked. Without such alliance. If you become huffy or outright mad. Your identity on the stand is that of teacher. even when someone else is speaking. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. There is no reason for a teacher to get mad. however. Scholars recommend keeping the front of your body open (by not folding your arms. Attorney (with a slight sneer): Isn’t it true. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. sneering. humor directed against yourself may show that you do not take yourself too seriously. all such chips are apparent) is particularly unconvincing. and you are unfailingly polite. . or degrades you. Make your point because it matters. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. but of the jury or the entire process. not of the attorney in question. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. it is important. an attorney—at all times. obnoxiously facetious. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. as follows. Doctor. Doctor?”). SECOND EDITION plaintiff.
and “waffley. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. concede a remote possibility and move on. they are usually poorly received by juries. They are not excessively academic. Finally. . adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. Testimony Direct testimony should unfold in an organized manner. or prone to nit-picking. to agree that some things happen sometimes. as a result of your careful and thoughtful preparation with your attorney. and to admit that rules have exceptions. to concede a point that really doesn’t mean much. or waxing argumentative rather than instructive. the concept is sometimes rendered mathematically as a 51% certainty.The Expert in Trial 79 Being fluffy means being too abstract.” that is. to accept a possibility as such (almost anything is “possible. It is not the same as “certainty” (100% sure). Although you are a teacher. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). If no microphone is provided. In general. Because jurisdictions differ as to the precise definition. As occurs during the depositions noted in the previous chapter. avoid discussing unconscious dynamics unless absolutely needed for your point. theoretical. what fools these jargonists be). jargon laden. making roving eye contact with various jurors whenever possible. the trial is a human process.” but only a few things reach reasonable medical certainty). not stuffy. yet may ultimately give up on your testimony after straining to hear for too long. a juror who cannot hear may be hesitant about saying so in open court. not just a classroom exercise.. If in any doubt about your speech volume. Speak to the most distant juror to be sure your voice is audible. but without intimidating staring. evasive. the most common beginner’s error in the courtroom is the inability to “throw it away. or respond to jargon.e. If a microphone is available. pedantic. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. If you must use. explain. ask if you can be heard by the farthest ranks of jurors. Haggling with the attorney over a tiny abstruse point. even inhibited souls will nod if they can hear. Direct your extended remarks to the jury. good teachers are lively and interesting. project.” Make your point as concretely as necessary and back it up with hard data from the database. understandable manner that brings the details together in a recognizable gestalt. Keep in mind the expert’s role in telling the story in a coherent. blunts your argument and weakens your credibility.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Unlike formal, even pedantic deposition language, which is directed to the court reporter and aims at clarity above all to develop a valid transcript, trial language is juror-friendly, basic, and may be more extensive than the austere, brief answers from deposition. Asked an open-ended question (“Can you describe that process?”), answer until the matter is complete; if the jury appears to be losing focus, or if you see the dreaded “eye glaze” sign, wrap up your answer and wait for the next question. Remember that no matter how intensely you may feel about anything, you must scrupulously avoid any of the mildest forms of profanity or blasphemy, even as rhetorical devices. Recall that, in some parts of the country, and for some jurors, saying “Lord, no!” for emphasis in answer to a question involves breaking one of the Ten Commandments. There are various reasons for the expert to use a blackboard, marker board, or flip chart (for further discussion, see Chapter 6 in The Psychiatrist in Court: A Survival Guide). The expert should prepare some information that can be presented effectively by using one of these aids, if only to break the talking-heads monotony of witness after witness. Make sure you can be heard when using the blackboard, marker board, or flip chart because, if there is a microphone, you will now be away from it. Do not be ashamed to boom it out. Similarly, be sure to write large enough to be read by the farthest juror; ask the far ranks if they can see the first letter or picture you write or draw. If not, increase the scale. Novice experts may not be aware that the witness who faces the blackboard and mumbles the sound-track accompaniment to his micrographia is not only ineffective but also actively alienating, possibly even insulting, the jury. The companion volume makes the following point:
In addition, when you pick up a piece of chalk in your hand and you stand in front of the blackboard, you become, as a transference object, the most trusted figure in common human experience: the teacher. The teacher knows. The juror may not know what the capital of Virginia is—or what chlorpromazine is used for—but knows the teacher knows. The power of the image transcends what you actually draw; what counts is the apparent effort to get your point across, because juries respond to the idea that you are trying to help them understand. (3, p. 62)
When responding to cross-examination, maintain the identical level of interest, animation, politeness, and responsiveness as you demonstrated on direct examination (although you are allowed to become more alert). The expert who is warm, winning, and discursive on direct examination only to turn crabbed, argumentative, defensive, and guarded on cross-examination is communicating only bias. You are telling the truth; what difference does it make which side is asking the questions? The hostile, attacking attorney who
The Expert in Trial
meets with your unfailing politeness and persistent civility is perpetrating suicide, not homicide. If either side asks a genuinely excellent question, say so but only if you mean it. Answering cross-examination questions does not require that you help out the attorney with various possible misunderstandings he or she may have about psychiatry; just answer the question. The only exception to this rule is when so profound a misunderstanding of some fact is taking place that for you to answer the question would merely precipitate and perpetuate a French farce situation of two parties on totally different wavelengths; this situation is not funny in court. Clarify the point, then wait for the next question.
Some experts develop a code with their attorney to aid covering certain points brought out on cross-examination. For example, expert and attorney may agree that if the expert prefaces an answer on cross-examination with, “Well, that’s an interesting point...,” it means that the expert wishes to be asked about the issue on redirect. Such an arrangement may be considered, but in practice it may be more cumbersome and distracting than it is worth. In a personal communication (K. Lipez, November 1996), an experienced judge noted that his opinion of an expert falls if the expert has failed to anticipate, and seems unprepared for, an obvious line of questioning. For example, in a criminal trial with a proposed insanity defense, the question of malingering is highly relevant. An expert who seems surprised at this issue being brought out on cross-examination reveals serious lacunae in understanding the forensic issues involved. The same judge cautioned against too facile a psychiatric or psychological explanation of human behavior. The posture that everything can be explained (or even worse, “I can explain everything”) is unconvincing to juries and may even imply that the examinee has succeeded in manipulating the psychiatrist. Finally, I suggest giving up the fantasy of being able to predict entirely the effect of what you say on the jury: the jury will decide how the jury will decide. In a case in which a psychiatrist was being sued for malpractice in a patient’s suicide, I gave extensive defense testimony and remarked, strictly in passing, that, although it would not be ethical to give my own independent diagnosis—because I had not seen the patient—the diagnosis given by those who had seen the patient was fully consistent with the recorded symptoms. A poll of the jury after the defense verdict revealed that the jury had been impressed and perhaps even swayed by the fact that the only witnesses who used the word ethical were I and the physician-defendant.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine . In fact, given the actual frequency of sexual misconduct complaints by BPD patients against their therapists, patients with BPD are statistically more likely to be initiators of true claims than false ones.) Horrified at this evolving debacle and unable to stop it or even comment on it until the next break, I took refuge where all witnesses in such a spot should take it: the absolute narrow truth. The attorney might catch on or might not, might be baffled or might not, might be annoyed with you afterward or might not, but those are not your problems. The oath always provides sanctuary in a storm. A similar dilemma faces the testifying expert when some significant fact is revealed for the first time during trial testimony—a fact that changes your opinion. Do not panic and feel guilty, abashed, or inadequate. This revelation may be the lawyer’s lapse, but it is not your problem. Your job is to tell the truth; if the facts substantively change, an ethical expert’s opinion would be expected to change.
Remember to keep your testimony basic and jargon free. Illustrate your points with analogies and metaphors that you believe the average jury will follow. The following is an example of how you might discuss in court the mechanism of action of a selective serotonin reuptake inhibitor:
You know that the spark plugs on your car work by sending a spark across a narrow gap (show by using your fingers). Well, the nerves in your nervous system, including the nerves that control your mood, communicate in the same way (sketch a synapse). The upstream nerve sends an electrical current (draw a lightning bolt) down to this spark gap called a synapse (write word on board), and when it gets there, the current releases little blobs of chemicals like tiny water balloons. These float across the spark gap and hit certain “hot buttons” on the end of the downstream nerve and set off the next electrical current (draw another lightning bolt in the downstream nerve). Now that these chemicals are out there, how do you turn them off for the next bolt? The upstream nerve sucks them back up like a vacuum cleaner, and the system is ready for the next nerve impulse. Now this medication blocks
That is how this kind of antidepressant or mood elevator works. do not underestimate juries. The hazards of lack of practice are revealed by this following segment from an actual murder trial.The Expert in Trial (draw a barrier) this process. as if to convey. the dirt stays on the floor.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. What will cross-examination be like? What is the jury to make of this apparent hesitancy and doubt? Remember also that—as is clearly seen in that excerpt—the court reporter is entitled to. stutter. the best cross-examination is. Adventures in Cross-Examination For experienced experts. because a seasoned expert will simply use cross-examination as an opportunity to make some of the same points made on direct with different emphases. The jury hears the testimony twice—an aid to both memory and persuasion. may record every pause.” but this appreciation is lost if the jury cannot understand or follow your description. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. the chemicals stay in the spark gap and keep working so that your mood is lifted. such an avoidance of cross-examination is sound trial strategy. 83 Although this mode of explanation may seem cumbersome. Respect the juror. . Um—as the events became closer to the—um—incident itself [the murder]. grunt. some scholars assert. As you can grasp by merely reading this response aloud. and throat clear that you emit on the stand. even if the technical details are lost in the shuffle. it is numbing to a jury. depressed— um—and seeking help. Over the years.” preferably said in a mildly contemptuous tone. “I have no questions for this witness. “I don’t care to waste my time on this whore. The expert is on direct examination by his own retaining attorney. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. the jury usually appreciates being given the “inside story. any testimony from this witness would be bought and meaningless. if you do that. This is a powerful argument for at least organizing your thoughts before you begin to testify. In the same way. and slavishly but perfectly appropriately. just like putting your hand over the vacuum nozzle. I have been impressed by their ability to grasp what is at issue.” Realistically. Recall that this is direct examination by his own retaining attorney. and the expert has theoretically prepared to tell the story in a coherent manner. Consider practicing such a description with your attorney or colleagues or friends.
however. such as the previously listed leading questions. surprisingly. The following are some examples of the last (all are leading questions. Instead. attorneys do not perform this simple but effective maneuver. or publications. the attorney’s wish or need to have the client see the attorney doing something.but not on direct examination): • “Isn’t it true that a patient’s condition can sometimes change rapidly in a short time?” • “Psychiatrists can be fooled about a patient’s sanity.. The tight rein on which you are held may make it difficult to get your opinion out there.. “that’s generally true” and you may be too flustered to challenge the action. never ask a question to which you do not already know the answer.” . can they not?” • “Another expert might come to a different conclusion. SECOND EDITION Most often. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. what you say is often true in other cases. no problem. the attorney’s competitive strivings with the opposing attorney or firm. First. interrogatory. The attorney may know the answer to a particular question from the expert’s report. It is better to say. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. If you want to say. questions beginning “Is it possible. isn’t that right.e.” the attorney may move on to the next question after you have said. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. the attorney asks closed questions. and even the attorney’s competitive feelings directed toward the expert. not always) aware of two fundamental principles that should guide this activity. or alternatively. equivocating hurts you.” are almost always answered yes on the theory that almost anything is possible). but in this instance it is not. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. deposition. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). which may be asked on cross. the question answers itself ).”) or exhibitionism (“Watch me shine!”). Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination.84 THE PSYCHIATRIST AS EXPERT WITNESS. “Although the present case is a clear exception to that rule.. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. Even those attorneys who opt to engage in cross-examination are usually (but. ask only questions to which only one answer is possible (fittingly. “That’s generally true. or the answer may be obvious from the question (i. Throw it away.
