The Psychiatrist as Expert Witness
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Gutheil. M. Massachusetts
Washington. DC London.D.
Harvard Medical School Boston. England
.The Psychiatrist as Expert Witness
As medical research and practice continue to advance. Food and Drug Administration and the general medical community. Evidence. II. p. Inc. Copyright © 2009 American Psychiatric Publishing. c1998.appi. Includes bibliographical references and index. Inc. Gutheil. ISBN 978-1-58562-342-6 (alk.
. Dr. Forensic psychiatry—United States.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. 1000 Wilson Boulevard Arlington. W740 G984pf 2009] KF8965. VA 22209-3901 www.S. Thomas G. Expert—United States. Expert Testimony. 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. I. therapeutic standards may change. Gutheil. Inc. Forensic Psychiatry. Gutheil has no competing interests to disclose. American Psychiatric Publishing.G8 2009 614′. and routes of administration is accurate at the time of publication and consistent with standards set by the U. Moreover. The psychiatrist as expert witness / Thomas G. specific situations may require a specific therapeutic response not included in this book.. [DNLM: 1. cm. however. Psychiatrist in court. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. For these reasons and because human and mechanical errors sometimes occur. — 2nd ed. 2. Title. Thomas G.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. 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. schedules. and that information concerning drug dosages. Books published by American Psychiatric Publishing. paper) 1. 2.org Library of Congress Cataloging-in-Publication Data Gutheil. Gutheil. Companion to: The psychiatrist in court / Thomas G.
truly the wind beneath my wings. To Shannon.To my children and the hope of the future.
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . . . . . . 5 The Database . . . . . . 10
The Expert’s Ethical Universe. . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
. . . . . . . . . . . . . . . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . 8 The Humility Factor . . . . 6 Reasonable Medical Certainty . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Contents
About the Author . . 4 Confidentiality Warnings .
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
Through more than 250 publications and many lectures and seminars in national and international fora. M.
.D. received the Manfred S. the textbook. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. 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. M. Recipient of every major award in the forensic field. Guttmacher Award as the outstanding contribution to forensic psychiatric literature.. and a Distinguished Life Fellow of the American Psychiatric Association. Harvard Medical School.D.About the Author
Thomas G. Gutheil. he has taught many clinicians about the interfaces between psychiatry and the law. Clinical Handbook of Psychiatry and the Law. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. he has received local and national writing and teaching awards. coauthored with Paul S. Appelbaum. and now in its fourth edition. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry..
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and at the request of past readers of the first edition. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. before experience itself has had the opportunity to provide the most durable and valuable instruction. Such service presents many stresses and equally many satisfactions. and many a practitioner feels the urge to try out this fascinating realm. From another perspective. In addition.Preface to the Second Edition
What This Book Is Meant to Do
Serving as an expert witness involves many paradoxes. 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. 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. it provides tedious stretches of waiting and inactivity. that book is a good place to warm up. 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. expanded definitions of key concepts. As an aid to present readers. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. a model forensic consent form for examination. besides the requisite updating of references and suggested readings. Often the greatest difficulties in this profession occur at the outset. Forensic psychiatry is growing in popularity. if you feel shaky about the basics. xiii
. interspersed with frenzied bursts of action. in fact. additional illustrative examples. other changes in this second edition include: a glossary of useful terms. and cases or principles that I have learned about since the first edition. The Psychiatrist in Court: A Survival Guide. an expanded discussion of bias in testimony. Moreover. 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.
in part because they represent material never covered in other sources. hands-on mentoring and guidance that were not readily available in the past. attempts to provide some of that practical. Best wishes for success in your burgeoning career as an expert witness. but choosing to go. whenever possible. 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.D. I hope you find this approach useful. Gutheil. The more seasoned expert may wish to skim over the more familiar material in the text. Indeed.
. kicking and screaming. the later chapters may yet prove useful. the novice court goer.xiv
THE PSYCHIATRIST AS EXPERT WITNESS. This new updated edition. for such readers. SECOND EDITION
If your early court experience has not been too traumatic. perhaps— dare I say it—interesting and even fun. concrete advice replaces abstract theorizing. M. drawing on developments subsequent to its first version. You who are in that position are also my audience. and informal discussion in a user-friendly tone replaces scholarly discourse. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. you. Thomas G.
and Ms. for permission to use some of his material on writing for court. Hilliard. I especially thank “Dr. Ellen Lewy for absolutely indispensable assistance with the manuscript. and to Ms. Larry Strasburger. Harvard Medical School.Acknowledgments
I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. Harold Bursztajn. Resnick.” James T. Phillip J.
. Candace Love of On-Point Research for valued assistance in compiling resources. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. and Shannon Woolley for their careful review and most helpful critique and comments. to Drs. M. Stephen Behnke. for extremely helpful critique and suggestions and for many years of superb medicolegal advice...D. Esq.
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an expert witness may review a chart filled with other clinicians’ observations 1
. 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. both clinical and nonclinical. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. In the courtroom setting. clinically defined. 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. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. to provide information and understanding relevant to the legal system’s concerns. In this book. the concept of a psychiatric expert witness. that is. knowing a lot about a certain topic and having extensive experience therein. the question “What makes an expert?” seems
to answer itself: expertise makes the expert. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book.CHAPTER 1
Introduction: What Makes an Expert?
AT FIRST GLANCE. the question of what makes an expert witness is more complex. in contrast the expert is entitled by the role to draw conclusions. More narrowly. For example. even if those conclusions are based on others’ observations. is a psychiatrist who uses particular skills.
about matters that are beyond lay knowledge or decision making. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. such as competence or insanity.2
THE PSYCHIATRIST AS EXPERT WITNESS. the court system needs expert witnesses in a burgeoning variety of technical fields. I’d want to be treated by this person because he/she makes sense. What I find bemusing is the fact that. SECOND EDITION
and provide the court with an opinion as to whether the care so recorded was negligent. at times. and so on.. then the judge or jury. Note in regard to the issue of ultimate findings. because what an expert offers is “only” a witness’s opinion.
.” You want someone who will present in a way that the jurors would be inclined to say this. However. Indeed. opinionphrased descriptions rather than conclusory statements: “in my opinion. the jury is free to accept or reject the expert’s testimony in whole or in part. proclaiming their ultimate faith in the jurors themselves. As a rule experts should limit themselves to criteria-driven. not the ultimate finding that a judge or jury decides. from ballistics to the temperature of coffee sold at fast-food franchises.. that is. competence. I believe this person. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. 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.” This issue is discussed further in later sections of this text. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. 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. incompetent. if I had this problem. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians.. For that matter. insanity. I also want someone who has clinical experience and is doing that which he/she is testifying about. are the very same ones who had retained me on a previous case.I do not want someone who [merely] teaches others about it. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. the expert is to educate the retaining attorney. Under this model. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. some questions can only be answered by a specialist. or malingering. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane.
however. Showing pictures of the deceased at communion.
The Adversarial Context
The court operates under a set of basic rules and assumptions that are unique to its functioning.
. went even further by listing the functions of the expert as being to 1) tell the story. and an adversarial atmosphere are problems to be avoided. In one scene. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. and the one often most troubling to clinicians.Introduction: What Makes an Expert?
Another scholar. and throughout this book. Despite his doubts. some points. he has become engrossed in the story. at family functions. The power of storytelling was captured in a movie about the career of Mozart. 4–5)
Other scholars agree that one of the principal functions of the expert is to tell the story. or resolved or otherwise put to therapeutic use. causation. conflict between the parties. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. In this chapter. the emperor is initially resistant to Mozart’s novel music. and so forth would have accomplished this vital storytelling purpose. clinical entities. syndromes. 2) make the fact finder want you to win. 3) make sense out of the law. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. 4) help the fact finder see the facts. oppositionality. (2. a law professor. with Figaro kneeling on stage taking the measurements of his marriage bed. and 5) argue the case (1). surmounted. The emperor leans forward. The foremost of these. and the resulting probabilities. demographics. statistics. pp. consider this scene:
In the movie Amadeus. “Where are the communion pictures?” Pressed for a less cryptic expression. 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. eyes glowing with interest. is the adversarial context. are so essential to this work that I review them in the following discussions. Most clinical work occurs in the context of the alliance. The highly experienced defense attorney who had retained me was heard to mutter at one point. Mozart begins to describe the opening scene of The Marriage of Figaro. although basic.
whether testifying or consulting. memoranda. In medicolegal work. even if it is a compromise (3).. The usual guiding principle in such determinations is “the best interests of the child. Like other consultants. ambivalences may be divided between the two parties in the case rather than felt internally by either. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). 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. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. the retaining attorney or court). SECOND EDITION
Compare how treatment planning might occur in the inpatient setting. they are not case-related documents and therefore are protected from disclosure. in a forensic setting.4
THE PSYCHIATRIST AS EXPERT WITNESS. in the forensic setting. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. This specialized topic is beyond the scope of this book. both of which reside in every case and every patient or litigant. two of the victims of this concept are ambivalence and complexity. for whom am I working? Your answer will clarify your location within the adversarial framework.. you usually do not). as well as the usual lack of a physicianpatient relationship (i. In other words. one loser. For example. I define the term work product to include the notes. files. render highly complex the question of agency. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. Although there may be as many views of the patient as there are team members.
The Prime Question
Any forensic psychiatrist. you work for the consultee (i. Unlike the search for consensus in the clinical setting. Com-
. 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. In the legal context.e.” a mandate that may trump other claims on your agency. you usually work for the patient. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. must first ask the question. the adversarial context is one of the “givens” in the situation. The question of whom you work for also will alert you to major pitfalls of bias. the court situation is a zero-sum game: one winner. and other papers that the attorney generates in the course of litigation. such as child custody evaluations. because that position confers greater neutrality and protection for your efforts. Note for completeness that certain forensic contexts. in the clinical context.e.
your personal attorney can always give you advice on nondiscoverable matters. the forensic perspective almost always extends beyond the individual examinee. and captured as well in the consent form for forensic examination as Appendix 1. convicts. my own or others’ interview notes. The retaining attorney will guide you in this matter.Introduction: What Makes an Expert?
munications from the retaining attorney to the expert are generally discoverable.
One of the immediate issues to confront the expert is the fact that therapy. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. As we will see later. One trenchant reason for this approach is to obtain corroboration or discorroboration. and relevant literature. Therefore. of course. or basis. The issue here is the tension. reports. 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. lest they be exposed prematurely to the other side. legal documents. Warnings are further discussed in later sections about the interview itself. or impression. court-related issues are often matters of public record and public exposure (in open court). we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. fantasy. Although therapy usually transpires within the patient’s self-reported data. with some exceptions. is private and confidential. correspondence. In contrast. litigants. 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.
. suspects. between the “whole truth” and the “admissible truth” (4). defendants. it should. when in doubt. including records. later addressed. The term also suggests that an expert’s opinion rests on a base. Most attorneys know not to include details of their trial strategy in letters to you. 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. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. be carefully documented.
The term database is my own shorthand label for all the relevant materials I may read in the course of a case. with exceptions.
may be forced into limitations on this promise because of countervailing considerations of precedent. which preclude admission of certain kinds of data or evidence in the name of justice. obvious self-contradiction. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. be it moral or monetary.6
THE PSYCHIATRIST AS EXPERT WITNESS. 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. absent clear delusions. but the Socratic method is one of the mainstays of courtroom procedure. — George Santayana
Unlike the treatment context. Because a patient in treatment is willingly coming for help. and the like (4). Once again. or discorroboration
. one is guided by its rules.. and to maintain an appropriately skeptical posture. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. hearsay. and similar signs. though under oath to tell the whole truth. detailed. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. fundamental fairness. corroboration. hearsay-ridden trail by which it comes to the team’s attention.
Malingering and Self-Serving Motivation
Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. In contrast.
The Socratic Method
Although expert testimony has been compared to teaching. This painstaking. SECOND EDITION
Half-recalled memories—of what the patient’s second cousin may have said. 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. do not demand to be heard: answer all the questions and then stand down when dismissed. always seeking out verification. The witness should be guided by the maxim: when entering the courtroom. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. the forensic practitioner is wise to suspect everyone of having some stake in the matter. In practical terms the expert witness. despite the convoluted. Yet the court may be driven by principles of fairness.. prejudice. (3)
Such useful data would likely be ruled inadmissible by the rules of the legal process. experts in court must play by court rules.
Note that there may be some jurisdictional variation on this point. As a general rule. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number.. makes forensic psychiatrists unpopular with their clinical colleagues.Introduction: What Makes an Expert?
for all important facts. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. including forensic psychiatrists. — 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. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys.g. high-profile insanity cases. honest experts should avoid these approaches to
. for example. regardless of its clinical or empirical validity. we are paid by time criteria. forensic work is a sideline to our clinical focus. and leads physicians of all specialties observing. ask about the local variant. sell time. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. Rather. All psychiatrists. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular.