I seriously recommend that you try to look as if you are thinking to clarify for the jury what this pause in the proceedings is all about and to allow those jurors who have dozed off to be awakened by the sudden silence. to be sure you are clear about the question. if needed. some attorneys advise not discussing your testimony. At times. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. this type of questioning means that you have only three answers available: “yes.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). Scholars liken agreeing to this either-or approach to signing a blank check.” and do so. Breaks During breaks that occur in the middle of cross-examination. consequently. and a mere yes or no may fail to convey the “whole truth. At such moments. Quotes On cross-examination. You took an oath to tell the whole truth. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. some sources suggest answering at the outset. say it. Practically. Doctor. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . “I’m going to take a moment to think about that. Remember that you did not write the article or make the statement during a lecture with this particular case in mind.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no.” This response may be foreclosed by the judge directing you to answer anyway. Always ask to see the context if you do not immediately and completely recall it. if not. or have you dozed off? It is best to state. to consider your answer carefully. We’ll reconvene in 15 minutes. state that you cannot answer yes or no. a question will require more time for prolonged thought or searching of your memory. and think seriously about whether yes or no will represent the whole truth.” “no. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. The key word is truthfully. a judge may even decide to declare a recess: “While you are thinking. If either will do so. and to allow your attorney to object.” The break gives you ample time to think.” Listen with intense attention to the question. we are going to take our midmorning break right now. the attorney may quote something that you wrote or lectured on.
These include biological and physiological crises or circumstantial ones. you may have been deposed. you would have been obligated to so inform your attorney. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. Some experts have only an iced tea for lunch and forgo any other intake to avoid postprandial torpor and the dulling of attention that may accompany it. you have confused loyalty to your attorney with the oath to tell the truth. incomplete. you may have written a report after reviewing some quantity of material. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. Later. Some experts want to call their offices during breaks. could change with complete validity based on some new fact that you hear for the first time during the trial. Subsequent communications may be labeled supplementary reports to keep the sequence clear. the one that counts. such as the discovery that you have left a key document in your suitcase across the courtroom or. The Final Opinion During the course of expert consultation. SECOND EDITION sions with your own personal lawyer are protected). Use your own judgment and knowledge of your biorhythms. Your final opinion. Crises Various crises may strike while you are on the stand. An aid to this conceptualization is to label your first report. even worse.86 THE PSYCHIATRIST AS EXPERT WITNESS. In theory. in the trunk of your car. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. because it is based on data. and some additional material may have come your way just before the trial (which. your opinion. if requested. The thrust of this line of questioning is to convey that your opinion is premature. but let’s assume it did not). others find telephone calls distracting and let whoever is covering for them handle things. had it changed your opinion. . For the lunch break. I recommend avoiding eating heavily. as a “preliminary” report. This change is as it should be. is your actual trial testimony. Now you must testify on the witness stand. or inadequately grounded in data. The cross-examining attorney may make an issue of the fact that you had not seen a particular document or known a particular fact before you gave your opinions in your report or deposition.
Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. The judge will almost always grant this. it is preferable just to hang in there. sickly. and both grudgingly acknowledge that neither has any more questions for you.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). Ask the judge if you may take a brief break for personal reasons. If you do shake hands. Focus on slow. Do not be inhibited by fears that. conservativeness is probably better (the discreet nod rather than the glad-hand wave). This behavior conveys too much interest in the outcome for someone who is not a party to the case. at odds with your objectivity. and serious distractions impair your work. Deal with the problem and then continue with your task with restored focus. or weak. nod politely to the jury. Some more extroverted experts thank the jury out loud. wave at the jury box (“So long. and go. measured breathing. you will appear inept. childish.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. and sit more upright to relieve tension. Doctor. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. On occasion as I have left the courtroom. you seem to be acknowledged . when you are through.” At this point you say. one of the parties or even one of the attorneys reaches out to shake my hand. get down from the stand. The judge dismisses you by saying. The End of the Affair Finally. Your job as expert is important to the case. or emit other social behaviors. What do you care what happens? You only testify under oath. you exit. to see the outcome. Forensic etiquette requires that you just leave. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. More troublingly. it invariably conveys the strong suggestion of partisanship. as always. “Thank you. for example. entitled. fans!”). Do not stop to chat or debrief with the attorney. If a delaying tactic is not used. it poses a dilemma of a no-win situation. “You (or the witness) may step down” or “Thank you. stretch your limbs behind the screen of the stand. No one knows the effect of these gestures. or to learn of other subsequent activity. by needing to go to the bathroom. Do not hang around to hear what other witnesses say. Your Honor. While this is a common and respectful courtesy. that’s all.
consider making advance arrangements with the attorney so that he or she will hold on to your case materials and retain or discard them as desired. by letter or telephone. Finally. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. J Psychiatry Law 28:235–251. and the like—impinge on trial outcome. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. Take only your report. Reaching out your hand to the other side’s party or attorneys in some desperate dramatization of neutrality or even-handedness is likely to confuse everyone. “juror countertransference” toward the attorneys. References 1. 2000 .88 THE PSYCHIATRIST AS EXPERT WITNESS. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. Most courteous attorneys will inform you later. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. you seem rude. A far more detailed analysis of testimony can be found elsewhere (5). It is perfectly appropriate after some time has passed to call and ask the outcome. Because this brief volume can serve only as an introduction. If you have traveled far with a heavy load of database materials. I recommend instead treating each testimony experience as a kind of continuing education: What did you learn? What questions were you asked that caught you by surprise? Which crafty attorney’s gambits succeeded and which failed during your crossexamination? Did you in fact get to make the points that you believe needed to be made? Did you feel you were clear to the jury? Was there a better way of explaining or describing something other than the way it came out in court? These questions and their thoughtful answers are the true indexes of your success in trial. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. some forget. Gutheil TG. SECOND EDITION for good (but partisan) work. as much as possible about what happened and why it happened. as always. the best teacher. however. Forces beyond your control and outside your testimony—such as the demographics of juror selection. Surprisingly. if you do not or you ignore the outstretched hand. this task is for the lawyers. always seek feedback and reactions to your participation. while acknowledging that experience is still. For your personal development as an expert.
The Expert in Trial 2.
Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993
Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.
It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91
Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. sharp. cancellation) is as follows. which also require several people to synchronize their schedules. for example: “Doctor.. a forensic interview. As a rule of thumb. others are not.M. This type of schedule is close to reality. The last two priorities are interview and report. The second priority is depositions. but during the very week that you have scheduled four weddings and a funeral. so let’s put you on first at 9:00 A . although obviously fewer persons and a shorter time frame are involved than are for trial. The tension here is that some courts. requiring two parties to match schedules. with a deposition for a third case.92 THE PSYCHIATRIST AS EXPERT WITNESS. An attorney who planned to have you “bat cleanup” (i. court dockets are crowded and leave little flexibility. If a trial and a deposition are scheduled for the same time. You’ll probably be cross-examined for 1.” Smile politely when you hear these words but make expansive plans. add another layer of challenge.e. In extreme circumstances. Trials take first priority. and telephone calls to resolve them. I know you have a busy schedule. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. hours. of course. the hierarchy of urgency and therefore attempted postponement (or at worst. You may have a little room to maneuver in terms of the order in which you testify. Because your attorney has the most interest in your presence. I can’t imagine my direct examination taking more than an hour. theoretically. and serious matters hang in the balance.. and accommodating. the other side may be willing to have your testimony inserted into their side of the case. comes before a report. SECOND EDITION for months without any forensic activity whatsoever.” in this volume). You can count on your eyeballs the number of times this clockwork model actu- . testify last in order to summarize) may be willing to move you earlier in the case and somewhat restructure your direct examination to compensate for this maneuver. Because your reports can be done at any time of the day or night. and other-side attorneys are reasonable. negotiation. Travel glitches (discussed in Chapter 10. tops. two trials in different states will be called simultaneously. You must do the best you can with what you’ve got. Large numbers of people are involved. with suitable preparation of the jury. the trial should take precedence. he or she will be exerting the greatest efforts to make it all work out. “The Expert on the Road. but things happen. maybe 2. attorneys. You’ll be out of there by lunchtime. flexible.
2002 Reid WH: Forensic practice: a day in the life. 2.Some Pointers on Expert Witness Practice 93 ally occurs. Although my colleagues and I tried to study this issue formally (2). The best aid for peace of mind for the would-be forensic expert is an understanding spouse. 2006 . The attorneys wrangle over whether some document relevant to the next witness is admissible.” In addition.M. difficult choices may have to be made. 1996 Suggested Readings Gutheil TG. negotiation may be possible for some scheduling conflicts but not always. The judge assigns a long lunch and hears another few motions just afterward. Why? Although some judges are scrupulously punctual.) Your So-Called Life Another scheduling issue almost entirely ignored in the forensic professional literature is the question of events in your personal life that may conflict with forensic commitments. American Psychiatric Publishing. The aforementioned realities make it essential for you to clear as much time as possible for a trial appearance and to arrange contingency coverage in parallel. Thus. 2004 Kearney AJ. Commons ML: Trading forensic and family commitments. (More suggestions on scheduling are included in Chapter 10 in this volume. as a kind of swing time in which he or she can hear a half dozen motions in this and other cases and “dispose of them. Gutheil TG: “Paraforensic” aspects of expert witness practice. it is not uncommon for an out-by-noon case to extend into the next day. a judge will treat the time between 9:00 and 9:30 A . References 1. The jury takes a long midmorning break. no clear conclusions can be drawn. J Am Acad Psychiatry Law 32:356–358. In the end. J Psychiatr Pract 12:50–54. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Occasionally. However. partner. DC. some are not. the odd juror gets stuck in traffic. Gutheil TG. The subject may represent some kind of taboo because it is rarely discussed. and family. Bull Am Acad Psychiatry Law 24:533–546. Washington.
This page intentionally left blank .
or a physician’s deviation from the standard of care. or for a disability determination. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. In this chapter. some basic principles on letter writing to the court are described and are not repeated in this chapter. a court. allowing careful legal analysis and reflection on whether you will be helpful on the case. In all such cases. or to serve on a jury. 95 . for a worker’s compensation claim. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. attention to the preparation of the written document results in a product that assists the legal system in its efforts and goals and validates your contribution to the process.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. a description of an independent medical examination for a personal injury suit. to serve as a witness. an attorney. a defendant’s criminal responsibility. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. In The Psychiatrist in Court: A Survival Guide. I focus on writing the full-fledged forensic report. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. or a full evaluation of a person’s competence to stand trial.
M. These are all powerful arguments for careful thought. 2) a summary report. Despite these useful functions. Obviously. detailed report. the reader should be able to understand how the opinion was reached from the data in the report. Consequently. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. I refer to him explicitly in the text). SECOND EDITION Alternatively. In other situations. . for which I am most grateful (where I cite his material. because the first is self-explanatory and the second is an extract of the third. all should govern the form of the report. It should stand alone.” Dr. a leading forensic scholar who lectures on forensic report writing at the annual forensic review course of the American Academy of Psychiatry and the Law and elsewhere. Resnick. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. and 3) the full. Critical documents should be briefly summarized within the report. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. of course): 1) no report. has generously and graciously granted me permission to cite some of his advice on report writing. without detailed discussion of the bases or reasoning behind those conclusions. I emphasize the third form. General Remarks The report as a whole should meet certain criteria. and humanity. “Reports should be self-sufficient. the report may present materials or approaches that the attorney does not wish to share with the other side.D. which in that jurisdiction is discoverable by the other side. and meticulous proofing and review of any report you produce. the attorney may ask that you not furnish a report. painstaking preparation. For similar reasons. Forensic report writing. simplicity. may take three major forms (with variations possible. then.. According to Dr. Resnick also identifies the “four principles of good writing”: clarity. Resnick. It should contain everything that you need to support your opinion and no irrelevant material. which states all of your conclusions and the analysis of all the relevant substantiating data. brevity. In this chapter. It should be just long enough to cover the essential information but not so long as to exhaust the reader. which presents your database and conclusions only.96 THE PSYCHIATRIST AS EXPERT WITNESS. Without referring to other documents. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. Phillip J.
Include any interviews per- . emotional injury or psychiatric malpractice). Identifying data can be presented in a number of ways.” and subsequent contributions.. The Occasion The occasion. One way is to provide the case citation or caption in whole or in brief (e. legal pleadings. otherwise. and depositions. or State v. use a standard business letter format.. Jones et al.g. John Johnson).” Some attorneys. think of your report as a memorandum and use a standardized format. the case or docket number if known. reasoning that the occasion is obvious from context. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . or the type of case in a civil matter (e. of the report should address the question of why you are writing this report. Smith v. the charges in a criminal case.g. One model by Dr. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. police reports. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. . The heading should also include your letterhead and the date of the report. what is your standing in the case that justifies this missive? How and why did this examinee get to your doorstep? Examples might include the following: • “At the request of Attorney John Smith (or Judge Janet Jones).. sometimes called the referral.” The Database After identifying the occasion.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report.. In that case. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. that is.. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs)... Resnick is included at the end of this chapter.. I examined (name of examinee) with regard to (forensic issue). or emendations should be titled “Supplementary Report.” • “I examined Ms. additions.
all depositions). the overall basis is described as both the database (all the material reviewed in the case. The rationale for placing the conclusion last is that such a structure allows the reader to develop an evolving (and therefore deeper) sense of the expert’s reasoning as it may (or may not) lead to the conclusion.. logical grouping (e. Note the wording. A typical conclusion in a malpractice case. or according to some natural. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. or other) is free to stop there and make decisions about future directions in which the process should go. in the treatment of (plaintiff ). for example. The expert escapes the accusation of being too conclusive in voicing the opinion by providing the steps and stages of reasoning that point to the outcome. It is important to couch your conclusion in the explicit jurisdictionspecific language defined in case law or statute (your lawyer should inform you what this is) and to state it according to the standard of reasonable medical certainty (or its local variant) to render your report material and admissible. you are free to choose your favorite. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. and so on.g. that. including interview data) and your total clinical background of training (what you were taught) and expe- . (or. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). chronologically. about the disposition. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. Although each group has a rationale. The remainder of the report is thus treated as optional reading. SECOND EDITION formed and their date and length. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . attorney. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. it is my professional opinion. all medical reports. The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge. The documents may be listed alphabetically. held to a reasonable degree of medical certainty. no convincing case has been made for the inherent superiority of either approach. First.. .98 THE PSYCHIATRIST AS EXPERT WITNESS.
It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. “If there are two versions of the facts. although representing the core of your opinion. your conclusions should be presented in . you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue.” In every case. If your conclusion is stated at the outset. offer alternative opinions. sometimes different spins on the truth. effectiveness. Third. Resnick explains. standardized legal language). insanity. Second. “Reasons supporting opinions should be clearly and fully stated. the expert should scrupulously avoid assuming one side is correct. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. If your conclusion comes at the end of the report. Resnick states. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. Dr. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making.. you may provide the supporting data in any coherent and logical manner (such as by the categories of a standard psychiatric workup or by type of data such as an interview or a deposition). As Dr. is essentially boilerplate (i. it is predictable that plaintiff and defendant tell different stories. The reader should not have to use his/her own inferences to understand the point. and credibility as an expert witness. usually. Remember that the conclusion. be it competence. Dr. sometimes frankly contradictory. but occasionally.Writing to and for the Legal System 99 rience (what you have found for yourself by practicing in the field about which you are testifying). more likely than not).. malpractice. Resnick suggests using subheadings to organize the information and facilitate the flow of the report.e. this section should contain extracts of previous material directly supporting the points you are making.” Multiple Realities In civil cases. the defendant usually has admitted the act for which he or she is charged. In criminal cases involving the insanity defense. you can present the supporting material in several ways. Finally. or other. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act.e. Your ability to back up every one of your conclusions with multiple specific examples and corroborations from the database is the essential test of your value. In these cases. Supporting Data After the conclusion.
and deleting. even if it has been removed from your report for brevity. These are not weaknesses of the report. or agency for which it has been prepared. you may receive requests to alter the report in some ways. (Remember you must be candid about everything you believe to be true. asking for the addition of new material not supplied to you earlier.. or to change the substance of your opinions.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. some are not. judge...” This approach prevents your seeming to side with one party in the case.if defendant’s version is true. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. A challenging gray zone is negotiating about wording. or data (such as inadmissible material. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions... Postreport Negotiations After your report is finished and has been sent to the attorney. summarizing. SECOND EDITION the following form: “If the allegations are true. these should be recorded.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. and shortening the report by aggressive editing. then . then . but generally there is no inherent problem . then . Some requested alterations are fully ethical. to alter or misrepresent facts in the database. money. interview of plaintiff blocked by attorney. Whichever approach you actually take in your written report. it is essential that you identify and remain ready to testify under oath to such contradicting factors if asked under cross-examination (or direct examination for that matter). Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. and Rebuttals If there have been any constraints of time. Limits. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. Constraints.100 THE PSYCHIATRIST AS EXPERT WITNESS.. on the contrary. which make for a stronger report. A case example was discussed in Chapter 3 (“First Principles”) of this volume. There is no absolute guideline for this procedure. it would be a weakness not to acknowledge these factors candidly. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data.
very likely. 2. 10. 6. 12. 16.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. 14. 4. Be careful about changing wording concerning issues of causation. but it may get you started. 11. and effect of emotional injuries—three common problem areas. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. extremely likely). There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 15. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case.1 1. Identifying information: Source of referral: Referral issue: Sources of information: Qualifications of the examiner: Statement of nonconfidentiality: Past personal history: Family history: Sexual and marital history: Educational history: Employment history: Military history: Relevant medical history: Drug and alcohol history: Legal history: Psychiatric history: Prior relationship of the defendant to the victim: 1Used with permission. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. intensity (likely. 7. 17. 5. 9. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 13. Resnick’s outline for a typical criminal report. 8. The Criminal Report: An Example The following is Dr. . 3.
22. New York. MA. 25. pp 577–605 Weiner IB: Writing forensic reports. 23. Hess AK. Guilford Press. New York. 2007. 20. Edited by Weiner IB. THE PSYCHIATRIST AS EXPERT WITNESS. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. Poythress NG. 3rd Edition. et al (eds): Consultation. pp 511–528 . 1986 Melton GB. in Handbook of Forensic Psychology. 24. SEAK. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. Am J Psychiatry 143:164–169. SECOND EDITION Defendant’s account of the crime: Witness and/or victim accounts of the crime: Mental status examination: Physical examination and laboratory tests: Summary of psychological testing: Competency assessment: Psychiatric diagnosis: Opinion: Suggested Readings Babitsky S. Falmouth. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. 1987. report writing and expert testimony. Petrilla J. 19.102 18. Wiley. 21.
embarrassments.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. and inefficacies. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. In the late 1970s. and a typeface for our official stationery.” The ability to say yes to all comers seemed like a good idea at the time.) 103 . (I believe this excluded only admiralty practice and the law of the sea. heard of. Unfortunately. In this chapter. We sent this announcement to every attorney we had ever worked with. We will let you know shortly which of our directors will be working with you. and we drafted an announcement. such an affiliation would mean that we would be able to say to any attorney who called us. “Yes! We (or the corporation) will take your case. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. a letterhead. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. We retained an industrial designer to help create a logo (highlighting crimson. to connote the Harvard connection). I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls.
SECOND EDITION All this effort did nothing. for example. The result was tantamount to letting a drop of water fall into a large lake. clinicians) led to forensic referrals: word of mouth. commercialized hustling for business—or the appearance thereof. opportunistic.e. The balance must be struck between dualities such as generating word of mouth versus hucksterism. “Types of Typical Cases. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. Ordinary advertising in Lawyers’ Weekly. list. inform.” in this volume). . Most recipients almost certainly awarded our announcement the coveted circular file disposition.104 THE PSYCHIATRIST AS EXPERT WITNESS. sharing useful information versus being pushy. an expert’s marketing strategy shifts to generating favorable word of mouth.. but the net effect for all this time. write. and unspecialize. word of mouth). is suspect and not reliable as an approach (see also Chapter 4. and pride and confidence in your work versus hired gun certainty or grandiosity. and expense resembled our own responses to offers that come in the mail to sell us insurance. Based on this reasoning. thought. The problem with some forms of getting the word out is that you may not know how a particular listing is regarded within the legal field. that is. Support for this theory came from Harvey Research in 1994. We received a few form announcements from two or three firms about their offerings. would you get a straight answer from the attorneys you would want to work for? Strategies Various approaches to building word of mouth are recommended as you develop and market your forensic practice: announce. speak. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. The Delicate Balance In all approaches to marketing. The Key Approach As time went on.
too little time. and send it to attorneys and clinicians. If you are moving into a new town. Opposing attorneys. the GAL may do a preliminary survey of the psychiatric aspects of a case. then reporting to the court. 3) attorneys. judges may need your services. informative.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). 2) your forensic peer group. Alumni bulletins and class reunions are also opportunities to get the word out. . Describe those services you can authentically offer. If you inform your peer groups about your availability. polite letter informing local judges of your availability for forensic services. trifold sheet of fine paper with a brief description of the expert and the services. Among other roles. Finally. will see you in action in deposition or trial. the announcement should display the professionalism that you plan to bring to the work. Serving as a guardian ad litem (GAL. it should be tasteful. Although your forensic peers may seem to be your competition. Thus. Attorneys whom you can inform include your own attorney. or other reasons. and 4) judges. if you have one. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. including listing services you are not truly expert in. they may turn away a case because of a conflict of interest. they may think of you at that point. It is unclear whether the brochure is superior to the announcement and may be better utilized as the second item of information sent after an initial communication. in effect. they will be useful to you in several ways. and factual. Some experts replace the announcement with a minibrochure: a single. National meetings of professional associations (such as those of the American Psychiatric Association [APA] and American Academy of Psychiatry and the Law [AAPL]) and local chapters of other organizations offer additional opportunities for informing peers about openings in your caseload. Avoid any hype. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. of course. you may wish to send a short. and lawyer neighbors and friends who might pass your name along. hand it out at a lecture. previous associations with the attorneys on the other side. For your clinical peers. First. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. or use it in some other appropriate way.
and similar humiliations. Other listings in compendia such as “Attorneys’ Guide to Experts” and those of the National Forensic Center may be viewed as less clearly objective and neutral and may pose similar risks to outright advertising. review. this skill is acquired. SECOND EDITION List Listings can be effective as well. Beat the Press (2). which are often seeking a stable of experts to comment on medicolegal stories of the moment. try to become involved in local media such as call-in shows. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). may be helpful in dealing with the media. sign up as an entry in an existing lecture series. ambush journalism.106 THE PSYCHIATRIST AS EXPERT WITNESS. Your podium demeanor may convey at least a little about your expected performance on the witness stand. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. good visibility also can be obtained by letters to the editor of major journals reporting on a single case or responding to the articles or letters of other contributors. or commentary and have it published. In my opinion. these publications may be explored. however. Admittedly. Although it is useful exposure and a valuable resource to write an analysis. or established continuing medical education programs. but the wounds of experience are probably and ultimately the best teacher. the topics of which appear on the screens of attorneys’ computer searches. such as hospital grand rounds. You will be exposed to attorneys and legislators. and media exposure may open you to crank calls. both of whom may be potential referral sources. The APA Public Affairs Office provides some guidance in dealing with the media. such as clinicians and lawyers. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. Write In our computerized modern age. many referrals to psychiatrists come from publications. Become active in your district branch legislative committees and processes. no one will show. One reference. Finally. departmental conferences. Instead. .