The Hired Gun Problem
The so-called hired gun problem continues to dog the field of expert forensic work. Although some will cry that there are exceptions. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose.
Reasonable Medical Certainty
Doubt is not a very pleasant condition. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. reasonable medical probability. or even reasonable psychological certainty). Other contextual clues about the hired gun are overly candid advertising in legal media (e. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. For most of us. but certainty is absurd. 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.
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. Thus. and ethical incompatibilities with serving as your patient’s expert. 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. If a clearly meritless case is offered to you for review. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. case materials. see reference 5 and the appendix to reference 3). legal. summarized as follows (for more extensive discussion of this point. because these provide a base of financial stability that enables you to turn down cases. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. For various reasons (5–7).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
. 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). “Developing and Marketing a Forensic Practice. and corroborating data. First. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. reasoning. (By the way. SECOND EDITION
finding work.” in this volume). although the clinician is obligated to place the welfare of the patient above other considerations. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. There are complexities in this area that should be addressed. you avoid temptation to skew your opinion. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. there are significant clinical.)
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. and you maintain your ethical compass direction. it is an excellent way to benefit from the teaching of colleagues and to share ideas.
most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. Indeed. 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. Early in my career. in contrast. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best.” 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. the therapeutic alliance. Third. 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. the expert goes in skeptical. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. From this viewpoint. even though this may occur appropriately under legal rules. thus leaving the jury free to vote its “gut.
The Humility Factor
Finally. M. though essential for therapy. constitutes a bias for forensic functioning. as noted in the section on malingering above.Introduction: What Makes an Expert?
the treater gives in court. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8).
. Master forensic psychiatrist Robert Simon. 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. rather than the entire forensic database.” This provocative image should be kept solidly in mind. the treater has usually had only the patient’s reports on which to rely.. treaters called into court may violate the confidentiality of the clinical setting.” Although this last is true in certain respects. whether because of simple ignorance of the above distinctions. not the engine. Attorneys seem to display a curious indifference to these incompatibilities. the wish to avoid paying expert fees that are usually higher than those of treaters. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book.D. Second.
5. J Am Acad Psychiatry Law 33:55–58.org/guidance/ethical_ guidance/expert_witness_guidance. MD. 1992 Appelbaum PS. New York. 2005
2. 1998 Gutheil TG. Lewis Publishers. Am J Psychiatry 154:448–456. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. 4th Edition. British Medical Journal 337 (#7664). Washington. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony.10
THE PSYCHIATRIST AS EXPERT WITNESS. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Gutheil TG. Baltimore.asp. 2003 Strasburger LH. FL. 2006 Catto G: Acting as an expert witness. 2008. 2007 Barsky AE. Accessed August 5. 1997 Gutheil TG. Harv Rev Psychiatry1:4–5. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Baltimore. Gutheil TG: Clinical Handbook of Psychiatry and the Law.
Ackerman MJ. Simon RI: Narcissistic dimensions of expert witness practice. “the admissible truth”: an ethics dilemma for expert witnesses. Lippincott. 1997 Gutheil TG. J Am Acad Psychiatry Law 25:233–247. New York. 2002 Bronstein DA: Law for the Expert Witness. J Am Acad Psychiatry Law 34:14–21. Personal Injury and Other Civil Actions. American Psychiatric Press. White MS. August 2. Williams & Wilkins (Wolters Kluwer). Available at: http://www. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Bull Am Acad Psychiatry Law 20:153–162. 4. Expert’s Quarterly (Winter): 2. DC. Williams & Wilkins. Wiley. Hauser MJ. Testifying and Everything Else You Need to Know. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. et al: The “whole truth” vs. SECOND EDITION
1. J Am Acad Psychiatry Law 31:422–427. 7.
3. MD. Guilford Press.gmc-uk. 2008
. Boca Raton. Kane AW: Psychological Experts in Divorce. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Lippincott. Gould JW: Clinicians in Court: A Guide to Subpoenas. 8. Depositions.
. 3rd Edition. Psychiatric Services 52:1526–1527. 2004 Slovenko R: On the therapist serving as a witness.Introduction: What Makes an Expert?
Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. Hillsdale. 1990 Gutheil TG. Edited by Quen JM. 2001 Quen JM: The psychiatrist as expert witness. Bull Am Acad Psychiatry Law 2:119–132. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. Washington. 2001 Simon RI. Int J Law Psychiatry 13:281–307. American Psychiatric Press. New York. 2005 Simon RI: Psychiatry and Law for Clinicians. DC. Gold LH: Textbook of Forensic Psychiatry. American Psychiatric Press. in The Psychiatrist in the Courtroom. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Analytic Press. 1994. Behavioral Sciences and the Law 7:145–180. pp 233–248 Rogers R. NJ. Bull Am Acad Psychiatry Law 15:217–227. DC. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. 1992 Dietz PE: The forensic psychiatrist of the future. Washington. J Am Acad Psychiatry Law 30:10–13. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Springer Science+Business Media.
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” They may forget that this encounter is not therapy. It is a control easily within the reach of every witness—the lever marked “truth. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons.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. the ethical expert be13
. particularly an empathically attuned one..[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. In this chapter. p. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. First. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.. rather than help.” (1. and its results may harm. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. S-3)
THE EXPERT faces many challenges in forensic work. tend to drift unconsciously into a “therapeutic mode.. their ultimate goals in the legal process. To prevent such inadvertent abuse or exploitation of the examinee. examinees being interviewed by a psychiatrist.
this case might be called a defense case because the actions of the defendants are. In a not-so-ideal situation. If you turn down most cases you get. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. 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. you are friends with one of the defendants). your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care.g.14
THE PSYCHIATRIST AS EXPERT WITNESS. Turndown rates between 10% and 30% are not uncommon. the attorney curses your name. indeed. 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. impugns your ancestors. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. defensible. If you take every case you review. Therefore. scoffs at your qualifications. denounces your integrity. and slams down the telephone. you decide you cannot support the retaining attorney’s position. You pass this information on to your retaining plaintiff’s attorney. understandably. the turndown rate is the percentage of cases in which. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure.. this case is over and has been turned down. For symmetry. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. After settling up any monetary adjustments. who—in the ideal situation—accepts this view. 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?
. either your threshold for validity is too high or you need to meet a better class of attorneys. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. Rather. SECOND EDITION
gins with warnings about the differences between the forensic and clinical interview and.
An ethical test for the expert that occurs early in the process is the case turndown rate. thanks you for your help. that the firm will not be using you as an expert. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. you must consider whether your threshold for case validity may be too low. after reviewing. (Note that even if you cannot support all of the claims proffered in the case. indicates the intention of explaining your information to the client. and states.) For example. The warnings (carefully documented. if necessary.
that is. that position is always acceptable. An author described the special sensitivity to what one can swear to in this way: You are asked. and 2) you answer cross-examination truthfully (see the following discussion).” Your correct answer would be. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. One model holds that once the oath is taken. they do represent cases in which you have elected not to participate. all of which you should turn down. you could receive a number of good cases. Partisan pressures from the adversary are put aside. for example. “White. This model has been called the honest advocate model. “What color is that house over there?” The novice answers. 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.
Ethics and the Oath
Taking the oath at deposition or trial is another ethical threshold. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. only over those you elect to accept. Although these referrals are not strictly turndowns. 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. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. say. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. all of which you might accept. or a number of invalid or meritless cases. for a particular case outcome). it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. and the expert becomes the fully neutral observer and reporter. and so on. you take nothing for granted. “White on this side.”
.” Once under oath. Consequently. Nevertheless. speculate about. the only touchstone is absolute truth as you know it or understand it. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). In forensic practice. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. This model is sometimes called the advocate for truth model. Consequently. guess. inpatient care.The Expert’s Ethical Universe
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.
thus. is misreading the nature of the ethical contract between the two parties.. A pitfall in this area might be called forensic countertransference. or make whatever use of your opinion that may be of service. “First Principles. under the rubric of loyalty.
. is disappointed that your present opinion is unfavorable. As you work closely with your attorney. settle or drop the case. The varying forms of bias are discussed below. this factor would require greater scrutiny of the relationship by the forensic witness. that is not your problem. your opinion and its limitations. The attorney is free to find another expert. Extending this idea. the skeletons in your closet. identification with your retaining attorney (discussed more extensively in ). similarly. First. This difference is significant.g. you may come to like. Recall that the attorney’s goals are winning the case. might extensive socializing with the retaining attorney—or. 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. respect. but the likelihood of identification bias would surely seem to be greater. 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. discussed further in Chapter 3. but two dimensions of the relationship pose potential ethical problems. yours are providing ethical and valid consultation or testimony or both. just what does the expert owe the retaining attorney? Strictly speaking. with whom you have done many a previous case together. and admire him or her. The novice expert who adjusts or bends or twists an opinion away from clinically based validity.16
THE PSYCHIATRIST AS EXPERT WITNESS. committed quality work. You do owe it to your attorney to level with him or her about yourself (e. If the attorney. you do not owe agreement with the attorney’s position or theory of the case. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. SECOND EDITION
Problems of Loyalty and Identification
The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. you owe only serious. out of feelings of being loyal to his or her retaining attorney. 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. and what you can and cannot testify to under oath. this identification may compromise your needed objectivity.” in this volume).
Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. for instance. 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. If you are a victim of child molestation. The situation does reveal some complexity. many expert biases are not detected either by the adversary system or even by the experts themselves. of course. 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. such as overidentification with the judge or the “system. Somewhat idealistically. you should refer the case. The fact that the position is more or less neutral does not. Similarly. you are expected to manage your countertransference toward the examinee or the examinee’s actions. 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. as a clinician. 337). and may add blandishments such as dinners at expensive restaurants and the like.” Note also that. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. you may feel unable to examine objectively a child molester. There is no shame in this. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. 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. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. In this model the attorney lavishes praise on the expert. if the countertransference is unmanageable. bias can be exceedingly subtle. promises many future retentions. an attorney. of course. The
. although not common in practice. p. This neutral position is highly desirable for that reason. this effort may be termed nonsexual seduction.The Expert’s Ethical Universe
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. (p. 33)
However. eliminate other subtler biasing factors. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case.
and 3) directly addressing bias on direct examination. the dual role should be avoided. On direct examination. when you approach a case from a particular perspective or school of psychiatry. and so on. SECOND EDITION
topic is covered more extensively elsewhere (6. in an insurance challenge. During the cross-examination. or. Money is the most problematic bias. “I do not believe that every patient who commits suicide is mentally ill or insane by the relevant criteria. many self-explanatory. there are numerous potential biases covered in the article. but I believe in this case the decedent was sufficiently mentally ill to meet criteria for unsound mind in this jurisdiction” (8. in that to be diverted from necessary objectivity by the fee is to become a venal hired gun. spontaneous and unrehearsed. when a case hits too close to home. but a summary listing of possible biases may illustrate the point. since almost all litigation (except possibly contracts) occurs after the fact. the advocacy bias. A competent attorney and expert will have prepared for this stage of the proceedings by reviewing the questions that the attorney plans to ask. your opinion. “I am biased in favor of the belief that everyone is an autonomous agent. also threaten objectivity. the holes and limits of your side of this case will
. 73–74). 2) resisting attempts to compensate for possible bias (since attempts to correct one’s own biases may constitute disingenuousness). is a universal pitfall in forensic work.18
The Ultimate Ethical Test
The ultimate test of expert witness integrity is honesty under cross-examination. anticipating relevant cross-examination. where the expert advocates for the side of the case rather than for his or her own opinion. an expert might respond on direct. the lawyer will take you through your credentials. what you have reviewed. The potential hindsight bias—the belief that an outcome is more likely because it has already occurred—bedevils all forensic work.
Gutheil and Simon (6). yes.
likely be explored. and identification as above.The Expert’s Ethical Universe
TABLE 2–1. 261. the limits of your conclusions. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. The less admirable experts. and the limits of your testimony. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. In the process of cross-examination. experts can be separated into two categories. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. Finally. Therefore. while servants beat him with knotted towels. if appropriately asked by the other side. 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. defend those opinions passionately and fiercely on cross-examination. and the hypothetical situations under which their conclusions would be different.
. the limits of your data. Such candor may well enhance their credibility. expert testimony is like that.” Your retaining attorney exerts the pull of retention. the limits of your credentials. none of this information should be a surprise to your retaining attorney. and their testimony is often unconvincing. Again. the true extent of their opinions. the limits of your knowledge. loyalty. the opposing attorney exerts the push of attempted impeachment. 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. having become inappropriately enamored of their opinions rather than of the truth. p. both pull and push must be resisted.
Prof Psychol Prac Res 33:307–309. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. SECOND EDITION
1. Springer Science & Business Media. 2004
4. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. Psychiatric Annals 34:260–270. Miller PM. J Am Acad Psychiatry Law 32:70–75. MD. DC. 2002 Candilis PJ. 2007 Gutheil TG. Weinstock R. Simon RI: Avoiding bias in expert testimony. objectivity and fair compensation. Baker TO: Operator’s Manual for a Witness Chair. seducing and threatening: a pilot study of further attorney pressures on expert witnesses.