You will derive no income. integrity must be your watchword. trivial cases allow you to be observed in action by potential employers. and your course as hired gun may be marked. and other aggrandizing statements that are. three novel but common questions in the qualification phase of the modern deposition are: Do you advertise your services? Do you use expert broker organizations? Do you have a Web site? All of these associations can be used in attempted impeachment—for example. In the same vein. I will work only on high-profile. based on your fine performance at the deposition. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. If you decide to use a Web site. It does not matter if the first three cases (or five or ten) that you get are ones that you must turn down as baseless. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. including this one. Be extremely careful about posting your qualifications. some critical considerations are the following: 1. some broker organizations guarantee your opinion.” This is a losing strategy. place in the profession. 3. It may then take you years of work to unblemish your reputation. Beware of making or seeming to make extravagant claims for your knowledge. It does not matter if the case is trivial or small potatoes. and interest. one turn to the Dark Side of the Force. What About Web Sites? In the modern era the use of Web sites has increased for all professions. no matter how slight the issue. 2. a point that cannot be overemphasized. skills. modesty. Even minor. From the absolute onset of your career. training. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. as it were—but the Web site is perhaps the most explicit. Begin your career by unspecializing. wherein you follow the ancient maxim. widely publicized mass murders. by definition. Have the site professionally designed with attention to taste.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. No case too small. but you will obtain valuable exposure. Consider taking on some pro bono work as well. Do not bend the truth to satisfy the attorney. even at the outset. certifica- . Conservatively stating your incontrovertible credentials (actual appointments. In fact. extremely public.
whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. Remember to thank your referral sources.” Although you are feeding the competition. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. American Book Business Press. References 1. “I can’t take this case (because of time. Salt Lake City. Additional Pointers The issue may seem trivial. you are also revealing yourself as a good first stop on the search for a good expert. specific required expertise). Dattilio FM. You are saying to the calling attorney. but I will take it upon myself to find somebody good who can. Return telephone calls are the easiest marketing device and one of the most effective. publications. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. In analogy with clinical referrals. sound. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. at times trying. Guyant A: Beat the Press. but its importance cannot be overstated: return telephone calls promptly.108 THE PSYCHIATRIST AS EXPERT WITNESS. Building a practice on word of mouth is slow. 2002 2. for referrals. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. SECOND EDITION tions. choose only those experts whom you would be confident to have on your side if you were being sued for something. recall the value of brokering. 2003 Fulton S. Finally. etc. including attorneys and fellow clinicians. and effective. Sadoff RL. conflict. I reemphasize the point made in Chapter 1 (“Introduction: What Makes an Expert?”) in this book: it is important to have a salaried job and/or a private practice to insulate you from slavery to the fiscal pressures of forensic work. J Psychiatry Law 31:5–19. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. and demanding of patience. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. UT.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). but no other method is as reliable. .
Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. out of Falmouth. . 1997 Feder HA: Succeeding as an Expert Witness. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. CO. WW Norton. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. Inc. I disclose that I have lectured for SEAK numerous times over the years. New York. Tageh Press.. Massachusetts. Glenwood Springs.
This page intentionally left blank .
111 . M. mockery. M.C H A P T E R 10 The Expert on the Road: Some Travel Tips for Testifying Away Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy. seasoned travelers may skip the chapter entirely. this chapter will be too obvious and not relevant to your needs. the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips. or interviews. As always. IF YOU TAKE ONLY CASES in your immediate neighborhood (such as might happen when you work for a court clinic) or if you are already a seasoned traveler.D. I address some tips and strategies for the expert who is inexperienced in traveling to cases. and opprobrium. Simon.. The author is indebted to Robert I. In this chapter. William Reid.. examinations. and his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices.D.
For cases that involve land travel. Another useful reference is Jet Smart (2). and hotels directly and save you much time and stress on the telephone or online. travel agents. the emerging online travel services (Expedia and the like) may prove useful. testify or interview the next day. the Internet. SECOND EDITION The basic situation I describe is one in which you travel by airplane to the city where the trial (or deposition or interview) is being held. and one pair of shoes. Some General Recommendations Travel Information Travel guides are available everywhere. Consult with significant others for their opinions if needed. polished shoes for men and women). I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. matches. Running shoes also allow you to sprint through airports to . Still other guides are provided in the suggested readings at the end of this chapter. especially in flight. and general information can be obtained from books. looks professional. on rare occasion. stay overnight in a hotel or similar setting. and your colleagues. Opt for crushproof fabrics and materials whenever possible. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. and return that day or the following one. I recommend The Packing Book (1) as an excellent resource if you always arrive at your travel destination with the wrong clothes in serious disarray and find you have left out several important items. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. Some experts like to subscribe to an official airline guide for creative problem solving if they are marooned in distant locations because of altered or canceled flights. cars. to ensure that it still fits. These services can book flights. Alternatively. you may make the appropriate adjustments. the process takes even longer. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. you must assume significant time delays and be prepared for your time commitment for court appearances to go into a second or even third day. especially if you have not worn it for a while.112 THE PSYCHIATRIST AS EXPERT WITNESS. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. Try on everything before you pack it. and is in good repair.
A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. for one or two telephone calls per day to the office to check on things. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. a useful principle is to avoid double billing in any form. If the trial runs longer than a day or so. respondents to our survey apparently threw up their hands and billed everyone for everything! Some of our other studies (3–5) revealed the remarkable lack of agreement among experts as to what was fair and standard. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. because some law firms are slow to reimburse hotel and plane expenses). Avoid checking baggage if you can. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. but not alcoholic beverages. for example. which are. fortunately. do not bill for sleep (you do it anyway). in-room movies. or 2-hour long-distance calls to your paramour. It is possible. rare but extremely stressful when they do occur. you may bill for that time but not for the ticket because the first case paid the whole trip already. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. for one telephone call to the family. The Ethics of Billing Bill strictly according to your fee agreement. then.g. Separate business from personal comfort.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. 1 day at your day rate. if you are flying to a case and use air travel time to review the case. to pack for 2 or 3 days of travel and bring most of the key documents in a case along for review while remaining in full carry-on mode. For example. massages. do not bill separately for that work because you are already being paid a day rate. Until data emerge. is addressed nowhere in the forensic literature). If you review a different case on the way back.. Seek equitable division of costs for multiple-case trips. and for the regular three meals. the literature is relatively unhelpful (the issue of double billing. You have enough to worry about .
These should include sewing items. eyeglass screwdrivers and replacement screws. extra eyeglasses or contacts if you wear them. makeup bag. Current travel restrictions have shifted the allocation of liquids. In psychoanalytic theory. lotions. and similar medications. not to mention the current airline custom of charging extra. In addition. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. you may opt to wear the suit or outfit on the plane and guard it in transit. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. and extra combs. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. even under the seat in some cases. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. extra shoelaces. Other useful miscellaneous items include adhesive bandages of various sizes and types. safety pins in various sizes. but you may wish to experiment with a friend’s suitcase. which may also be prepacked. or toiletries case. and string. and cleaning. it is indispensable to your successful travel ventures. the principle of multiple function is one of the basics of a dynamic understanding of mental life. these roll-alongs often fit either in the overhead compartment or. with a little applied topology. remedy. It is definitely a basic principle for assembling your kit. Remember also that your kit should contain items that permit repair. such as a variety of buttons and threads to match your clothes. light flashlight for power outages and searching under beds for lost items. A pair of all-nylon running-type shorts and a quick-drying top are versatile items that can be worn not only for exercise but also in the Jacuzzi or in your hotel room as a comfortable lounging outfit while you review the case.114 THE PSYCHIATRIST AS EXPERT WITNESS. What you take should have similar versatility. Dopp kit. a small roll of duct tape. do not skimp or economize on the roll-along suitcase. Alternatively. multifunction “pharmacy” also should be included. . A small. and rubber bands. Wear your workout or running shoes on the plane. decongestants. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. In general. stain-remover sticks that do not contain toxic petrochemicals. The Kit Whether you call it a travel kit. antacids. a small. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. and pack the rest of the gear. and creams to quart-size plastic bags. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions.
or order special low-fat meals. You breathe through a filter that lasts long enough. on very dry flights. Seriously consider avoiding airline food entirely.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. try breathing through a moistened towel for short periods. Emergency Items Neurotic fears can certainly flower when you travel. First. and special arrangements. If you have a disability. I recommend the hotel or motel for several reasons. The latter appears at first glance both socially desirable and economical. Almost all modern hotels in the United States have smoke detectors. often hooked to a travel alarm clock. but you can buy your own compact version. Drink water steadily to avoid travel dehydration.” this discussion will be helpful. Second. in theory. fly out. you are undistracted by social obligations and family strife or background noise. although occasionally.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. Besides a small flashlight. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. I carry a compact “smoke hood. testify. because someone else is paying your way to the location. for you to get out of the toxic smoke and gases to safety. experienced travelers can skip this discussion. call the airline early to check on facilities. procedures. it is more professional to meet with your attorney the night before the . institutional hotel or motel and cadging free lodging with friends or relatives in the area. This item is available through a number of catalogs. as well as extra disks and the instruction manual if not on the hard drive already. fails). Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. remember to carry light extension cords and voltage adapters. The traveling expert is sometimes torn between staying at a cold. Secrets of Staying If you are unfamiliar with the expert art of “fly in. but some precautions seem sensible.
hotels provide irons. Don’t forget to set the room thermostat to your accustomed household temperature. but not all. My first move on entering a hotel room.116 THE PSYCHIATRIST AS EXPERT WITNESS. If a paper clip or safety pin does not suspend the cloth or towel well. if desired. wring it out thoroughly so that it doesn’t drip. . Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. Whether the room’s air system is heating in winter or cooling in summer. Traveling to the courthouse with your attorney may provide a valuable opportunity to be updated on the case and to get in touch with the emotional tone of the courtroom and the proceedings to this point. A simple but effective method is to soak a washcloth or hand towel in cold water. back up the call with your travel alarm. a business trip. did not leave the clock set to that time so that you wake before dawn to the snarl of the alarm in a full-fledged panic attack and cannot go back to sleep. you are free to visit friends and family at your own discretion. is to make a beeline to adjust the hotel’s alarm clock or clock radio. after all. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse.M. this is. Secrets of Eating In traveling to court. and headachy on the stand. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. Remoisten it as needed. after I put down my luggage. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. After the trial. have your martini on the airplane home after it is all over. It is probably safest to avoid all alcohol during the trip before testimony. you can often wad up the corners and jam them between the top louvers of the inlet so that the cloth or towel hangs across the incoming air inlet. My second move often is to arrange a do-it-yourself humidification of the room. of course. SECOND EDITION trial in a hotel room or conference room. an essential part of effective testimony. Some. a situation that can leave you hoarse. the air is invariably dry in most hotels. Experimenting with culinary exotica is asking for a case of turista at worst. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . obviously you should eat lightly and stick to what is familiar to you. nausea on the witness stand also may be misinterpreted. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. congested.
When you are up and awake. breathing techniques. These have ill effects. When possible. without aftereffects. Examples include prescription medications that you need during the course of a long day.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. Ordinary AM radio static and the sound of surf are two examples of white noise. or similar terms.. and with sleeping pills. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. benzodiazepines. by using either alcohol or sleeping pills (barbiturates. stain . including hangovers. usually described in catalogs as “sound soothers. or even a different time zone. Far better results accrue from sleep hygiene maneuvers. also eat lightly. plan your trip to allow time for recovery from jet lag. Catalogs sell portable battery-operated white-noise generators. either by closing them completely or fastening gaping fabrics with safety pins. Setting the radio to a “nonstation” to generate static and the television to a “nonchannel” to get the sound that usually accompanies snow on the television screen (modern digital televisions usually do not permit this) are both methods of achieving this end. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. and similar relaxants. the chatter of housekeeping staff just outside your door) is white noise. or others) at bedtime. you can have a serious meal without ill effect. of course. What to Take to Court Courthouses are notably lacking in amenities. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. I recommend it. as noted. so you may have to carry some supplies in your pocket or purse. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. spending some time in direct sunlight may be helpful in adjusting your biologic clock.M. After court. This term refers to sounds containing all frequencies. but all the data are not in. hot baths. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . just as white light contains all color wavelengths. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. actual memory loss can occur—the last thing you need.” sleep sound machines. Many travelers find it helpful to block out morning sunlight with the drapes.
mints. Slater FE. CA. Jossey-Bass. Ten Speed Press. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. WA. Psychiatric Annals 33:302–306.) Savage P: The Safe Travel Book.) Gutheil TG. 5. 4. and a headache remedy for the obvious problem. 2001 Simon RI.118 THE PSYCHIATRIST AS EXPERT WITNESS. I welcome your suggestions and favorite travel tips. cough drops. Revised. Miller PM: Expert witness billing practices revisited: a pilot study of further data. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. 1988 (Incredibly detailed. SECOND EDITION removal. James E: The Secrets of Simple Packing (VHS videotape). Gutheil TG: The forensic expert practicing on the road: new hazards along the way. Villard. Magellan’s International. New York. 1994 (An excellent guide to what to take and how to pack it. J Am Acad Psychiatry Law 26:21–26. San Francisco. et al. Although some of the pointers in this chapter probably state the obvious. 3. Berkeley. or refreshment. Santa Barbara.) St. Berkeley. or throat lozenges. Flying Cloud Publishing. Seattle.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. 1998 Gutheil TG. References 1. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Celestial Arts Publishing. Commons ML. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. 1996 . CA. 2003 2. sample wardrobes and general travel pointers included as well. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. I hope that these tips make your travel easier and less surprising.: Expert witness travel dilemmas: a pilot study of billing practices. J Am Acad Psychiatry Law 29:202– 206. Commons ML. CA. with the emphasis on safety and security issues.
M. and helpful testimony. If I have made too many assumptions about you. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. effective.D. the courts will continue. the more we serve this valuable and necessary function. including our medical colleagues.C H A P T E R 11 Epilogue I HOPE this introduction to the challenging yet always fascinating role of expert witness has been instructive and helpful to you. (American Psychiatric Publishing 2002). Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. if you wish to take your work to the next level. consider reviewing the successor volume to this one. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). Simon. the reader. The better we are at meeting the courts’ needs with ethical. I welcome comments and suggestions from readers to correct. As always. decry the expert witness function and voice arguments for its abolition. which I cowrote with Robert I. expand. to require our services in increasing numbers. The Psychiatrist in Court: A Survival Guide. or render this text more useful. 119 . from all evidence. or have taken too much for granted about your background and experience in any portion of this text. Although some forces in society. On the other hand. consider first reading the companion volume. That book may fill in some of the blanks.
This page intentionally left blank .
. The main points about the form are the use of basic language.e. 121 . is likely to be competent to consent to the interview). and the examinee’s attorney’s attestation that the examinee understands the form (i. I read it or have the examinee read it at the start of the interview and answer questions.Appendix 1 Consent Form for Forensic Examination AFTER PROLONGED ambivalence about use of a consent form I have begun to use the form on the following pages. supplied for consideration. clarification that the forensic examination is not the practice of medicine.
if needed. Because I am being interviewed in a legal matter. . Gutheil will explain or has explained to me and I understand that Dr. or out loud in open court in a trial. agree to have an examination by Dr. . Gutheil keep secret what I tell him. SECOND EDITION Consent for Forensic Examination by Thomas G. Gutheil has my permission to talk to people involved in my legal case about the things that he and I discuss and anything he thinks or decides about what we discuss. Dr. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. or have no effect on my case that I can see. in spoken depositions (where lawyers ask him questions). “follow-up. most of which will be very personal. 4. I understand that I can take breaks if I want to at any time during Dr. and I understand they will be part of the same examination and will follow all the above rules. however. and I understand. the person who has signed at the bottom of this letter. I understand and agree to additional repeat. nor will he suggest any treatments to me or for me. that he is not acting as my physician or psychiatrist in doing this interview or interviews. I agree to give up my rights to have Dr. M. Gutheil’s written report or out-loud statements for court may help my case. Gutheil”) I. 3. (“Dr. 2. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. Gutheil will not give me any medical or psychiatric treatment. Dr. Gutheil’s questions. Gutheil. Dr. I understand and agree that Dr. This means that Dr. Gutheil is a physician and a psychiatrist. I agree to be interviewed. the following: 1.D. Gutheil will explain or has explained to me. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. but if I refuse to give an answer or some answers. in connection with my legal case. Gutheil may write that down for the record.” or “update” interviews of me by Dr. Gutheil. I understand and agree that Dr. hurt my case. I understand. Dr. I also understand that I am not his patient in connection with or because of this interview or interviews. I understand that Dr. Thomas Gutheil. and I understand that no one can know which one it will be in advance.122 THE PSYCHIATRIST AS EXPERT WITNESS. The examination will be one or more personal interviews. I also agree to give up any rights I have by law to keep him from saying in court what I tell him or what we discuss. During this interview or interviews I will be asked a number of questions about myself. Gutheil’s interview or interviews. Dr.
free to show it to me. he/she appears competent to understand it. Dr. of course. a court officer. Signed. 20 . that individual is. to my assessment. Any report in relation to my case will not go to me but will go directly to my attorney. Gutheil’s retaining attorney. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Attorney for examinee Print name Date day of .Appendix 1: Consent Form for Forensic Examination 123 5. or the court as provided by law. I certify that I have answered any questions my client asked about the procedure.
This page intentionally left blank .
Gutheil. rescheduling is at mutual convenience. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. in addition. Gutheil shall be reimbursed for all time spent on the case. Standard Letter of Agreement by Thomas G. Gutheil”) 1. M. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. Dr. (d) 125 . at a rate of $ per hour plus expenses. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. and $ per hour for trial. and the same due for cancellations that occur less than 72 hours in advance. including portal-to-portal local travel (c).Appendix 2 Standard Fee Agreement THE EXAMPLE of a standard fee agreement that follows is annotated by lowercase letters in parentheses (annotations are explained at the end of the text for this agreement). (“Dr. the radical revision presented here has evolved from that in the first edition for the same reasons.D. $ for depositions.
Please note that because of vacation scheduling. (q) 6. please return one copy to Dr. For out-of-state evaluations or testimony. Gutheil. Gutheil will be unavailable for testimony in person during the month of August (f ). and examinations as discovery rules permit. Signature below indicates agreement with all (r) these terms.126 THE PSYCHIATRIST AS EXPERT WITNESS. (s) Note: Please send all case materials to (address) Date . SECOND EDITION per day 2. The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. For out-of-state travel. Gutheil’s FID# is . as an advance against which expenses are billed (p). 4. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. including travel by first-class conveyance and appropriate lodging if needed. Signed. A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. This agreement may be terminated by either party upon notice and such termination shall relieve each party of any assumed or implied obligations other than payment of any balance due (n). is the sole responsibility of the retaining attorney or insurer (i). irrespective of case outcome (j) or defaulted appearances. Dr. The retaining attorney understands that my forensic work is not the practice of medicine. Dr. Payment in a timely (g) manner. Gutheil by name (h). a retainer of $ pected 3 business days in advance. 5. Attorney or firm representative as individual and on behalf of firm (signatory shall have the power to bind the law firm with regard to his contract). prorated (k). leaving the retaining attorney or insurer individually liable for any unpaid balance (m). Before such travel is undertaken. any existing balance shall also have been paid 3 business days before departure (e). Overdue accounts may accrue interest at 6% per annum. and as a condition for its specific to this travel is exbeing undertaken. Failure to comply may void this agreement except for duties of confidentiality (l). 3. made out to Dr. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. materials.
“Consideration” and “agreeing” are trigger words that signal to attorneys. will throw up their hands in mock exasperation and say. others the same. i. can constitute a bias. noncontingent. l. whether you become an expert depends on your taking the case as meritorious and the attorney’s accepting you as an expert witness (for deposition and/or trial). but what can I do? That client just won’t honor his or her obligations. g. j. or trial. f. this statement makes the attorney agree to that possibility. Some experts charge differing rates. Working for the client. n. that this is a formal contract. Your fee is. it saves everyone time and heartache if you spell it out. attorneys are sometimes slow to reimburse travel expenses for interview. Doc. based on their training. b. make that clear so that you don’t waste a lot of time swapping checks between payees. If you do withdraw. This information frees up the attorney to ask for continuance or rescheduling. as it ethically should be. You have the right to request timely payment to prevent excessive backbalance buildup. To cut through nit-picking. h. this clause makes that explicit. deposition. the “clock” starts when you leave your home or office for court and stops when you return to office or home. thus. Some attorneys. You must be free to withdraw from the case if the contract is breached.Appendix 2: Standard Fee Agreement 127 Annotations a. “You’re right. You are initially retained as a consultant. deposition. that does not mean you should not be paid for the work already done. . If the retaining party is relentlessly slow. or a member of a corporation or group practice. k. If you know when your vacation is. moreover.” Make it clear that you do not work for the client and that the attorney or insurer (in some civil defense cases) is the responsible party. I recommend asking for this secondary retainer before travel. For unexplained reasons.” d. dunned for appropriately earned fees. or even retain another expert. take a videotaped deposition. m. or trial travel. Because you will be investing a fair amount in the travel costs. This is a standard rate of interest on overdue accounts and an incentive for timely payment. c. e. for review. “portal-to-portal. you may decide to withdraw. Every agreement must have an exit clause such as this one. A case decision that goes against the side retaining you is not grounds for nonpayment. If you are the sole proprietor.
if the attorney is out of the country. alas. identifies the attorney’s understanding that this is not the case. Such attorneys may pay the retainer. or has left the firm. at no cost to the attorney but at lost time and possible income to you. making you ineligible for participation with the other side. SECOND EDITION o. because you did no work. after settling the case. give you no work to do. legal. has handed the case to another attorney. and.128 THE PSYCHIATRIST AS EXPERT WITNESS. s. attorneys may attempt to tie up (legally bind) an expert by retaining him or her on paper to prevent the other side from consulting him or her. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. these events do not weaken the contractual ties with the firm. p. parallel with the forensic consent form in Appendix 1. Making the retainer nonrefundable tends to eliminate such shenanigans. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. Moreover. and ethical incompatibilities. r. some experts simply submit additional invoices. When this retainer is depleted. On rare occasions. . for example. The retainer is not only a means of establishing the contract but also an actual advance against expenses. You are here agreeing to accept signature from a different attorney or a paralegal. You have been sandbagged. The wording here. q. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. ask for their retainer back. others ask for a second retainer (see also Appendix 3 in this volume).
Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. LARRY H. the hourly 129 . Clinical and Forensic Psychiatry (Address) (Date) Re: (Case) Dear (Attorney): This will confirm our agreement regarding my providing psychiatric consulting services with regard to the above-referenced matter. I may require an additional retainer. STRASBURGER. psychiatric interview or evaluation. Any credit balance remaining will be refunded upon the termination of my services. if it appears that substantial services are yet to be rendered. Psychiatric services may include an initial consultation. If travel from my office is necessary to perform any of these services. consultation with counsel. It is understood and agreed that timely payment for my service and expenses will be solely the responsibility of the attorney and is in no way contingent upon the outcome of any litigation or settlement. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. This retainer will constitute a credit balance until exhausted. Thereafter. review of records. M. and report preparation.D. interviews with family members or other persons.
setting forth the nature of the services rendered since the prior billing. Diplomate. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. photocopying. compensation for my time in giving testimony shall be as follows: I shall be compensated at the rate of $ per half-day (4 hours or any part thereof ) or $ per full day (in excess of 4 hours). no refund of the retainer deposit will be made. including secretarial service. court order. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Larry H. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. If the foregoing fee basis meets with your approval. Strasburger. as prescribed by statute. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. and all travel expenses will be reimbursed. American Board of Psychiatry and Neurology Diplomate. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. court rule. Nor shall such failure relieve your obligation to have on deposit. I will send you a monthly statement. expert or otherwise. etc. long-distance telephone calls. Sincerely. messenger services. SECOND EDITION rates will apply to portal-to-portal travel time. Any excess over the retainer balance is due upon receipt.D. along with a listing of out-of-pocket expenses. please so indicate by signing this letter and returning it to me with your check for the retainer. All travel shall be by first-class conveyance. postage. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . the retainer discussed above. Please keep a copy of this letter for your records. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation.130 THE PSYCHIATRIST AS EXPERT WITNESS. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. prior to my testimony. Time spent in preparing for testimony shall be billed at the hourly rate specified above. For depositions and court appearances requiring travel beyond the Boston area I shall be compensated at the rate of $ per calendar day plus all expenses. literature research. M.
this has many useful tips on trial demeanor and related issues. All. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. National Institute for Trial Advocacy. MA. provide at least some information useful for the psychiatric expert. however. Falmouth. 2007 Babitsky S. SEAK. South Bend. not just psychiatry. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. The Psychiatrist in Court: A Survival Guide. 1997 (Though aimed at attorneys. MA. Falmouth. Inevitably. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. Falmouth. 1997 Babitsky S. IN. Babitsky S. 2005 Babitsky S.) Binder RL: Liability for the psychiatric expert witness. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. Falmouth. 2003 Babitsky S. SEAK. SEAK. SEAK. their quality is variable. 2002 131 . MA. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. as well as those found in the companion volume. These sources are meant to supplement those provided at the ends of the chapters in this book. MA. Falmouth. SEAK. MA. Am J Psychiatry 159:1819–1825. MA. Mangraviti JJ: How to Become a Dangerous Expert Witness. SEAK.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. 2008 Ball D: Theater Tips and Strategies for Jury Trials. 2002 Babitsky S. Falmouth.
2008 Rogers R. Glenwood Springs. 2007. Williams & Wilkins. 2007 (Focuses specifically on the testimony phase of expert work. Mechanicsburg. Horsham. Santa Ana. New York. Mulligan WG. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. American Psychiatric Publishing. 2nd Edition. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Tageh Press. Covise LL. J Am Acad Psychiatry Law 29:313–318. DC. 3rd Edition. 1993 Dattilio FM. DC. Baltimore. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington. NJ. useful for checking credentials. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. Analytic Press. PA. CO. at a more advanced level.) Gutheil TG. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. Diamond.) Gutheil TG. 2001 Isele WP: Under Oath: Tips for Testifying. New York. 2002 (This is designed as the successor book to the present one. MA. in Learning Forensic Assessment.132 THE PSYCHIATRIST AS EXPERT WITNESS. Guilford Press. McClure Company. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. 1908 (Purely for antiquarians and those interested in a classic from the last century. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. 2006 Feder HA: Succeeding as an Expert Witness. Lippincott. Springer. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. Wiley Law. Danvers. PA. J Am Acad Psychiatry Law 34:482–491. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. Oxford University Press. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. Edited by Jackson R. Routledge/Taylor & Francis. American Psychological Association.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. New York. Simon RI. New York. 2003 . et al: Expert Witnesses: Direct and Cross Examination. James Publishing. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. Hillsdale. 1995 Kwartner PP.) Dattilio FM. LRP Publications. Pennsylvania Bar Institute. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. New York. MD. 1993 Gutheil TG. LRP Publications. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Commons ML. Adams KM. New York. CA. 1994 Rabinoff MA. pp 565– 588 McHale MJ. Washington.
Beth Israel-Deaconess Medical Center. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. publishing a vast range of information and offering excellent training courses. Section of Litigation. A compendium of sources.com/forensic/f_psych. WW Norton. and postings. with multiple resources. SEAK. New York. http://pipatl. Harvard Medical School. MA. American Psychiatric Press. NJ. VA. Erlbaum. American Psychiatric Press. DC. http://www.) Simon RI.org: Web site of the Program in Psychiatry and the Law.reidpsychiatry. 2001 . http://www. Wiley.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. DC.com: Web site of author’s colleague HJ Bursztajn. Washington. 1997 Younger I: The Art of Cross Examination. 2004 (Study guide available since 2006. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness.org: The main Web site for the American Academy of Psychiatry and the Law. Lightfoot. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation.SEAK. 2nd Edition. and links. Mahwah. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. American Bar Association. 1993 Other Media http://www. Shuman D: Clinical Manual of Psychiatry and Law. articles. discussions. Kochansky J: The Complete Psychiatric Examination (videotape). New York.com: A resource-rich site with articles. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. J Am Acad Psychiatry Law 35:346–349.aapl. Anderson RM: Mastering Expert Testimony. 2007 Tsushima WT. MD. Washington. All experts should join.com: A host of resources by two top attorneys. and links. American Psychiatric Press. DC. Falmouth. the national forensic psychiatric organization.html: Another multiple resource site. http://forensic-psych. Gutheil TG. Washington. Gaynor Publishing. 2003 Simon RI. Washington. links. DC. 1976 Zobel HB. http://tncrimlaw. Disclosure: This author is a founder.
This page intentionally left blank .
consult your retaining attorney. two or more lawyers. which will live on in perpetuity (i. or tradition. such as relatives or executors. the criteria for competence to make a will and for competence to stand trial are quite different. usually derived from statutes. lab results. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. Competence The capacity or ability to deal with a certain task. In case of ambiguity. for example.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. and so on. it is usually “court-tested. that is simply plugged in to the appropriate place. in the context of discovery. in which the witness. it has been accepted in actual cases that validate its use.” that is. Decedent The person related to the case who has died. Instead. the practical and relevant definitions are provided. 135 .. on mainframes) and may be used in attempts to impeach the expert at trial. it may consist of records and documents. Thus in a suicide malpractice case.” it is always “competence for what?” The criteria for the different competencies are often distinct. there is no generic “competence. the person who committed suicide is the “plaintiff’s decedent. It is not derived from the facts of the specific case at hand. Competence is decision-specific and usually based on criteria. the plaintiff is the (live) person bringing the suit. interview data.e. legal documents such as depositions and interrogatories. In reality the actual deposition is the transcript of the deposition. Boilerplate Standardized legal language. case law. Database This author’s term for the totality of material that the expert has reviewed to form the opinion.” Deposition Usually believed to be the actual ceremony.
disability.g. IME (independent medical examination) An important part of the discovery process in malpractice. may be used as well. the fetus in an abortion decision). since the goal of the process appears actually to be a decision.. Novice experts see this as a misnomer. if so. this limitation constrains the data gathering and the conclusions that may be drawn from the database. thus decision maker rather than fact finder. Fact finder Practically speaking. but a psychiatrist.. in which information is gathered by the attorneys in order to prepare the case. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. “Hired gun” A term. The role may include representing an unrepresented party (e.g. interrogatories. or an attorney-psychiatrist team. the judge(s) and/or jury. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. The IME may be resisted by some attorneys. and other medical contexts not limited to psychiatry.. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. borrowed from western and noir fiction and film. The GAL is usually an attorney.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. See also “Trial by ambush. less ordinary procedures might include covert surveillance of a suspected malingerer.” Discovery That early phase of litigation. investigating in the field for the court to determine the situation leading to the proceeding (e. use of a private investigator to obtain information. and the like. . usually exchanged between opposing attorneys to alert them to your projected opinion. and various motions accomplish some of this phase. says what the attorney wants said rather than objective truth). challenging the party moving for a particular result.136 THE PSYCHIATRIST AS EXPERT WITNESS. The GAL may be thought of as a kind of utility infielder for the court. to visit a nursing home where resides a person whose competence is being challenged) and other duties. Finding See “Opinion. Depositions. in “trial by ambush” jurisdictions this step is skipped. but this is the established term. after the civil or criminal matter is set in motion.e.
Like other sources of bias. but without actually retaining. experts should review these carefully for accuracy as to their opinions. and the like. elaborate dinners and entertainments. Negligence In a medicolegal context.” In practical terms. One of the most challenging assessments in all of forensic psychiatry.” Nonsexual seduction A metaphoric term for various ways in which a retaining (or would-be retaining) attorney attempts to woo (influence) an expert to see the case from that attorney’s viewpoint. the oath is a place of safety to which. the whole truth is often supplanted by “the admissible truth. The “seduction” may involve flattery. its influence should be resisted by the expert. and nothing but the truth. promises of much future work if the opinion in the present case is favorable. In a practical sense. The expert offers an opinion derived from the database and training and experience. retreat to the oath. the witnesses are to testify in court only with testimony that they can swear to. There are several . Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. these are prepared jointly by attorney and expert. when confusion sets in. and let the chips fall where they may. because variations from these answers at trial will be used actively in attempted impeachment. disliked by almost all parties in a case as well as the general public. In addition. Opinion The final phase. Interrogatories A set of formal. the expert. the whole truth.Glossary 137 Insanity The legal concept whereby a person who did an otherwise criminal act is yet nonculpable because of criteria-specific impairments caused by mental illness or organicity. falling below the standard of care in the care rendered in the instant case. “Phantom expert” An unethical ploy by some attorneys that invokes the expert’s name and/or reputation as a supposedly retained witness to intimidate or persuade the other side to drop or settle the case.” of the expert’s efforts. See also “Standard of care. the “bottom line. tell the narrow truth. governed by legal criteria that vary by jurisdiction. Of course. often stereotyped questions put to each side of a civil case by the opposing side to develop answers under oath as a part of discovery. sometimes without even informing. the court makes the finding that defines the outcome of the case. the expert can retreat when in doubt about what is going on or where the inquiry is going. and widely misunderstood by many of those. the insanity evaluation is retrospective.