5. McKinzey RK: The ethical confrontation of the unethical forensic colleague. pp 33. J Am Acad Psychiatry Law 36:195–200. 1992 Lynett E. Defense Research Institute. WI. 7. Psychiatric Times. 6. 2004 Gutheil TG. 1990 Brodsky SL. J Psychiatry Law 28:449–457. 2002 Gutheil TG. 3. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. 2008 Katz J: The fallacy of the impartial expert. Williams & Wilkins. 1983 Appelbaum PS. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. Gutheil TG: Expert witness perceptions of bias in experts. Gutheil TG: Clinical Handbook of Psychiatry and the Law.
Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 2001 Slovenko R: Discrediting the expert witness on account of bias.20
THE PSYCHIATRIST AS EXPERT WITNESS. Int J Law Psychiatry 13:249–259. 1992
. J Am Acad Psychiatry Law 27:546–553. 39 Gutheil TG. American Psychiatric Publishing. New York. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 36. J Am Acad Psychiatry Law 29:336–339. Bull Am Acad Psychiatry Law 20:141–152. 2001 Miller RD: Professional vs personal ethics: methods for system reform. Milwaukee. 4th Edition. Martinez R: Forensic Ethics and the Expert Witness. 38. 1999 Commons ML. December 2004. Baltimore. Bull Am Acad Psychiatry Law 20:163–177.
8. Washington. Commons ML. 2. Miller PM: Withholding.
Bull Am Acad Psychiatry Law 19:237–248. Hosp Community Psychiatry 44:388–389. 1987 Schultz-Ross RA: Ethics and the expert witness. Leong GG. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. J Am Acad Psychiatry Law 36:167–174. Greenberg SA: The expert witness. 1991
. Prof Psychol Res Prac 34:219–224. 1989 Weinstock R. J Am Acad Psychiatry Law 33:386–389. 2005 Rogers R: Ethical dilemmas in forensic evaluations. the adversarial system and the voice of reason: reconciling impartiality and advocacy. Behavioral Sciences and the Law 5:149–160. 1993 Shuman DW.The Expert’s Ethical Universe
Norko MA: Commentary: compassion at the core of forensic ethics. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. Bull Am Acad Psychiatry Law 17:189–202. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower.
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you may or may not owe a separate form of allegiance to that attorney’s client. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. ineffectual testimony. as when a defendant.
. However. In the forensic relationship. you should—be polite and supportive to your examinee. the patient is your employer. that is usually clear. regardless of what is going on with other experts or treaters. indirectly. considered for examination of competence to stand trial. is being treated in a hospital setting. make recommendations. prescribe. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. That relationship is also a source of certain pitfalls of bias. share a copy of your report with the examinee. or some kind of class action). Your duty is to the person for whom you are working. you still work only for your retaining attorney and. that attorney’s client. you may—indeed. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. When you examine a plaintiff at a defense attorney’s request. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. or perform some other such intervention with him or her. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. discussed in the previous chapter and later in this chapter. that person is the recipient of your opinions. but you are not required to preview your findings. and compromised working relationship. your employer is less clear. treat. forensic work should thus always begin with the question.CHAPTER 3
IN CLINICAL WORK. Although you are usually working for an attorney.
It became clear that the cross-examiner meant my retaining attorney. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert.
The Retaining Attorney’s Request
After the first forensic question. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. this approach is self-defeating. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. Friendly. Instead. the term your attorney will be used to refer to the attorney retaining you as an expert. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. refer to those sources. Smith until he or she invites you to call him or her John or Jane.
Initial Negotiations With the Retaining Attorney
Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. for whom am I working. In this chapter. the topic is extensively discussed in the companion volume.” implying venality and bias. I was asked. on purpose—he chose to characterize as “mine. clinical experience. The Psychiatrist in Court: A Survival Guide. 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-
. If this issue is in question. more likely. informal discussion should be the format. “Have you discussed this with your attorney?” This threw me. This telephone call is far from a mere administrative formality. SECOND EDITION
The issue of not serving as expert when you are the treater is relevant but was noted earlier. though this distinction may be intentionally obscured as a cross-examination tactic. politeness dictates that you call the attorney Mr. or Ms. Watch for this ploy. which—either by accident or. How you communicate with your attorney is important from the outset. and mastery of professional jargon. not your personal counsel. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. This point came up in an actual cross-examination in a distant state.24
THE PSYCHIATRIST AS EXPERT WITNESS.
Note that your special expertise should exist against a backdrop of your general competence in the field. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim.
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.
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. I don’t know a great deal about this specific subject.First Principles
chiatrist actually has some knowledge about. if you cannot or should not take the case. The attorney can then take or leave this arrangement. but I am willing to become familiar with the issue”). Therefore. the hospital. experience. such cases should be reality-tested for the attorney.. board certification. and so on.
Your Fitness as an Expert
Should you. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. This example is fairly obvious. but subtler versions of personal resonance with a case are not uncommon. In general. have you been the defendant in a malpractice suit.g. personally. 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. no matter how unfounded? Do you have a
. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. “Look. the attorney will not have revealed confidential information (the names) to you. as indicated by publication. however baseless? Are you now being investigated by the board of registration for some allegation. For example. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. that is. These issues go beyond mere conflict of interest. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. 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. which is usually (but not always) clear-cut. if your aged mother has just died in a nursing home. I recommend hearing about the broad issues of the case first and only then asking for people’s names. 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.
In too many medical malpractice cases.26
THE PSYCHIATRIST AS EXPERT WITNESS.. knows that it was Smith’s lawyer who was derelict. As is often the case.g. the more words you might have to eat on cross-examination. Second. “Smith failed to plead . credentialing problems in the past. who are the strangers in the courtroom. even if the issues are clinically or forensically totally different. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. the court record chidingly notes. . .. for example. Belatedly surprising your attorney (e. are there cases in which you have testified on behalf of the other side.e. Finally. attorneys are invisible within the court record. . . the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. or have been retained by one side more than the other? Review this with the attorney. 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. in the preceding quote. have taken an opposite position or opinion. they are all corrupt). Similarly. for instance. 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. for the first time while on the witness stand) is a major expert sin. 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. Do your best to address this possibility early.. juvenile offenses.” when everyone. This issue is further discussed later in this chapter.
Time. including the speaker. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. contradicts your present position. the ultimate beneficiaries.
This quote is interesting from several viewpoints. in an economic sense. Fees. SECOND EDITION
history of problems in the military. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. 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. If you write a lot. Thus. unfortunately. a criminal record (no matter how minor). Reviewing your own published work in a particular area is a worthwhile part of your preparation. you realize that the more you write. not for their time and clinical expertise.
Like the judge previously quoted. this usually means that the client has hesitation or resistance about my rates. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). The attorney either takes me up on this offer. is “I am not being paid for my testimony. “So. I also recommend not “nickel and diming. 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. or grasps the point. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. Doctor. grits his or her teeth. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. nit pick. Indeed. only for my time. and hires me anyway. allowing me to refer to a junior colleague. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. Second. Don’t charge for a 90-second telephone call confirming the date of
. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money.” Other witnesses may take this further: “My testimony is not for sale. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. without children bursting in to share their Nintendo triumphs with you). Doctor?” The only appropriate answer. and organizing your forensic assessment is part of the work. or challenge the details. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. meaning no offense. Use timers or check your watch at the start and end of a piece of work and write down the time. but you are made of finer stuff.” Yes. Therapists who are quite capable of taking an extensive. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. attorneys have timers on all their phones and charge by the split second. ideally delivered in a calm tone of voice and not through clenched teeth. since the doctor-patient relationship is not pertinent to the examiner-examinee one. Note also that time spent thinking. same as you.” or “Nothing” (and wait for the attorney to crack. I know. planning. analyzing.” or “I am paid by the hour. whether for psychotherapy or expert witness time. this is a pro bono case for you?”). choose a fee that you would not be embarrassed to state. First. I tactfully suggest that. 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.First Principles
not the forensic context.
I reported him to the Massachusetts Board of Bar Overseers. the good folks on L.. but your consultation must be free of investment in any form in the outcome of the case. How much work or time should you devote to the case? This depends on your schedule. To novice experts. respectively. Then. when you design your own fee agreement. when asked about your fees on the stand. basically consultative services. If you don’t have enough time. in addition.
Roles of the Expert
What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. 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. don’t take on the case. You sell only time. and give the dates to the attorney. some of which never
.e. defaulted on payment) by their first attorney. Urge your attorney to bring up your fees on direct examination to get it out of the way. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. Keep your vacations in mind. I took my first major “stiffer” to court eventually and received some of my money. Perry Mason. you can calmly state them without guilt. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. The attorneys.A. Refuse any other arrangement. ideally. for instance. among others. your fee should never be contingent.28
THE PSYCHIATRIST AS EXPERT WITNESS. 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. the organization in charge of attorneys’ ethical issues. That august body opined that this was not an ethical problem but a business issue or a contract issue. Owen Marshall. You give only testimony. you are charging for time regardless of the outcome of the case. Ethically speaking. or for reading a one-paragraph letter. even if there is). are free to employ contingent fees. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. SECOND EDITION
a deposition. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). failure to pay is reality. of course. 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. at the end of this book. they referred me to small claims court. shame. but in my experience. It should. it is unfair to your attorney. or other conflict.
at some point. 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. rarely. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. defendant. Among other things. your first task might be an evaluation of plaintiff. You may be needed to evaluate a plaintiff (or a defendant. an individual client. 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. As a rule. your attorney. You may provide rebuttal material for use by others. is more accountable.
The Stage of Case Review
Let us assume you have agreed to take the case and that the retaining agreements are in place. The usual next step begins with your receipt of written materials on the case. going to testify. what your skills or knowledge support. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. Will you be expected to testify at trial. Moreover. how free from bias or conflict the situation is—finally ask. working for the attorney or insurer is a far better idea than working for the client alone. often in orange-crate–sized lots. You might advise the attorney on how to cross-examine the other side’s experts or litigants. or is the matter likely not to go to trial? Are you going to be a reporter. that role would be ethically incompatible with the objective testifying role. or will your opinion be used by the attorney to strategize without a report. for that matter). what your time permits. testator. You simply may be a consultant to the attorney on the merits of the case at the outset. In other cases. 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 Final Decision
Putting together everything that you now know—what you charge. or even witness. Which comes first boils down to a matter of individual preference. Do one or the other. nontreatment role is clearer. how you feel about the attorney.First Principles
lead to the courtroom. If you are. someone who has to generate a written report. that is. as a professional. your consultative. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case.
The point is perhaps an obvious one. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. compared with some other behavior. does the attorney have merit? As a rule. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. the next task is clear. the attorney may be employing you in a desperate attempt to clutch at some faint hope. The attorney presented the case to me by telephone.
Is the Case Valid? The Threshold Question
The first question posed to the expert because of the very nature of your consultative role is. though you would not necessarily know this. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. you must ask the question. Scheduling considerations may determine the first task. in relation to which. Regrettably. For example. In any case. However. In reality. the minority are the ones who pose the problems. a tendency to assume you will give the “desired” opinion no matter what the material shows. There is nothing inherently wrong with this desperation. a behavior that certainly did not seem all that threatening. stating that the patient’s dangerousness flowed from his being charged with slashing tires. followed by review of the documentation. 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). you may be the ninth expert the attorney has consulted. SECOND EDITION
Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. attorneys would call you only for ironclad solid cases in which they have every confidence. even in a consultative sense? In the initial telephone call. including by obtaining expert consultation. 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. or a tendency to want to withhold information.30
THE PSYCHIATRIST AS EXPERT WITNESS. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. the emotional pressure of the attorney’s desperation should not alter your objectivity. of course. On perusing
. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. for that matter. his dangerousness was the crucial issue.
Does the Attorney Have Merit?
The clear majority of attorneys are unquestionably competent and ethical. I recommend listening for indexes of venality.
I decided those were near-enough equivalents.” After mulling this over. the attorney wants to be sure you understand the import of certain data.” He wondered if that could be equally well expressed by “areas of competence. you give your conclusions. however. based on the patient’s history of significant violence. In the second. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. then you have to expect the same in the future. in a competence assessment of an elderly woman. If he or she withholds or distorts information or lies to you initially. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. 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).First Principles
the old record. 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. 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. such pressure should be resisted. but I emphasized that he and I needed to be clear about the fact that I would testify
. the malignant category. wants to be certain you took note of a particular record entry or deposition statement. Some attorneys. arguments are the attorney’s attempt to browbeat you into changing your mind. I telephoned the attorney and demanded to know why he had withheld this history. after you have given your verbal report. and the arguments fall into two categories. however.) The second red-flag situation occurs when. For example. the wording in which your opinion is couched and the substantive alteration of your opinion. Another less knowledgeable group of attorneys will be educated by your discussion. A delicate balance must be struck between reasonable flexibility about. In the first. the only safe course is not to work with that attorney. 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. Expert witness work is hard enough without bad faith. faced with this disappointing fact. which happen to be unfavorable to the retaining attorney’s case. I told the attorney that she possessed “islands of competence. the benign category. Most ethical attorneys. based on your review of the database. a document often difficult to unearth but essential to the full evaluation. You cannot afford to embark on a course of work with someone such as this particular attorney. will argue with you at this point. (Note also in this example the value of the previous record. therefore. Obviously. and the result may be your withdrawal from the case. for instance. Somewhat annoyed.