Unlike confidentiality. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. Sequester The separation of witnesses. it varies by jurisdiction but the official statutory language is something like this: “The standard of care is that care delivered by the average competent (prudent) practitioner of the same specialty under like circumstances and according to the practice at the time of the events in question. The expert should be familiar with the relevant local standard and its definition. 2001: “The Phantom Expert.” An expert testifying about a case must be familiar with the relevant standard.” in suggested readings. thus an attorney or an expert might perform a relevant duty for free.138 THE PSYCHIATRIST AS EXPERT WITNESS.” “reasonable psychological certainty. Several jurisdictional variants include “more likely than not. “get the money up front.” Though most attorneys are responsible. . SECOND EDITION variations on this ploy. Privilege A legal concept that holds that the patient (or examinee) has certain rights to bar statements or testimony from appearing in legal or quasilegal proceedings such as courts. hearings. which broadly applies to information that should not be shared with others in many contexts. to prevent the experts from hearing other testimony. by excluding them from the courtroom. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. particularly experts.” “51% certainty. privilege is narrowly construed as applying in legal or quasi-legal contexts only. Appendix 4. this term usually refers to service without payment. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee.” and so on.” which the expert must also know. but they cannot by themselves reform the exploitative personality.” “reasonable medical (or psychological) probability. See Gutheil et al. and the like. the origin of the frequently invoked mantra. a few find ways not to pay you what they owe. the standard is usually national but may be local—the “locality rule. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. Pro bono Short for pro bono publico (for the public’s good). administrative law procedures.
Because the usual duty of clinicians is to the patient alone. (See also “Opinion.Glossary 139 Stipulate To concede or agree to a challenged issue. competent.”) . Turndown rate The ratio of cases that are. Regents of the University of California) in which the clinician is held liable for the actions of his or her patient (usually acts of violence). not as a valid method of determining one’s standards of acceptance. insane. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. depositions. but the plaintiff has a thin or “eggshell” skull and is severely injured. accepted as meritorious versus those rejected as invalid. such as whether a witness should be accepted as an expert for the court. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. these cases. after review. “Trial by ambush” A description of the rule in some jurisdictions whereby the name and opinion of an expert are not disclosed before the actual trial. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. not those that come in for review. a blow that would ordinarily not be expected to cause harm.” Experts should refrain from stating the ultimate issue in their testimony. are sometimes referred to as “third-party cases. etc. Tarasoff v. and expert disclosures (see “Disclosure”) inform the other side in advance. Among other goals such as saving time. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. In the majority of situations. guilty. The expert proffers an opinion.” or “duty to warn third-party cases. usually based on criteria. The expert has control only over those accepted or rejected. but the fact finder renders the finding that embodies the “ultimate issue. This rate should be seen as a rough guide.” Jurisdictions vary widely as to the applicability of this principle. Ultimate issue The final outcome of the legal process: negligent. The image is that of a defendant giving a trivial blow to the head of the plaintiff. discovery proceedings such as interrogatories. which involve a victim in addition to the treater and patient.
This may apply to certain communications between expert and retaining attorney. Work product A designation of privacy for material that is part of the attorney’s trial strategy. SECOND EDITION Voir dire An expression from the French. in the present context. There are a number of possible causes. to say” but more relevantly. evasive testimony designed to avoid answering a question directly or at all. work product occupies a special category of privilege and is usually not discoverable. Chapter 4 (reference 11). discursive. “The Problem of Evasive Testimony” in Suggested Readings. literally “to see.140 THE PSYCHIATRIST AS EXPERT WITNESS. See Gutheil 2007. . a subexamination before or during the trial in which the opposing side attempts to get a sense of what the expert plans to give as testimony. the purpose is to allow preparation of cross-examination or rebuttal. Waffling An expert’s rambling.
8. 59–60 Advances minimum fee. 30–32 misunderstanding of clinical issues. 18 Billable time. 104 Advocate for truth. 47–48 depositions. 44. 106 Beepers at trial. 4. 17 problems of loyalty and identification. 26–28. 61 retainers. 121 American Academy of Psychiatry and the Law (AAPL). 112 first class. 80 Body language.Index Accessibility airplanes. 115 courtroom. 32. 82–83 Announcement of forensic practice. 105–106 Analogies and metaphors. Dress and appearance Attorneys communication with opposing attorneys. See Ethics informing of availability as forensic expert. 7. 115 airline guides. 116 Alcoholic beverages. 37–38 Ambivalence. 65 fighting at depositions. 105–106 American Board of Forensic Examiners. 74 Accuracy. 16 work product privilege. 16 meeting with before deposition.” 106 Audiotaped interviews. 37 Alterations ethical. 4. 52. 70 “Attorneys’ Guide to Experts. 15 Agency relationship. 82 of reports. 113 Bipolar disorder. 100–101 Alternative scenarios. apparent. 24–29 social relationships with. 87–88 Admissions. ethical model. 70 merit of retaining attorney. 9 nonsexual seduction. See also Demeanor 141 . 105–106 loyalty to retaining attorney. 100 of expert opinion. 68 honesty of. 68–69 Attire at trial. 35 Background of expert. 4–5. 16–18. 60 Addressing judge at end of testimony. 82 negotiations with retaining attorney. 16 treater bias. 4–5. 63 Blackboard illustrations at trial. 106 American Psychiatric Association (APA). 115 Alarm clocks. 49. 19 hindsight bias. 52. use of. 14 Adversarial context. consulting with retaining attorney during. 77 Bias. See Clothing. 115 meals. 49. 105 Assumptions. 74. xiii. 25 Beat the Press (Fulton and Guyant). 78. 23–24 Air travel. 62 needed for forensic functioning. 117 “Alibi” issues. 45. 3–4 Advertising.
SECOND EDITION Complaint. 81 Communication with opposing attorneys. 44 nonconfidentiality warnings. how to handle in written reports. 95 Court reporters. 33–34 merit of attorney. 28 Correction of answers at depositions. See also Video depositions gazing into the lens. 70–71. example of outline. 103–108 Camera. 14 criminal responsibility cases. 82 Clothing packing for travel. 69 Concentration at depositions. 137 report. 40 Child custody cases. 19 Capital criminal cases. 99–100 Consent Form for Forensic Examination. 23 Clinical material. 61. 48–49. 107 Brokering a case when unable to handle it personally. 30 Causation. 30 validity of case. 82 Breaks and recesses depositions. 61 trial. 32. 48–49 involving the insanity defense. 108 Browbeating by retaining attorneys. 30–32 “nothing to go on” problem. 65. 113–115 trial appearance. 38 Conflict of interest. 14 Carry-on luggage. money. 77 Change of opinion. 86–87 Cross-examination. 33 scheduling. 29–40 documents. 17. questions about. 24. 32 Building a practice. 83 Courtrooms. 34 misunderstood by attorney. 13–14. or data. 83 breaks and recesses during. 34 Compound questions at depositions. 97 Case review. 7–8. 66 Concessions at depositions. 85–86 code language between attorney and expert. legal. 4. 39–40 Cellular telephones. or experts. xiii. 18–19. 113–114 Case name or citation in written report. 71 Candor. 65–66 Confidentiality breaches as basis for suit. 62. 82 Child abuse issues.142 THE PSYCHIATRIST AS EXPERT WITNESS. 118 Criminal cases capital cases. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 86 Borderline personality disorder (BPD). 116 Coaching. litigants. letters to. 58–59 avoidance by attorney. 99. review of. 77. 85–86 Brokerage organizations for expert witnesses. See Attorneys Countertransference. 33–34 threshold question. 100 Consultation services. 81 delaying tactics. 5. 4 Class action cases. 135 . 73–79. 74 Code language between attorney and expert. 59–60. 77 unpacking at hotel. 33 The court. 28–29 Contingent fees. 64–65 Cough drops or throat lozenges at trial. 116–117 metal detectors at. 118 Counsel. 16. 25 Conflicting stories from parties in case. 101–102 Crises while testifying at trial. 121–123 Constraints on time. 47–48 Competence issues.
79–80 restructuring. 77–79 Departure from courtroom. 68 fighting by attorneys at. 4–5. 135. 69–70 videotaping of. 29 Defendant. 34 stenographers in. 85 Dangerous examinees. See Parties in case Demeanor cross-examination. 38 of experts at depositions. Written documentation Doing no harm. review of.Index demeanor during. Privilege Discovery. 116 Drinking. 61 compound questions or answers. 68–69 breaks and recesses during. Records leaving behind after trial. 59 limits of expertise. 66–67 demeanor of deponent expert. 85 quotes. 85 reasons for. 26 pauses before answering. over-the-counter. 69 Direct examination. 34. 59–60. 73 use during trial. 64 language/word choice. 64 opinions and their bases. 65 correction of answer. 66 concessions. 80–82 leading questions. 47 nonverbal responses. 64–65 curious questions. 135. 84 pauses before answering. vast amounts of now stored online. 75 Decision to take case. 114 . 59 past. 80–82 of examinees during interviews. 91–92 privileged information. See Privilege Documents. See Records. 58–60 inappropriate questions. 74 Disclosure issues. 97–98 Daubert challenge. 76–77 written documentation to give listing of. 62–63 reviewing. 68 treatises. 57–72. 88 trial preparation. 117 Drugs. See also Confidentiality. 135 admissions in. 58–60 goals of opposing attorney. 8 Double billing. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 57–58 nondiscoverable material. 83 trial. 64 priority. 64. 34 assessing. 60 malpractice suits. See also Interviews. 58–70. See also Depositions interrogatories. 70 “gerrymandering” clinical data. 64 objections. Reports. 68 final preparation. questions about. 64–65 later evidence affecting opinion given at deposition. 65–66 consulting with retaining attorney during. 63 goals of expert being deposed. 5–6. 31 Database. 135. 68 of experts at trial. 65 questions and answers. 113–115 trial. 87–88 Depositions. 61. 66–67 locking in/limiting expert’s testimony. 115 access to courtroom. 113 Dress and appearance packing for travel. 59–60 assumptions. 66–67 143 interruptions. 77 unpacking at hotel. 83–86 “yes” or “no” questions. 92 Disabled individuals access to airplanes. 62–63 concentration during.
24 Entrance of judge. 113 contact with opposing attorneys. 61. 112 Failure of retaining attorney to pay fee. 36 “False memory” cases. 107 new facts at trial. 15 remaining neutral. 80 Fabrics. See Countertransference Forensic practice. deposition and trial. 8 Hearsay. doing none. 13–14. See also Hired guns definition. 125–128 Gestures at trial. 14–15 Etiquette at trial. 60 False allegations. 7–8. 38. principles of. 96 Harm. 2 Forms detailed fee agreement. 113 Fitness as expert. 6. 136 spotting the other side’s. 1 functions. 25 Flashlight. importance. for travel. 82 nonconfidentiality warnings. 115 Feedback. 5. 88 Fees.144 THE PSYCHIATRIST AS EXPERT WITNESS. See also Written documentation Forensics. 33 oaths. sample. litigants. xiii–xiv evidence in. 26–28 detailed fee agreement. See Meals Emotional injury cases. 61. 28. sample. 52–55 History of expert. 15 Honesty. sample. or experts. 28 Fairness. 28. scholars in. 95–96. 67 marketing. 38 “nothing to go on” problem. See also Conflict of interest advocate for truth model. 47–48 cross-examination. 37 Eye contact at trial. ethical model. 87–88 Evidence. 16 marketing a forensic practice. always soliciting. See Fees. 67 Expenses. 1–3 Experts honesty of. 112–113. 78 Global requests. 17 special expertise of. staying with. 50–51 interviews. of sexual misconduct. See Air travel Food. 80 Flying. 18–19 honest advocate model. 82 Hotels. 15 altering reports. 75–79. 115–116 Humility factor. principles of. See also Ethics of attorneys. 25 External consistency of story. 129–130 standard fee agreement. 6 High-profile cases. 28. 28. See Meals Forensic countertransference. 9 Humor. 15 social relationships with attorneys. 100–101 billing. 13–21. Reimbursement for travel Expert witnesses. 125–128 travel costs. 15 loyalty to retaining attorney. 115 Flip charts at trial. 103–108 Forensic reports. 44. 62 Hired guns. 129–130 standard fee agreement. 44 . sample. SECOND EDITION Family or friends. issuing. 51–52 Hindsight bias. 49–50 Employment relationship. 49–51 examples. 32 Good writing. 30–32 of experts. 25 Honest advocate. 16 turndown rates. 75 Ethics. 78 Eating.