I could not ethically omit it. Since only the final (or courtroom) opinion is determinative. the retaining attorney. an opposing attorney asked me on the stand when I had received various parts of the database. The attorney asked for major cuts or deletions. shape or form whatsoever. moreover. and I accepted. Your request should be global. however. only the final opinion really matters. hung up. and so on.32
THE PSYCHIATRIST AS EXPERT WITNESS. “withholding” important data from the jury. Agreement was struck. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. The negotiating discussion moved into argument. this rationale is especially ill-founded. Volume II. multimillion-dollar will contest. In a variant on this issue. The attorney said he was offended that I should even think he was suggesting omitting something. to “go over” my report. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. I did not recall because I do not keep that kind of record. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. In another case. I told him. wanted. and withdrew from the case. This was trivial. in a high-profile. in fact. and testify to if asked. and did not stop until I said. in any way.
. One attorney nearly drove me mad by releasing dribs and drabs of material. in an extended phone call.” The attorney moved on to other matters. He asked me to use the dates of the depositions I had reviewed. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. tactfully. In yet another case. SECOND EDITION
if asked on cross-examination about the relative small size of those areas— island size. I had prepared a 22-page single-spaced report. It is important to ask for everything from the attorney. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. This suggestion was acceptable. and so on. under the specious rationale that this method would permit seeing the evolution of my opinion. I said I would change nothing. after discussion I accepted that. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. that since I had read it and thought it relevant. the remainder of the opinion. finally. Although delighted with this level of detail. rather than Volume I. inclusion of somewhat negative evidence would show objectivity. even if some material is irrelevant and other parts are inadmissible. regardless of what may be precluded by rules of evidence and discovery. his senior partner wanted to deemphasize the subject by changing some wording. This is the final opinion I am giving here and now. The attorney made a big show of my “concealing” this information.
Referral to another or an additional expert also may be indicated.
. As you go through the documents. First. Forensic countertransference is further discussed in reference 2. long pages of deposition testimony drone on about the exhibit. This problem is a variant of a countertransference issue. He was photographed doing the crime. it is up to you. Second. you are creating a checklist.
Reviewing Cases Critically
When the attorney sends you a crate of records and you review them. In general. because I’ve got nothing. for example. feel free to use it if it suits your own preferences. As you read the complaint. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. after your report. you should consider some important points. look critically for claims. 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. This ethical dilemma arises when the attorney says. if you will. “Look. but you can only imagine it because the actual document has not been provided. 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. check the documents you receive against the cover letter to be sure you have everything you should. even data of dubious validity. I think this guy is probably not insane. My own approach is as follows. facts. However. I have found that attorneys for some reason often fail to send the exhibits to depositions. and connections that can be checked against the primary record data and flag those in some way. directed not toward the patient or examinee but toward the attorney. Either undertaking or turning down such a case is a defensible position. Recall that a plaintiff can claim anything at first.First Principles
The “I’ve Got Nothing” Problem
Although you prefer to work on a case in which your opinion is robustly supported by the database. but I’d like you to do this evaluation on him anyway. 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. a situation sometimes occurs that requires special mention. I find it helpful first to read the complaint so that you know what the basic issues are.” 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. each element of which may be confirmed or disconfirmed by other material in the database.
makes it harder to focus on hot spots of the case or areas of contradiction in the database. however. SECOND EDITION
Second. exert every effort through your attorney to obtain enough time to do an adequate examination. and be prepared to acknowledge this constraint as a limitation on the data. you also may want to review relevant literature on the subject. or whoever is involved in the case (presumably.34
THE PSYCHIATRIST AS EXPERT WITNESS. you may also request that the attorney’s office create the timeline. the depositions or witness reports. The attorneys on either side of the case may limit the interview time available. Note for completeness that some experts like to start by examining the litigant first. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. your interview queries would thus arise directly out of the material. 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.g. no matter how difficult the scheduling might be.
After reading the materials. cold. insanity in a criminal context). you are familiar with basic interview approaches). the witness. advance screening. perhaps by a paralegal. third. the defendant. for example. At this point. If the appropriate amount of time for your examination cannot be obtained. you will want to interview the plaintiff. if you have not already done so. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. A laptop computer for this task may be quite helpful. and selection of a safe environment may be required for examining potentially dangerous examinees. Such an examinee-first approach.
. including your own. Some discretion. accept it as a limitation. This permits. or with only the complaint reviewed. I strongly recommend reading large chunks of material at a single sitting. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up.. then to check the record to determine whether the complaint or issue has any validity. the testator. I read the medical records and clinical material or the equivalent. 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). 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.
Not uncommonly. attempt to put recording devices out of direct sight (although you should obtain on the tapes them-
. The fundamental reasons are as follows: 1. but I strongly recommend opposing their occurrence through your attorney. the absence of this datum must be factored into the opinion. However. 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.” My immediate response. it is certainly beneficial for teaching and for self-review for quality assurance. Note that when you are retained by the defense and wish to examine the plaintiff. alternatively. Examinees commonly play up to the audience or recording device. based on the belief that such an examination can only hurt the case. For example. in one case. Examinees who must travel to see you should.First Principles
If the witness lives locally. Inappropriate interruptions and objections. For a number of circumstances. as a rule. more authentic) responses to your inquiries. 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. inhibit free-ranging inquiry. focusing on making a recording. then to examine him or her again to clear up matters raised by the written material. however. unobtrusive note taking probably represents the optimum compromise among choices. presumably. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops.” was appropriately disconcerting. 3. to have the interview audiotaped or videotaped. “You wouldn’t let me!. it might be effective and appropriate to examine him or her first. This decision is legitimate but bears consequences. If you are unable to prevent the above intrusions. an audiotape or videotape of an interview may be constructive. cuing. be spared this burden. Verbatim material also can be obtained in this way. and suggestions from the attorney present may contaminate the process. although this irritates some examinees more than writing during the interview. then to read the database. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. 2. exaggerating symptoms. that side’s attorney may refuse to allow you to do so. for some experts. when examining for the opposite side of a case. the expert will receive a request to have an attorney or paralegal present during the interview or. Jurisdictional rules may make one or all of these procedures mandatory. These procedures distract you from being able to give full empathic attention and close observation to the examinee and.
warn once.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. p. 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. is whether the case is fundamentally plausible.
The first question to ask of the case. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. and I want to sue him. 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. as when the complaint boils down to.. This subject is addressed extensively elsewhere (3). a second offense should lead you to terminate the interview and report this interference to your retaining attorney. and so on?
. March. If the attorney attempts in any way to cue or coach the examinee. Do the deviations from standard of care sound hokey.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. 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. in the unpublished 1996 case of Lailhengue v... . the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.36
THE PSYCHIATRIST AS EXPERT WITNESS. be it civil or criminal. distortion. The following are four of the principles that I apply as a generic framework for this purpose. Mobil. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. but the following vignettes make the point clearly:
For example. behind the examinee)... “I wasn’t myself when I plotted that elaborate armed robbery”?
Does the subject on the side retaining you present a coherent story.g. SECOND EDITION
selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e.. a mass tort in Louisiana. (4. a psychiatrist interviewed plaintiffs with an attorney present. 322)
To offer a structure for this stage of the inquiry.
as well as disability evaluations and similar tasks.First Principles
“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. MGM/UA. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money.
This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. the defendant and chief planner of the robbery:
Judge: On the matter of motive we ask you: why did you conceive. she assumed the doctor was not present and could not refute her claim. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. The phone records aided in challenging the claim by providing a time stamp. Finally. the following dialogue occurs between the trial judge and Edward Pierce. She had apparently established these referents by calling the office and receiving no answer. 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.
In the film The Great Train Robbery (Crichton M. he had made several outgoing calls during the time period of the alleged molestation. 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. 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. how might it have occurred alternatively? Is there another way of explaining what happened. 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. remember not to offer any treatment or treatment recommendations to your examinee. even if asked to do so or tempted by medical ne-
. in a sexual misconduct claim later proven groundless. the outcome. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. however. The notion of the alternative scenario can be essential for assessing civil claims. or for some criminal claims of insanity. If the situation did not occur in the manner claimed. observations. such as sexual misconduct. or the alleged damages? For example. 1978).
you are attending to his or her demeanor and its relation to credibility. Note the fully intentional structural resemblance of the above paragraph to informed consent. she had plausible answers for all my questions. you can ask for a break (water. or have no visible effect on your case—only time will tell. I am entitled to make note of that. SECOND EDITION
cessity as treatment issues emerge in the interview. possibly with reporters present. I have been retained by (your side. Other warnings. Is the patient convincing and plausible? Do the words match the music. if not. Her emotions were strong and appropriate to the content. unlike what you may be familiar with from other doctors or therapists. answer them as best you can. the other side of the case. and if you do not.38
THE PSYCHIATRIST AS EXPERT WITNESS. First. such as informing the examinee which side has retained you. that is. my testimony may help your case. what you say may come out in a report. you do not have to answer any of my questions. You will be challenged to weave interview data into the totality of the case. although I hope you will do so. Do you have any questions about what I have told you so far?
If the person has questions. move on to the substance of your interview. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. The relationship is not a medical one. in a deposition. but since I can only be useful if I am objective. compare the consent form in Appendix 1. defendant. or in an open courtroom. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. Third. there are some things I need to inform you about. Second. and you must keep several issues in mind. hurt your case. Only when I subsequently read her deposition did her entire
. what we talk about here is not confidential because I am not your treater. the court). seem to be called for out of fundamental fairness to your examinee. in both civil and criminal cases. please sit down” but before anything substantive has been said:
Before we start. recall that anyone can really be fooled. and others) as part of your exhaustive review of the database. And finally. 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. As you are interviewing the examinee. as noted early in this text.
Fitting Together the Interview
Commonly. restroom) at any time. you will interview the subject (plaintiff. and treatment offers are inappropriate.
An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. Similarly problematic is the matter of intervening causes: “Dr. Jones did Y and the plaintiff did Z. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. but those efforts may fail or be misdirected and may even make things worse. For example. but did that deviation cause the damages. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. especially when they themselves. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i.e.” In the civil system. The plaintiff ’s failure to take those remedial steps does count against him or her. particular plaintiff vulnerability for which the defendant must be held responsible. because of their psychopathology. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. but then Dr. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether.
The Causation or Connection Dilemma
In many forensic cases. on the other hand. because the defendant is not causally responsible for what happened earlier. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. believe deeply in their position. a defendant may be mentally ill. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. the preexisting condition must be deducted from the damages. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. Such distinctions are extremely significant in the hard monetary realities of the legal case. Smith did X at this point.First Principles
case fall apart. 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
.. it only means that you’re being conned into thinking that you’re not being conned. Besides serving as a valuable lesson in humility. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. the case was highly instructive: interviewees can be extremely convincing.
3. DC. then is sexually abused by a treater. they may serve you to recall the case at a later point for research or publication purposes. 2002 Gutheil TG: Reflections on coaching by attorneys. although it has not yet gained broad enough acceptance to be generally admissible as evidence. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. or incident. if any. appeals. Kirby v Ahmad. Washington. and so forth that require revisiting the materials. 1994 Gutheil TG. event. J Am Acad Psychiatry Law 31:6–9. what the results were of subsequent events. work by Pittman and Orr (5) on differentiating serial trauma shows promise. Further research may reveal other promising approaches (6).
1. SECOND EDITION
were of a particular deviation. In addition. Even if a case seems “over. 63 Ohio Misc 2d 533 at 534. If you are discarding case materials. Or. two major approaches apply: 1) shred or have a reputable company shred the paperwork. all case materials except your reports. American Psychiatric Publishing. keep the latter indefinitely. Another good rule is to discard. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. 2.” there may be subsequent posttrial motions.40
THE PSYCHIATRIST AS EXPERT WITNESS. with permission. because they would be hard to replace.
. mistrial claims. and what the exacerbations were of preexisting conditions. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness.
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. 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 your interview notes. or 2) return the materials to the retaining agency. What portion (usually. and then has other symptoms or more of the same symptoms.
Williams CW. et al: Response bias in plaintiffs’ histories. 2007 Borum R. Otto R. 1997 Pittman RK. Families and Physicians Can Cope With Uncertainty. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. 5. Routledge. et al: Medical Choices. New York. Chapman. New York. J Am Acad Psychiatry Law 31:232–238. 1990
Appelbaum PS. 3rd Edition. Zasler ND. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. 3rd Edition. MD. Baltimore.
Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. & Hall. Bull Am Acad Psychiatry Law 21:37–52. Guilford Press. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Lippincott. Medical Chances: How Patients. Feinbloom RI. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Gutheil TG: Clinical Handbook of Psychiatry and the Law. J Psychiatry Law 21:33–76. Williams & Wilkins. 4th Edition. J Psychiatry Law 24:3–25. Assessment 4:321–324. in Clinical Assessment of Malingering and Deception. J Am Acad Psychiatry Law 33:158–175. New York. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. 2005
. 2003 Group for the Advancement of Psychiatry. Edited by Rogers R. 1993 Bursztajn HJ. 1993 Deaton JSD: Toward a critical forensic psychiatry.First Principles 4. Hamm RM.
6. 1991 Lees-Haley PR. Brunner/Mazel. New York. Guilford Press. 2008. Brain Injury 11:791–799.
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and 4) proximate cause. More practically. in this chapter. this bias means that the outcome of an event appears as though it had been far more foreseeable. Generally. Sometimes forgotten is the fore43
. In a suicide malpractice case. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. for example (the most common claim against mental health professionals). once you know it has already happened. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. 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. 3) injury to the patient. you already know the person is dead. than was actually so before the event in question occurred. 2) breach of duty. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. The discussions within this chapter should be considered an introductory survey.
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.CHAPTER 4
Types of Typical Cases
TO ILLUSTRATE SOME of the principles highlighted in preceding chapters.
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,
after the records. There is something of a translation burden on you to read between the lines to determine the issues. for example. of any queries or signs of missing data that the record generates to be checked later or elsewhere. of course). On some occasions. Next. but depositions consist of attorneys’ questions to various parties. When reading the deposition.
. an underline. a post-it. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. I find it valuable to look at the social service history. 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. defendants. or it can be a highlighted entry. In the process of reading. as a separate document. of your thoughts and reactions.” However. nor are the queries necessarily posed the way you would do so. To save yourself reading everything from scratch each time. This notation can be on a separate sheet of paper of similar notes. any forensic document) without making some sort of notation of what is significant. as different things may strike you on subsequent review. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. these may not necessarily be the questions you would want to ask. the expert may draw conclusions from the record alone. Because keeping a medical record is itself part of the standard of care. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. and others. or whatever. The point may seem obvious. the next time you read this document for deposition or trial may be 7 years away.Types of Typical Cases
the tests ordered. plaintiffs. if present. “This is so clear and memorable that I will naturally recall it later. or a folded corner of the page. you may have to pose your own questions to the parties. a marginal scribble. you may be tempted to say to yourself. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. opposing experts. make some sort of notation each time you read through the record. you are seeking consistency and credibility. through your retaining lawyer’s permission and intercession. you read the depositions of witnesses. 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. of what this record entry contradicts or supports in the deposition. 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.
and records of any treating clinicians from points close in time to the alleged acts. These would include witness and victim reports. On occasion. but still relevant. weighing the logic of the deponent’s responses.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. you can be drawn into the prose by the unfolding drama therein recorded. a case wherein the defendant had or has a major. Out of the entire panoply of available material on a criminal responsibility case. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. are the most significant. you are lulled by this informal. friendly approach into letting your guard down and discoursing freely on your opinions. The truly challenging case lies between these extremes.
Criminal Responsibility Cases
In cases of criminal responsibility. Is this defendant someone who seemed to show
. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. namely. SECOND EDITION
Although the more information gathered. “I think you should talk to the retaining attorney. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. in my (and almost everyone’s) view. litigant. 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. the more helpful it would be in forming your opinion. In those jurisdictions where the issue exists. what do you think about this amazing case. Doctor. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. it is inappropriate to call or write directly to the opposing attorney. Because of the flow of material and its often fascinating content. exert the effort to stand back from the process. 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. data gathered at the time of the alleged act. To read critically. eh?” Presumably. is historical material. while reading a deposition. and so on. your attorney’s confidential trial strategy. remember to consider diminished capacity as an intermediate condition. Of second-rank importance. These unethical conversations usually have an informal tone: “So. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. statements of the arresting officers. For example. or expert. The appropriate response is. you may confront the classical poles of the issue.48
THE PSYCHIATRIST AS EXPERT WITNESS.
The novice expert should become familiar with useful publications on the subject (7.
Evaluation of Emotional Injuries
In contrast to the interview for a criminal responsibility case. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. the cause of the crime. the interview in a criminal responsibility case has the least power of all the data collected. a surprising number of individuals avoid treatment. 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. malingering is especially common and problematic in this assessment.8). although mandatory and irreplaceable. the result of the crime. The interview also gives you a chance to assess what might be called a sense of proportion. In one case. All the interview data must be fitted to the totality of the database. 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. I find the interview for an emotional injury case to be of primary value. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. an unrelated accompaniment to the crime. Because of the seriousness of criminal penalties. Finally. as with all forensic evaluations (6). an injury from which he recovered rapidly without lasting effect. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. for example. some on
. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. 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. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe.Types of Typical Cases
for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. and so on. a plaintiff drank from a chemically contaminated bottle and burned his mouth.
you again often encounter the previously described problem of factoring out the effects of serial trauma. 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. The interview took place in his basement recreation room. and startle responses. He claimed to have full-fledged PTSD. as a result of the mugging. I had to interview him in his home because he claimed to be phobically homebound. 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. Next to the small table where we were sitting. in regard to which the defendants must “take the plaintiffs as they find them”). “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. preexisting vulnerability. Such a search can be embarrassing and humiliating to anyone. History. This history may represent the plaintiff ’s “thin skull” (i. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. Finally.. avoidance. 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. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. especially idiosyncratic history.e. SECOND EDITION
their own accord and some when given this advice by their attorneys. with intrusive flashback memories. may be relevant. only to find that the goods are legitimately accompanied by a receipt. The shopper then may sue the store for harassment and consequent emotional harms. The response “My attorney told me not to” conveys its own obvious message. I
. In this situation. A question you should ask your interviewee is. The Startle Response That Wasn’t
A plaintiff had experienced a documented mugging and was suing a company for inadequate security. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. 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. Not only might these provide a context for the injuries claimed. too.50
THE PSYCHIATRIST AS EXPERT WITNESS. but they may also be relevant to assessing damages or preexisting conditions. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. For example. however.
Types of Typical Cases
knew this because. and. Initially. the jury ultimately decides. dying.
This observation was potentially valuable and worth recording. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. I myself jumped in my chair. yet the observation is valid. fellow passengers. you may be asked to review a case that has been extensively covered in the media before you have been retained. not totally probative. As the “moving
. therefore. injury. the case certainly seemed meritorious in theory. Boston Harbor with freezing. he would have said calmly. looking straight down past his toes. who. ate like a lumberjack. He was strapped into his seat. He slept like a log. the former passenger was revealed as a serious. of course. On the surface of his story. unimaginative. the plaintiff or prosecutor can say anything. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. the alleged malpractice. There is a fundamental asymmetry about media coverage in almost every case. on careful inquiry. He gave the impression on interview that if you fired off a . stoic fisherman. This passenger.357 Magnum close to his ear. In a famous incident. to get the actual data. don’t assume—examine. that is. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. or crime has generated publicity first. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages.
At one point or another. One of my cases raised this issue. but at incredibly high levels. It is. had no signs of trauma whatsoever. had been in the front row of seats just behind the break in the plane. it turned out. and did not dream. it seemed to me that this incident would induce PTSD in a stone statue. This case also illustrates the maxim. usually not.
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. he saw a jagged metal edge and below that edge. however. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. perhaps so. The Case of Cockroach Harm
Can infestation by cockroaches be a trauma? At low levels. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. On detailed examination. An apartment dweller sued her landlord for failing to respond to the infestation. 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. then you get the case. without warning. which the average member of the public really doesn’t understand.
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. Some attorneys may try. until it is proven in a court of law. lest your review should begin with a one-sided perspective. (Chapter 9. The defense attorneys must say “no comment” each time. for example. Therefore. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. pushing the case for all it is worth. In short. to influence the public powerfully in advance. but so do a number—perhaps a greater number—of venal witnesses. SECOND EDITION
parties. “Developing and Marketing a Forensic Practice. and spill hot coffee over their thighs and sue McDonald’s. of course. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media.” the attorneys have to create the case from scratch. the plaintiff and prosecutor inevitably bias the public’s perception. By doing this. in hopes that some of that public will later become jurors.52
THE PSYCHIATRIST AS EXPERT WITNESS.) Another stigma of the hired gun is the counsel of perfection. In malpractice cases.” in this volume provides more reliable methods of publicizing your practice. 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. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. because they don’t want to give away trial strategy. 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). selling testimony instead of time. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. the defense attorneys cannot answer the media’s questions. but this principle may be readily overlooked in a media frenzy. however. A plaintiff can say to the media. rip off the covers in moving cars. consciously or unconsciously. you have to be alert to this potential biasing factor and be aware of the media asymmetries. the standard references the average reasonable
. for example. 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. “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. there is no case until it is brought. Even though you may try to tune out the media. Ninety-nine percent of the time. None of this trumpeting means anything.
the counter to such claims often begins with the phrase “Well. it’s a very serious situation. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Indeed. Anyone always could have done more. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. The hired gun often advances a perfectionistic standard as though it were the average. 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. Another variation on this theme is. 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. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. “They (the defendants) should have done more.” Many “good ideas” theoretically might have contributed to the patient’s care. in the real world. Waffles are evasive. For example. 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.” This testimony is a classic hired gun claim. 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. the likely explanation is that the treaterexpert made it up to suit his views of this case. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. An even more malignant twist is the made-up or artificial standard. The real issue is: does the standard of care require more. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner..
.Types of Typical Cases
practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. I personally have never heard of or read that standard anywhere. 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. “If the care had been adequate. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation.
The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. specifically. More to the point. took some blood pressure pills one time in [city]. he gets frightened. Getting the feel for how the waffle works takes a certain amount of reading of case material. and that is frequently the hallmark of the hired gun. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. actually. an emergency petition ideally would have been. rather than ideally. In the following example. reasonably would have been. but that is the answer to a different question. we don’t know whether he stops or doesn’t stop and get [drug] or not. but. 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]. an hour before that or less signs a 3-day statement and then just disappears. the mental state and what’s gone on in that patient’s mind is very uncertain. of unpredictability.
Note that this entire chunk of testimony is one run-on sentence. The entire answer took four full deposition pages. 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. he should have been [that is. It certainly should have been considered. Also note that the failure to consider a valid option indeed may constitute negligence. but this excerpt is representative:
The standard of care in my professional opinion was breached in that once the patient left. SECOND EDITION
Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that.54
THE PSYCHIATRIST AS EXPERT WITNESS. and where I believe the standard of care was breached was that the patient. he has taken in despair 10 lithiums some years back.
Note how that witness actually avoids responding. 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. that this is a patient with some history of a. Is that a yes or a no? In fact it is neither—it is a waffle. it seems nearly impossible to extract the actual opinion from the thicket of prose. a reasonable history. goes all the way to [another city]. there is a lot of despair and a great deal of thought disorganization in the patient. a patient had escaped from the hospital. then committed suicide. I am not in a position to tell you that that would be the only choice.
That was the answer in toto.
Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Int J Law Psychiatry 6:317–329. Baltimore. Brodsky A. 2002. Conceivably. for better or for worse. Int J Law Psychiatry 6:331–350. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. 3. Edited by Simon RI. American Psychiatric Press. DC. Finally. Yet. we may be dealing with an incompetence issue. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. Science 211:453–458. 1975 Tversky A. 1983 Bursztajn H. New York. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. 2008
. Kahneman D: The framing of decisions and the psychology of choice. I: malpractice prevention and the use of subjective data. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments.
In fairness. II: clinical uses of legal standards in the interpretation of subjective data. 4. Gutheil TG.
1. which makes sure the patient is safe within a structured environment. 2. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney.
7. we must consider another possibility regarding the above examples. et al: Decision-Making in Psychiatry and Law. I would prefer never to assume malice when incompetence would serve as an alternative scenario. and that includes they would be safe within or without the community. Williams & Wilkins. Guilford Press. but that doesn’t mean that it’s without supervision. MD. Bursztajn H. with impunity. foresight: the effect of outcome knowledge on judgment under uncertainty. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. 3rd Edition. Bursztajn H. Shuman DW. a trend of such waffling answers in deposition does set off my hired gun detector.Types of Typical Cases
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. J Exp Psychol 1:288–299. 1991 Fischhoff B: Hindsight. 1981 Gutheil TG. Washington. note that one cannot. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination.
Psychiatry 1:26–28. 1993
Binder RL: Sexual harassment: issues for forensic psychiatrists. Psychiatr Clin North Am 17:439–446. 2nd Edition. DC. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. et al: Detection of malingering in competency to stand trial evaluations. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. 1995 9. Gutheil TG: The problem of evasive testimony: the expert “waffle. J Psychiatry Law 28:5–18.56 8. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. Psychiatric Services 50:767–773. Washington. Viglion DJ. insanity. 1987 11. 2005 Simon RI. American Psychiatric Press. 2004 Knoll J.” J Am Acad Psychiatry Law 35:112–117. Meloy JR. psychiatry and the law. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Legal Studies Forum 9:41–53. 1992 Gutheil TG: A confusion of tongues: competence. Bull Am Acad Psychiatry Law 20:409–418.
THE PSYCHIATRIST AS EXPERT WITNESS. Law and Human Behavior 19:493– 505. DC. American Psychiatric Press. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. SECOND EDITION
Gothard S. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. 1999 Gutheil TG: Fundamentals of medical record documentation. Washington. 2000 10. Bull Am Acad Psychiatry Law 21:23–36. J Am Acad Psychiatry Law 34:215–223. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment.
In both cases. Note that some jurisdictions practice “trial by ambush” without expert discovery. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. preparing for what to expect from the various witnesses and documents.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 two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. From the viewpoint of the expert.
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. Attorneys probe and define the limits of their cases. the attorney will likely write the actual prose of the 57
. Under some circumstances. there is the period known as discovery. 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. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. if any.
hyperbole hurts you. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. the expert. it is always unethical. either from clinical evidence or experience or from facts in the database. based on his or her interpretation of the rules of evidence. If you discover this to have occurred. your attorney will advise you as to what requests for information or documents will be objected to or refused. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. I advise you to withdraw from (or refuse to take) the case. It is critical that everything in your interrogatory be something that you have already decided you are able to support. The Psychiatrist in Court: A Survival Guide.
. reasoning that they can always modify their opinions at trial when the right questions are asked. For example.
The second major area of discovery is the deposition. Opposing attorneys usually follow one of three agendas. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. or some combination of the three: getting your opinion. In addition. This approach saves you from having to retract misstatements on cross-examination. the interrogatory is sworn testimony. 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. However. you do not want to be associated with this attorney. read every such document before it is turned in. and painting you into a corner. attorneys sometimes ask you for your tax returns of the last 5 years. even worse. obtaining admissions. that is an attorney’s function. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). 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. review Chapter 5 in the companion volume to this book. On occasion. If you have never given a deposition or you feel a bit shaky about the procedure. guided by your input as to what you expect to testify to at trial. without retaining you at all. Do not attempt to decide what is or is not objectionable yourself. SECOND EDITION
answers for you. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2).58
THE PSYCHIATRIST AS EXPERT WITNESS.
scheduling problems. the attorney is not averse to discovering precisely those points that will help his or her side of the case. time considerations. a telephone conference. or a full-fledged repeat deposition. and so on. On the other hand. The attorney can then prepare cross-examination. for instance. select rebuttal witnesses. In this latter context. you are ethically obligated to so inform your attorney. the attorney.
The second major agenda for the deposing attorney is to obtain from you. to empty your wordhoard. but not ideally. This discovery function is a completely legitimate task and one with which you should cooperate fully. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. and deadlines may dictate this suboptimal condition. the police. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are.Discovery and Depositions
Getting Your Opinion
First. who is in turn obligated to inform the attorney on the other side of your new opinion. When you subsequently receive. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. Just answer the question. Attorneys also stress that the deposition is their one chance to find out what you have to say. the plaintiff. during the course of the deposition. as a way of ensuring that your opinions may be brought out at trial. This information may or may not trigger a supplemental step for you in the form of an interrogatory. This ploy usually can be defused by your attorney. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. inform his or her experts about facts or issues to pay attention to. over and above what has been conveyed in reports or interrogatories. Of course. the defendant. if any. but this is a subintention within the larger discovery framework. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. admissions and concessions of points or
. 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. taken before the entire database has been acquired or reviewed by the experts. depositions are occasionally. as the Anglo-Saxons phrased it. and so on. a witness’s deposition or medical record that you had not seen before your own deposition. however. 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).
For example. conceptually.. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance.
Your Goals for the Deposition
One scholar has described the witness’s goals as truth. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. On arrival at the hospital. not the mental status by itself. raised many possibilities.
Painting You Into a Corner
The third common agenda for the deposing attorney is to paint you into a corner. This procedure elicits sworn testimony. The points may relate to guilt. In a wrongful commitment case against the hospital. and accuracy (3). also under oath. however. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. 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. any contradiction is obviously damaging to your credibility: “You swore this now and that then. Truth. he denied to the admitting physician that he had any violent intent. At trial. based on paranoid-sounding content. so that your opinion is constrained or limited in a way that decreases its impact.e. You are locked in to that testimony. to kill coworkers. Indeed. is the final standard. of course. The answer was no. His mental status was not particularly demonstrative of symptoms of mental illness. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. When you later give testimony in court. much was made of this testimony. that justified the admission. competence.
. even though it was the preadmission history. or damages—the entire gamut of forensic possibilities.60
THE PSYCHIATRIST AS EXPERT WITNESS. of course. your) side of the case.
A patient was committed because of threats. that is. negligence. 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. under oath. Accuracy addresses the clarity of your vision in relation to the known facts in the case. although the history. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. what are we to believe. SECOND EDITION
views detrimental to the other (i. fairness. 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. insanity.
however. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. To do your job.
. your opinions (and their limitations). using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. focused. More details about this necessity are discussed later in this chapter. you must be rested. Get enough sleep the night before the deposition. A small number of attorneys attempt to wear down the expert by sheer passage of time. try to eliminate distractions. 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. Rather. it is an essential part of the evolution of a case and thus your role in it. intense concentration sustained over hours is hard work. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). The expert should clear a full day for the deposition to be on the safe side. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. Unfortunately.
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. hoping to hit the key points if only by accident. several factors urge clearing substantial blocks of time for deposition. you were probably not paying sufficiently close attention. if more time turns out to be required. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. alert. Still others. will spend hours inching through the expert’s credentials. as noted above. If you do not go home after a deposition feeling tired and drained. Prepare for this. and vigilant at all times. 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. and your planned testimony. aware of the serious weakness of the substantive aspects of their case.
Some Practical Points
For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. Occasionally. this also takes a toll on the court reporter.Discovery and Depositions
You should state that you want the written record of the deposition to do justice to your views. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. another deposition date can be scheduled.
in the following example.62
THE PSYCHIATRIST AS EXPERT WITNESS. 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. or evidence of a propensity for violence. And the third part of your question is. ask that it be broken down. which I codirect. “The patient gave no sign. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. therefore. you can give a useful compound answer to a compound question. A more effective answer might have been. so you were negligent. let me answer all three components. in order to determine competence. Question: So. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. If there is the slightest doubt. Second. so you were negligent. it is serious. or you knew and didn’t act. The following example illustrates that you may be playing with fire when offering compound answers:
Question: Now. On rare occasions. yes. they have to enter into a dialogue with their patient. but it is quite risky and may compromise clarity. his act could
. If the question is compound or complex. no. First. I am serious. 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. yes. 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.
Note. ask to hear it again or have it read back. SECOND EDITION
Listen to the Question
Make sure the question you are answering is the one you were actually asked.] Answer (by case manager): I don’t think I would agree with that. 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. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. the case manager’s lack of understanding might be negligent. to be an appropriate way of determining competence in the clinical situation.
Question (attorney for staff member): Knowing what we know today. warning. I don’t—I wouldn’t agree with you there. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue.
”] Question: Is that the procedure in which you make notes. a patient with apparent bipolar disorder challenged an involuntary commitment. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. When seen. Note that an excellent and self-contained answer to such a question or line of questions is. right. 5 years and hundreds of patients later. “I don’t recall. any good nurse does that. the totality of symptoms did so). paranoia. Her answer ignores the fact that the record does not always note the source of the clinical data. from a previous shift—is universal practice. reveals the hazards of too effusive. in a vacuum. of course. not the only possibilities. not what others have told you? [The attorney tightens that very screw. The deposing attorney inquired.
Question: Did you observe [patient] attending those meetings.
. social obnoxiousness in various ways. that the witness specifically remembers such a detail.] Answer: Gee. The following excerpt of testimony given by a naive fact witness. too discursive. It is unlikely. the witness should decline to answer yes or no to such a question. the answer.]
Yet another deposition tactic is what I call gerrymandering the data. Obviously. challenge. did not constitute sufficient evidence of bipolar disorder (although. or weaken certain conclusions (4). which might be used against her nursing colleagues.] Answer: Right. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. not the individual element. you write down what you have observed.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. and grandiosity. [The witness sets her own standard of care. and too extensive an answer to deposition questions. no. But this witness has set a standard for herself: “hope for truth.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. or did you make that entry based on information given to you by others? [These are. of course. making a chart entry based on what you were told by other staff —for example. In addition. vulgarity. moreover. “In a vacuum. I sure hope I saw him because I usually don’t write things unless they are true.” would be perfectly okay. [This is not an answer to the question. For example. the patient manifested rapid press of speech. testifying 5 years after a suicide. Clinical data also can be cut into discrete segments to attempt to refute.Discovery and Depositions
neither be foreseen nor be prevented. Gee.
” or a short narrative response that contains the question so that the response. “Objection. incomprehensible questions. usually accidentally. Overlapping dialogue is awkward or impossible for the reporter. If your attorney says.
Deposition answers are drawn from a surprisingly shallow pool. Insist on finishing your answer to your satisfaction. Other useful basic tips include the following: 1. Be careful about overlapping speech.” “I don’t recall. 3. drugs. Correct any errors. your attorney may be trying to call your attention to something. and the like. Some key points made in that volume are the hazards of guessing. in essence. insist on a time frame.” “I don’t know. in the belief that your pause means you have finished. the trap of double negatives in the questions.” reflect a moment on why the time frame might be important in relation to that particular question. Also remember to listen carefully to the objection.64
THE PSYCHIATRIST AS EXPERT WITNESS. pause a moment. and so on. Spell unusual names. Speak slower than usual. Attorneys may sometimes interrupt your answer. and the importance of speaking slowly. Recall that the written transcript is the durable version of the deposition. The Psychiatrist in Court: A Survival Guide.) Your answers must be verbal and aloud. If any of these summary phrases do not trigger recognition. shrugs. who cannot take down two simultaneous conversations and produce a clear record. in effect. Pausing allows you to replay the question in your head and to think about your answer. They are. because the stenographer cannot record winks.” “no. review the corresponding discussions in the companion volume. cannot be quoted out of context. and carefully for the stenographer. nods. 2. Do not tolerate this interruption. immediately correct
. instruct you not to answer. shakes. not your glib response in the deposition room. (See also Chapter 5 in the companion volume. terms. The pause also allows other attorneys to object. but sometimes they do so deliberately to distract you or to break your concentration. Giving the stenographer your business card before the deposition is a highly useful courtesy. If your concentration slips and you give an answer that you later believe was wrong or even misleading. clearly. SECOND EDITION
The Pregnant Pause
After the question is asked. not only for the spelling of your name but for contact after the deposition for questions. a garbled record from too-fast speech wastes everyone’s time and money. or you might infer something useful from the type of objection posed. lack of time frame. whose written record will be the actual form of the deposition in all future contexts. each speaker should finish before the other begins. “yes. and other myoclonic responses.
pp. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. but I can’t say that any of them were [sic] precisely like this one. No.)
When to Throw It Away
In my consultative experience. if you are concerned specifically about a matter of privilege that may govern your answer. As a deponent witness. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. the deposing attorney may ask. but leaving the error on the record means having to retract it on cross-examination.Discovery and Depositions
it on the record.. Two points about this problem should be kept in mind. . “Doctor. In a suicide malpractice case. the entire deposition takes place under oath and under penalty of perjury. Second. he could accurately answer in the negative. .To tell the truth. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. . . I tell a lie. exercise this option. Therefore. F8–F9)
Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. Therefore. Therefore.If I said that. 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..6]. First. . I’d be lying. Baker makes an excellent point about the precision of an answer in the following excerpt:
The opposing lawyer may ask: “Doctor. the deposition may be paused for that consultation. However. this may be phrased as when to throw away the “throwaway” questions. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. for example. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. (The question of coaching is more extensively addressed elsewhere [5.. . this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture.” (3. would you agree that a patient’s sui-
. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. 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. When in doubt.” Of course. because no two fractures are exactly alike. where you are retained by the defense. the doctor might answer: “Well. To err is human.
THE PSYCHIATRIST AS EXPERT WITNESS. of course. may attempt to get some off-the-record insight literally in the doorway. the novice witness relaxes and loses focus. With an encouraging smile the attorney looks expectantly at you without saying anything. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. is “It ain’t over till it’s over. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer.” At that point. having inexplicably found his or her second wind. have some water. and we’ll be done. Your retaining attorney may also get into the act. by the way. an attorney may look ostentatiously at his or her watch and say. but the lack of the note did not cause the suicide. but you know enough not to get involved in that “thing. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. The moral here. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. Doctor.