45 records. 39 Interviews. 36 Interrogatories. 106 Letters to attorneys. 34–35 plausibility of case. 112 Meals airplane food. suspending. 119 Materials. 112 Judges addressing. 75 respect for. 34 depositions. 95 Likelihood principle. 106 listings. 45–46. 87–88 dismissal by. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 84 Leaving courtroom. 137 Insurance challenges. 35 order of. 75 informing of availability as forensic expert. 115 during trial. 79.Index Identification with retaining attorney. importance of. 36 nonconfidentiality warnings. 38 emotional injury cases. 16. 46–48 social service history. 36 internal consistency of story. level of scrutiny. 99. 83 testimony before. 47 elements of malpractice. 86. 37–38 criminal responsibility cases. 57–58. See Attorneys Leading questions on crossexamination. 98 145 Laptops. 105 ethics. 97 to the court. 37 interference. 35 priority. 78 Jargon. 49. 107 lecturing. 34 . 18–19. 2 entrance. review of. 103–108 announcement of practice. for travel. 105 Judgment. 115 Lawyers. 47 standard of care. 36 Internal consistency of story. 37 alternative scenario. 53. 7 Listings as a marketing tool. 87–88 Lecturing as marketing tool. 45 locality rules. 106 publishing/writing. 51–52 Medical records. pros and cons. 37. 52 Malpractice suits. 34–35 plaintiff. 35 Involuntary gestures at trial. 35 retention of records. 116–117 Media coverage and cases. 107 Interference of attorneys during interviews. 18 Integrity. 45 Juries. 49–50 external consistency of story. See Hotels Loyalty to retaining attorney. 6–7. 43–48 creating timelines for. 49 demeanor of examinee. 45 Lodgings. 106 Locality rules for standard of care. 107 strategies. 91–92 recording. 79–80 Jurisdiction-specific language. 38 note taking. 36 presence of attorney. 137 Intervening causes. 16 Insanity defense in criminal cases. 82 Jet Smart (Fairchild). 138 Marketing a forensic practice. 40 videotaping or recording. 48–49. 86 Malingering. 6 entrance of. 34–38 “alibi” issues. 106 specialization.
30 Occasions. 65. 114. 5. 24–25 timing and scheduling. 45. 91–92 Privilege. 24 decision to take case. See Emotional injury cases Physicians’ Desk Reference (PDR). 57–58 Objectivity. 52–55 contact with. 91–93 Precautions. See also Marketing a forensic practice New facts at trial. 36 Politeness. 34–35 Patience. 82 Mitigation of damages. 112 Packing for travel. 81 Postreport negotiations. use of. unfailing. not compromising. consulting with retaining attorney at. See Trial preparation Prescription medications. 13–14. 137 depositions. goals of.146 THE PSYCHIATRIST AS EXPERT WITNESS. 40. 74 Prior testimony by expert. 57–58 trial. 71 Oaths. 137 Negotiations with retaining attorney. See also Web sites storage of past depositions. 4–5. 100–101 Posttraumatic stress disorder. 82–83 Microphone use at trial. 26 Opposing attorney. 104. questions of. 25 initial contact. 70 Medication issues as basis for suit. 17–18. 113–115 Parties in case case name or citation in written report. 66. 49–51 Practice pointers. 25–26 Priorities. writing for. 16–18 clinical and forensic issues. 38 Nonsexual seduction. 44 Melatonin. 80 Misunderstanding of clinical issues by attorney. 85 depositions. SECOND EDITION Online. 8 Pens and pencils at trial. 15 Objections depositions. 138. 26–28 fitness as expert. 115 Preexisting illnesses or conditions. effect of. 24 request of retaining attorney. 49–51 Morality. 47–48 plaintiff interviews. 16. 117 Metal detectors at courthouses. 68 Pauses before answering cross-examination. 15. 106 Negligence. 25 bias. 24–29 background of expert. 88 The Packing Book (Gilford). 26–28 Networking. 97 . 77 Personal injury cases. 47 during interviews. 117 Pretrial conferences. 86 Nonconfidentiality warnings. while traveling. See also Confidentiality deposition. 67 National Forensic Center. 82 interrogatories. 14. 39 vulnerability of plaintiff (“thin skull”). 65 work product privilege. 54. 137 Note taking importance of. 82. 118 Metaphors and analogies. 97 communication with opposing party. 50 Preliminary reports. 47–48 Outcome of case. 35. 97 Preparation for trial. 64 Peer review for testimony. 74. 29 fees. 58–60 Opposing expert witnesses. 64 interrogatories. See Parties in case Plausibility of case. 77 keeping notes. 69 Plaintiff.
25 Reasonable medical certainty. importance of. 34 malpractice cases. 107. 66 Simon. negotiations with. 46 criminal responsibility cases. 40 Returning calls. 112 Reports. suggested.Index Pro bono work. Robert I. 51–52 Quoted passages. 38–39. See also Packing for travel Supplementary reports. 40 social service histories. staying with. 26–28. See Negotiations with retaining attorney Retention of records. 47 Socratic method. 33. 47 Referrals. 3. 17–18 Self-serving behavior. nonsexual. 99 Surprised expert. 5–6. 79. 113–114. 75 Sexual misconduct cases. 31–32. 34 retention of. obtaining in advance. 70 Skepticism. power of. 108 Roles of expert. 6 Specialization. 85 Readings. See Oaths . 28–29 Running shoes. 25–26 as marketing tool. George. 112–113 Santayana. 18. 100 Recesses. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 138 Rebuttals. 97–98 Supporting data for written reports. 115 Rental cars. 93 Seating at trial. 73–74. 9. See also Court reporters in depositions. maintaining appropriate. 117 Social relationships with attorneys. See Breaks and recesses Recorded interviews. 106 Psychiatric malpractice suits. 79 Stenographers. 15. 83 Retainer. 7. See also Written documentation Reputation of expert. 131–133 travel books. 112 Respect. 48 Sleeping. 138 Professional meetings. 6 Scheduling issues. 92. 9. 91–93 personal conflicts.. 75–76 Seduction. 82. 81 Sworn statements. 138 of witnesses. 108 written documentation. xiv. 131–133 travel books. 24 Publications by expert. 36. 54. reasonable medical certainty. 40 case review. See also Malpractice suits Suitcases. 43–45. 44. 138 Standard of proof. 119 Site visits. 7. level of scrutiny. 53. 6. showing toward juries. review of. review of. response to. 16 Social service history. 112 Reality-testing. 104–106. 113 Relatives. 3 Suicide malpractice cases. 106 Publicity and cases. 49 database of. 68 Storytelling. 82 Silent treatment. traveling with. 49 Sequestration. 6–7. 33–34 CATO model for. 64. 46–48 medical records. 25 Required action. 74 Reimbursement for travel. 97 Rehearsing testimony. 107 Standard of care. 14 147 Retaining attorney. 35 Records. 54 Resources for suggested readings. 45–46. 95–102.
69–70 Treatment recommendations. 37–38 Trial. 74 pitfalls. 73–90 beepers/cellular telephones. 87 . See Crossexamination demeanor at. 80 new facts coming to light. 13. marker board. 85–86 conclusion of questioning. questions about. 77. 115 lodgings. 79–80 timing and scheduling tips. 77 pointers. 116 Testimony at trial. 116–117 microphone use. blackboard. 112–115 sleeping. 73–74 practice sessions. bringing into. 74 presentation. 74. 85. 91–92 seating at. 77 etiquette at. 86–87 cross-examination. See Meals packing. 77 what to bring into court. 112 unpacking. 78–80 Telephones calls during trial breaks. 112 Traveling. 116 Treater. 43–56 criminal responsibility cases. 74. 61. 64 for interviews. 75–76 supplies. 73–74 language/word choice. SECOND EDITION cough drops or throat lozenges. 35 flying. 139 Type of practice expert has. 45–46 Types of cases. 86. 87–88 dress and appearance.148 THE PSYCHIATRIST AS EXPERT WITNESS. 80. 113 examinees. 82. 55. 77 breaks and recesses during. 60. versus expert. 81–82 priority. 77 courtroom. effect on standard of care. 80 language/word choice. 108 wake-up calls. 74 Teaching role. effect of. 77 returning calls. 112 Traumas. 35 keeping track of. 112 Travel expenses. 92. 118 Time creating timelines. 82. 80 humor. importance of. 117–118 testimony. 39–40 Travel books. 79–80. 139 Taxicabs. 49–51 Tarasoff-type cases. 26–28 travel time. 80 pretrial conferences. 44 Throat lozenges or cough drops at trial. 77. 78 illustrations. 117–118 Trial preparation. 86 cellular telephones. 117 time planning. 74 using database during. 51 evaluating. 112–113 travel information. 76–77. 14–15. 118 crises while testifying. 75–79. or flip chart. 28–29 Third-party cases. 34 for depositions. 19. 111–118 billing. 44. 76–77 water. 74 planning. 77–79 departure from courtroom. 25–26 roles of expert. 82–83 lunch during. 74 rehearsing. 113 Travel service. 86 pens and pencils. 74 Truth telling. 115–116 meals. 8. 8–9 Treatises. 48–49 emotional injury cases. Honesty Turning down cases. 87–88 eye contact. See also Ethics. See also Cross-examination prior testimony by expert.
95–102. 140 Written documentation. 97 occasions. 97 principles of good writing. 70. 98–99 postreport negotiations. questions of. 116 Water during air flights. 79. 7 Waffling in answers. 98–99 conflicting stories from parties in case. 74 Voltaire. 96 rebuttals. 108 Work product privilege. Reports case name or citation. 101–102 database listing. 67 Video depositions. 64–65 reports. 97–98 supporting data. 107 Weight to be given to on-site psychiatrist’s observations. 100 criminal case. 97 conclusion. example of outline. 51–52 psychiatric malpractice cases.” 2. 82–83 149 Word-of-mouth referrals. 99–100 constraints on time. how to handle. 100 referrals. money. 115 in courtroom during trial. See also Records. 82 Values. 98 letters to attorneys. misunderstanding by attorney. or data. 70–71 Videotaped interviews. 35 Visual aids. 117 Word choice depositions. 43–48 “Ultimate ethical test. 139 Understanding of clinical issues. 44 White noise. 97 supplementary reports. 99 .Index high-profile cases. 97–98 jurisdiction-specific language. 100–101 preliminary report. 53–54 Wake-up calls. 97 opinion. 100–101 trial preparation.” 18–19 “Ultimate issue. 104–105. 74. 140 examples of. 97–98 headings. 4–5. 77 Web sites. 97 interviews/items reviewed.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.