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. thinking about dinner and work to do later.
. not unlike some patients in psychotherapy whose doorway pauses—“oh. just one more thing”—contain vital material. on the record. and move on.”
The Silent Treatment
The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. It is not the defendant’s negligence that is at stake in this situation but your credibility. throw it away. influenced by the TV show Columbo. in the colorful argot of the national pastime. still. The attorney asks a question. Remember that the failure to write something down may be below the standard of care. check your watch.
Blows After the Bell
After a deposition has been going on for a while and you have maintained your concentration throughout. and you answer it. “Just a few more questions. wait until it gets ridiculous. When the answer is that clear. make the concession. Quibbling over the possible exceptions or equivocating in some way helps no one. Subjected to the silent treatment.” Wait to relax only after the stenographer has put away the machinery. SECOND EDITION
cidal ideation should be recorded in that patient’s record?” The answer is yes. Occasionally. now begins to fire rapidly at the witness.
” in a manner to ignore those feelings. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. “I understand you to be asking me.”
The Limits of Expertise
Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert..” Avoid the narcissistic trap of “I can answer anything.Discovery and Depositions
Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor.and the answer to that question is . but I’m in favor of sensitivity. using categorization. as is “That is outside my area of expertise.”
.. This method sometimes involves carefully answering the question that the attorney should have asked. I find your question a little confusing. Some questions are curious because the attorney appears to be flailing at. and answer that part. and this response is perfectly appropriate. if you’re grossly suicidal and you have access to guns and drugs and alcohol. 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)... 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. “I don’t know” or “I don’t remember” is a fully appropriate answer. For example. Responding to such flails is a challenge:
Question: In that case [of suicide in an alcoholic man]. the subject matter. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can.. rather than asking about.. they often fail to realize that they do not have forensic evidence to back up those notions. make sure you include the question in your answer on those occasions so that no one is misled. No expert is expected to be an expert in everything or to remember everything. that we can’t isolate ourselves with notions of “I’m not part of our society.
Note how the first question was a total loss and had to be rejected completely. therefore. The only valid answer is that those questions are outside your area of expertise. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. 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.
stand up in their chairs. “I can continue until midnight. heretofore quiet and almost appearing bored by the proceedings. careful speech that may be more formal.
. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. clear. and so on. When everyone is through. Clinicians may be tempted to call on their clinical skills to temper violence. you will make it worse. As noted. authentic or merely theatrical. unfailingly polite.” This assumption is dangerous because it suggests bias. you assumed it was a medical record in good faith. The two sides. threaten to go before the judge to plead their points. In the specific malpractice context. Because the stenographer (and not the jury) is your audience.
The deposing attorney may ask. The only assumption you should make is good faith. the next question will be coming your way. “Did you make any assumptions about the case before you began?” You may be tempted to say. more technical. and demonstrate other regressive behavior. should that become necessary. I know that’s a good hospital. In one deposition. more boring. no matter how generic or basic it may seem. 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. the parties are really the parties in the case.” This position of timeless patience puts the onus appropriately on the attorney to move things along. If the admission note turns out to be a forgery. The only vital difference is the way in which you speak. occurs rarely may throw the novice witness: a roaring fight between attorneys. and far less friendly and instructional than it would to a jury. firm. you will be addressing him or her in slow. but your belief might interfere with your detection of negligence in this case. clear. never losing your cool. and you might well know some of them. scream at each other. This fight is an attorney-to-attorney matter. stay seated and keep quiet until it is over. or facilitate calm negotiation. A situation that. this implies arranging coverage for your patients should a crisis occur. after which the expert examines for evidence either way.68
THE PSYCHIATRIST AS EXPERT WITNESS. fortunately. for example. Do not do anything. mediate the debate. There are good hospitals out there. that is not your problem.” as it were). an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. so I assumed that they knew what they were doing. meaning that you assume that the documents are what they seem to be. SECOND EDITION
The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. Your attitude should convey. “Well.
inescapably. you may be asked to supply the names of authoritative texts yourself. Be sure to maintain a sense of proportion about these references and their utility. the parallel assumption would be “Sane. to make an informal clinical diagnosis. and DSM gives the formal criteria for diagnoses.”
In the course of a deposition. Novice experts. the examining attorney may ask you if a specific text (book. chapter. no one wrote a previously published book or article with the exact case in mind in which you are involved. and innocent until proven otherwise. Some experts respond that the DSMs are not authoritative. After reading the entry carefully. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. Most modern books and articles have multiple authors or editors.Discovery and Depositions
Failure to begin from that essentially neutral position may suggest bias. of course. then. yet the clinical diagnosis and treatment still may meet the standard of care. may imitate the attorneys by overvaluing these texts and ignoring their limits. Comparably. 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. you cannot take the position that no text is authoritative. both sources are “authoritative”: PDR contains the actual package insert information about drugs. the disclaimer at the front disavows its applicability in many forensic contexts. desperate for stable islands of consensus in the tossing seas of uncertainty.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. Alternatively. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. this is a matter of risk management for the pharmaceutical companies. However. In one limited sense. or article) is authoritative in the field or in the subject of the current case. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature:
. note whether you agree or disagree in general with the stated points. have their limits. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. Remember. But both. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. In a criminal context. merely official. these publications are not uniform in authoritativeness. For example. Moreover. including those parts which conflict with your testimony. competent. but ask to be shown to which one the attorney is referring.
Your attorney then can communicate with the retaining attorney. this conversation is protected. it is wise to review—and if necessary.. the camera is
. (8. consult your own attorney. Also. let the attorneys determine whether it is discoverable. and you may have to furnish copies to opposing counsel. Give both (or several) points of view if they exist. especially if details remain unclear or if over time the clinical condition has changed or evolved. Meet with the attorney and review the issues. Arrange to do so with the attorney sufficiently early. Under some circumstances. You must exercise some care in these discussions as they may be discoverable.. p. review your files as diligently as if you were going to trial. summaries. remember to go to bed early. some discuss details of trial strategy in their letters to you. Any notes.. but this is not your problem. In addition.e. Obviously. SECOND EDITION
When quoting the literature. be balanced and accurate. In some cases. whose transcript will endure and be used for any impeachment possible. or “cheat sheets” (i. In contrast.
The Video Deposition
A modern wrinkle on the procedure is the video deposition. statements. actually visiting a site may be important. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. Frankly admit if anything has been removed from your file. you will need to review a wide array of information. 571)
Final Predeposition Preparations
Before the actual deposition. Many attorneys anticipate this problem and send only bland correspondence. laboratory values.. The usual audience of the standard deposition is the stenographer. outlines or summaries for quick reference) may be subject to subpoena for the deposition. The latter may be privileged. police reports. record notes. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. and so on so that you can buttress all your conclusions with specific elements from the database. you also may want to meet one more time with the attorney’s client before the deposition. check the accuracy of any numbers (9). If you are really unsure about something. rehearse—the details of the links between your conclusions and the facts.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. in the video deposition.70
THE PSYCHIATRIST AS EXPERT WITNESS. Above all. well before the deposition.
After the Deposition
Always ask to read and sign the deposition. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. Remember to keep your language level. you are under constant scrutiny. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. If the deposition has been particularly instructive or noteworthy. As in the trial described in the next chapter. representing the jury. say. careful.Discovery and Depositions
the audience.” and rendering. but under some circumstances the notarization can be waived. checking for errors and typos. and the deponent signs under pains and penalties of perjury. “irresponsible” as “responsible” are small changes with profound results. and pedantic level of the ordinary deposition but in basic. the video may also serve as the vehicle (in this case. and must beware of inappropriate gestures and personal bodily attentions. of the word “not.” 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. jargon-free. the deponent expert should always ask for a personal copy to review in preparation for trial. this time in a permanent record. “It’s an us-and-them situation” was rendered “It’s an S and M situation.
. you should try to direct your gaze toward the camera lens. instead of—your personal appearance in court. Recall that omission of a comma. not at the ponderous. In the current economy. but errors can creep in. 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. When you receive the deposition transcript. read it very carefully. who may see the video displayed in addition to—or. the expert may wish to retain a copy for teaching purposes after the case is over. The video deposition presents a number of possible pitfalls. juror-friendly. My personal favorite is when the phrase. This approach risks eventually being papered out of house and home. at times. At least one copy of the transcript is returned either to the court reporter. Most court reporters are extremely good at their jobs. the retaining attorney. trial-suited English. the only vehicle) for the expert’s testimony. If the expert is known to be unavailable for the trial dates. or the deposing attorney for distribution to the parties.
SEAK. Bull Am Acad Psychiatry Law 10:17–27. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. 2001 Baker TO: Operator’s Manual for a Witness Chair. 39–40. 1987
. Falmouth. 1999 Babitsky S. Simon RI.
Babitsky S. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition.72
THE PSYCHIATRIST AS EXPERT WITNESS. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Child Abuse Negl 17:571–572. legal fictions. 1993 Malone DM.
6. 2006 Gutheil TG. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. MD. Willliams & Wilkins. 7. The Practical Lawyer 39:55–63. Med Econ 82:45–48. National Institute for Trial Advocacy. The Practical Lawyer 33:69– 78. J Am Acad Psychiatry Law 29:313–318. 8. Mills MJ: Legal conceptualization. MA. 2008 Rice B: Malpractice: how to survive a deposition. Simon RI. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. 36. Milwaukee.
5. Defense Counsel Journal 4:174–179. SECOND EDITION
1. MA. 2005 Suplee DR. 4. Falmouth. Vols 1 and 2. IN. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Defense Research Institute. MD. J Am Acad Psychiatry Law 34:18–22. J Am Acad Psychiatry Law 31:6–9. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Lippincott. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). 2007 Gutheil TG: Reflections on coaching by attorneys. 6th Edition. Gutheil TG. 2003 Kaplan HI. Current Psychiatry 7: 25–28. WI. 9. 1982 Gutheil TG. Williams & Wilkins. 1983 Gutheil TG. Woodruff MS: Deposing experts. Baltimore. 1996
2. Baltimore. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. SEAK. South Bend.
and devising means of locating key passages in the database quickly. If you are testifying away from home. Nevertheless. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. review that chapter. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. 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. 73
. examining the companion volume. If you are uncertain about the guidelines for trial preparation. Planning. I review some of the basic courtroom procedures. 2. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. and they are the subject of this chapter. trials do come around every so often. settled. For the expert witness. The Psychiatrist in Court: A Survival Guide. pled out. I addressed the six Ps of trial preparation. Preparation. the same six Ps should be reviewed but with a slightly different emphasis.
In Chapter 6 of The Psychiatrist in Court: A Survival Guide. For the expert. In this chapter.CHAPTER 6
The Expert in Trial
BECAUSE ONLY ABOUT 6% of all cases ever go to court—the
rest are dismissed. is recommended as an orientation. For experts who have spent little or no time in court. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. 1.
You at least need to hear the questions that the attorney plans to ask you and to think about your answers. and the data relevant to the other side of the case. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). and select useful examples from your experience to make central points. the unknown issues. and what the emotional climate of the courtroom is. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. Confirm travel arrangements and other details. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. 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. The pretrial conference is probably one of the most important stages of preparation for trial. the contradictory evidence. Presentation. Pretrial conference. If you have a disability. the floor of the courthouse on which the courtroom is located. Clarify and confirm your travel arrangements. Consider taking a taxicab to local courts to avoid parking hassles. Even more distressing. Pitfalls.
6. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. location of restrooms.74
THE PSYCHIATRIST AS EXPERT WITNESS. Insist on this conference if the attorney is equivocal or resistant to the idea. Clarify in your own mind how you plan to deal with questions about your fees. On cross-examination. and the expected cross-examination. Review the weaknesses in your opinion.
3. Most of these matters are best handled on direct examination where some measure of control can be exercised.
7. you need to know through choice and practice how you will convey your opinion to the jury. and all such details. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. You should rehearse ways of expressing information to the jury.
4. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. It is not enough to know the database. Practice. your publications (especially those relevant to this case). what previous testimony has been given.
5. parking arrangements. Build in contingency plans for the possibility that the trial extends into the next day at least. practice sketching any visual aids you will need for the courtroom blackboard. and your past experiences. the location of the trial. the relevant literature. Define the limits of your testimony. what the judge is like. You also need to hear how the trial is going.
Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. Regrettably. but if you are the only one standing. particularly experts.S. which are sometimes in obscure locations in older courthouses. 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. this kind of potentially valuable hearing and screening device can also be abused (2).. that is. may occur prior to trial (occasionally. and whether the testimony will fulfill the legally required expert function in the court. Supreme Court case. From the viewpoint of the expert.e. Before going into the courtroom. and to ensure that recognized approaches to the subject matter are chosen. 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. The topic requires more extensive discussion (1). It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well.
Preparing to Go On
Many courts sequester witnesses. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. the best approach is to exercise care about the methods used to reach conclusions. its methodologic reliability. 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. sit down. experts are not allowed to be present in court for the testimony of any other witnesses. Once in the courtroom. rise for the judge’s entrance. to be able to articulate the bases and reasoning behind those conclusions. Wait in the public seats until actually called to the stand. When you are allowed to hear the testimony of other witnesses. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. Such a hearing.The Expert in Trial
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. where the jury will be and what
. you will find it valuable to locate the restrooms and telephones. named for the plaintiff in an important U. much valuable information can be gained and the tone of the room determined. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1).
Key documents might include my report and interview notes. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. if needed. having the whole database on the stand permits greater support of your testimony with specific data from the documents. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. Note that some anxiety is normal. the attorneys will have it). The downside is the need to remember a vast amount of detail and to recall where. a particular citation is. yellow self-stick notes. while the experts are testifying. SECOND EDITION
the room looks like from the hot seat). Note again the importance of having and practicing a plan of organization.
What to Bring
Experts and their retaining attorneys vary in whether they prefer. only a copy of the expert report that is already in evidence or only a curriculum vitae). When no documents are before you on the stand. The expert should determine which of these two approaches is more suitable. because his or her opinion is being given from memory. essential medical records
. the opposing attorney cannot search through them for something with which to impeach your testimony. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. Each preference has its pros and cons..76
THE PSYCHIATRIST AS EXPERT WITNESS. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. in an often extensive chart or deposition.g. On the other hand. as are all the substantiating data. and 3) you may become lost in excessive data. or your own table of contents devised for more extensive documents. Recall that in almost every case. 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). 2) as noted. My own preference is to strip down what is brought. tabs. The expert appears more confident and knowledgeable about the case. dog-eared pages. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. and ensures the accuracy of your recollection by direct verification. 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. even for experienced experts.
For depositions of less central players in the case. It is unclear whether either strategy is superior to the other.. or if you must. Avoid either ostentation. the defendant or
. Stick to the conservative business mien. I can use my table together with the attorney’s copy of the deposition.e. and cutting-edge high-drama fashion or excessive informality. Arrange appropriate coverage so that you do not have to worry about being reached. 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. 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. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. what you wear should fit well and be well broken in. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. or carafe of water is an excellent idea. highlighting marker. during breaks. If I need the actual page or quote. Arranging for a cup. perhaps comfort should rule.The Expert in Trial
(pruned to relevant periods if needed). Above all. the bored juror. Finally. do not wear new clothes. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. in the sense that you are usually under observation by someone—the bailiff. the bailiff usually will keep it filled. affidavits. ensure that they are turned off. eccentricity. testifying is thirst-provoking work.
Being on the stand is not unlike being filmed.
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. This table of contents enables speedy reference to key facts. If you are completely uncertain about what to wear to court. depositions. A handy pen or pencil. showing off how busy you are and how court is taking you away from really important matters. and you will not go wrong. your mode of dress should convey the fact that you are a professional in the courtroom on business. I take to the stand a one-page table of contents (i. Indeed. and similar data. and check in. ornamentation. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. Do not wear or carry your cellular telephone or beeper. glass. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. if you must.
or degrades you. humor may seem disrespectful. With discretion. A colleague reported the following:
Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. impugns you. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. SECOND EDITION
Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. even when someone else is speaking. If the attorney is hostile. Avoid personal body attentions (such as scratching) as much as possible. get interested in what you have to say and stay interested. for example) as body language consistent with candor. it is important. Such reactions may be misconstrued as disrespectful. attorney moves on to another subject]. Your identity on the stand is that of teacher. however. but of the jury or the entire process. demeans you. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. Even when an attorney attacks you. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. If you become huffy or outright mad. you win the exchange. you know or should know that it is not personal and has nothing to do with you. sneering. and you want the jury to understand it. humor directed against yourself may show that you do not take yourself too seriously. such as rolling your eyes at the jury when a particularly fatuous question is asked. and sarcastic. A witness with an apparent chip on his or her shoulder (and in court. all such chips are apparent) is particularly unconvincing. not credible. an attorney—at all times. not of the attorney in question. 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. Attorney (with a slight sneer): Isn’t it true. you are likely to be too involved and therefore possibly biased. Scholars recommend keeping the front of your body open (by not folding your arms.78
THE PSYCHIATRIST AS EXPERT WITNESS. or obtuse to the seriousness of the issue.
. Doctor?”). flip. and you are unfailingly polite. There is no reason for a teacher to get mad. obnoxiously facetious. Without such alliance. Beware of “involuntary” gestures. and stuffy. Make your point because it matters. Doctor. fluffy. Be clear. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. as follows.
If no microphone is provided. explain. It is not the same as “certainty” (100% sure). Keep in mind the expert’s role in telling the story in a coherent. evasive. as a result of your careful and thoughtful preparation with your attorney. ask if you can be heard by the farthest ranks of jurors. and to admit that rules have exceptions. not just a classroom exercise. If in any doubt about your speech volume.
Direct testimony should unfold in an organized manner. Speak to the most distant juror to be sure your voice is audible. concede a remote possibility and move on. Although you are a teacher. yet may ultimately give up on your testimony after straining to hear for too long. They are not excessively academic. but without intimidating staring.” but only a few things reach reasonable medical certainty).. Because jurisdictions differ as to the precise definition. they are usually poorly received by juries. not stuffy. As occurs during the depositions noted in the previous chapter. understandable manner that brings the details together in a recognizable gestalt. to concede a point that really doesn’t mean much. to accept a possibility as such (almost anything is “possible. the concept is sometimes rendered mathematically as a 51% certainty. pedantic. even inhibited souls will nod if they can hear. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. to agree that some things happen sometimes. blunts your argument and weakens your credibility. theoretical. If you must use. good teachers are lively and interesting. Haggling with the attorney over a tiny abstruse point. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide).” Make your point as concretely as necessary and back it up with hard data from the database.” that is. Finally. In general.e. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”.The Expert in Trial
Being fluffy means being too abstract. or prone to nit-picking. jargon laden. project. and “waffley. what fools these jargonists be). a juror who cannot hear may be hesitant about saying so in open court. If a microphone is available. or waxing argumentative rather than instructive. or respond to jargon. the most common beginner’s error in the courtroom is the inability to “throw it away. making roving eye contact with various jurors whenever possible. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. Direct your extended remarks to the jury. the trial is a human process. avoid discussing unconscious dynamics unless absolutely needed for your point.
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
the jury usually appreciates being given the “inside story. That is how this kind of antidepressant or mood elevator works. do not underestimate juries. and slavishly but perfectly appropriately. any testimony from this witness would be bought and meaningless. it is numbing to a jury. and the expert has theoretically prepared to tell the story in a coherent manner. Um—as the events became closer to the—um—incident itself [the murder]. “I have no questions for this witness. the best cross-examination is.” preferably said in a mildly contemptuous tone. some scholars assert. and throat clear that you emit on the stand. may record every pause.
Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. In the same way.
Adventures in Cross-Examination
For experienced experts. The jury hears the testimony twice—an aid to both memory and persuasion. as if to convey. 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 chemicals stay in the spark gap and keep working so that your mood is lifted. Over the years. Respect the juror. “I don’t care to waste my time on this whore.The Expert in Trial
(draw a barrier) this process.” but this appreciation is lost if the jury cannot understand or follow your description. Consider practicing such a description with your attorney or colleagues or friends. grunt. such an avoidance of cross-examination is sound trial strategy.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. depressed— um—and seeking help.
As you can grasp by merely reading this response aloud. even if the technical details are lost in the shuffle. The expert is on direct examination by his own retaining attorney. stutter. 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. just like putting your hand over the vacuum nozzle. the dirt stays on the floor. This is a powerful argument for at least organizing your thoughts before you begin to testify.” Realistically. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. The hazards of lack of practice are revealed by this following segment from an actual murder trial. Recall that this is direct examination by his own retaining attorney. if you do that.
. I have been impressed by their ability to grasp what is at issue.
Although this mode of explanation may seem cumbersome.
The following are some examples of the last (all are leading questions. deposition.e. “That’s generally true. questions beginning “Is it possible. Instead. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one.”
.. equivocating hurts you. isn’t that right.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. which may be asked on cross. but in this instance it is not. The attorney may know the answer to a particular question from the expert’s report. attorneys do not perform this simple but effective maneuver. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). “Although the present case is a clear exception to that rule.” the attorney may move on to the next question after you have said. and even the attorney’s competitive feelings directed toward the expert. not always) aware of two fundamental principles that should guide this activity. The tight rein on which you are held may make it difficult to get your opinion out there. the question answers itself ). forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. If you want to say. ask only questions to which only one answer is possible (fittingly. “that’s generally true” and you may be too flustered to challenge the action. It is better to say. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. what you say is often true in other cases. the attorney’s wish or need to have the client see the attorney doing something. Throw it away. or the answer may be obvious from the question (i. SECOND EDITION
Most often. interrogatory. can they not?” • “Another expert might come to a different conclusion. First.”) or exhibitionism (“Watch me shine!”). Even those attorneys who opt to engage in cross-examination are usually (but. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. however. no problem. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. the attorney asks closed questions.. such as the previously listed leading questions. the attorney’s competitive strivings with the opposing attorney or firm.84
THE PSYCHIATRIST AS EXPERT WITNESS. or publications. surprisingly. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. or alternatively..” are almost always answered yes on the theory that almost anything is possible). never ask a question to which you do not already know the answer.
because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. because “What did you discuss?” may well be the first question when you are back on the stand (only discus-
.The Expert in Trial
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. and to allow your attorney to object. 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. We’ll reconvene in 15 minutes. Practically.
Pause briefly before answering each question to allow replay of the query in your mind. If either will do so. some sources suggest answering at the outset. some attorneys advise not discussing your testimony. Doctor. a question will require more time for prolonged thought or searching of your memory.
On cross-examination. to be sure you are clear about the question. if needed. say it. to consider your answer carefully. a judge may even decide to declare a recess: “While you are thinking. “I’m going to take a moment to think about that. and think seriously about whether yes or no will represent the whole truth. Always ask to see the context if you do not immediately and completely recall it. At times. Scholars liken agreeing to this either-or approach to signing a blank check.
During breaks that occur in the middle of cross-examination. consequently.” This response may be foreclosed by the judge directing you to answer anyway.” “no. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. state that you cannot answer yes or no. The key word is truthfully.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). we are going to take our midmorning break right now.” The break gives you ample time to think. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. this type of questioning means that you have only three answers available: “yes. or have you dozed off? It is best to state.” and do so. the attorney may quote something that you wrote or lectured on.” Listen with intense attention to the question. At such moments. and a mere yes or no may fail to convey the “whole truth. You took an oath to tell the whole truth. if not.
Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. Your final opinion. Later. but let’s assume it did not). 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. This change is as it should be. Subsequent communications may be labeled supplementary reports to keep the sequence clear. Now you must testify on the witness stand. I recommend avoiding eating heavily. An aid to this conceptualization is to label your first report. In theory. others find telephone calls distracting and let whoever is covering for them handle things. your opinion. you would have been obligated to so inform your attorney. you may have been deposed.
Various crises may strike while you are on the stand.
. and some additional material may have come your way just before the trial (which. Use your own judgment and knowledge of your biorhythms. could change with complete validity based on some new fact that you hear for the first time during the trial. Some experts want to call their offices during breaks. such as the discovery that you have left a key document in your suitcase across the courtroom or. in the trunk of your car. because it is based on data. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. 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. SECOND EDITION
sions with your own personal lawyer are protected). The thrust of this line of questioning is to convey that your opinion is premature. These include biological and physiological crises or circumstantial ones. the one that counts. is your actual trial testimony. incomplete.86
THE PSYCHIATRIST AS EXPERT WITNESS. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data.
The Final Opinion
During the course of expert consultation. as a “preliminary” report. had it changed your opinion. For the lunch break. or inadequately grounded in data. you may have written a report after reviewing some quantity of material. even worse. if requested.
nod politely to the jury. get down from the stand. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. childish. to see the outcome. Focus on slow. Deal with the problem and then continue with your task with restored focus. it poses a dilemma of a no-win situation. or to learn of other subsequent activity. that’s all. “Thank you. or emit other social behaviors. when you are through. or weak. it invariably conveys the strong suggestion of partisanship. If you do shake hands. stretch your limbs behind the screen of the stand. fans!”). Do not hang around to hear what other witnesses say. More troublingly. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow.” At this point you say. as always. and sit more upright to relieve tension. and both grudgingly acknowledge that neither has any more questions for you. and serious distractions impair your work. you exit. one of the parties or even one of the attorneys reaches out to shake my hand.
The End of the Affair
Finally.The Expert in Trial
Do not hesitate to ask the judge to permit you to take a break for these reasons. entitled. Your Honor. measured breathing. conservativeness is probably better (the discreet nod rather than the glad-hand wave). at odds with your objectivity. The judge will almost always grant this.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. While this is a common and respectful courtesy. sickly. and go. Ask the judge if you may take a brief break for personal reasons. “You (or the witness) may step down” or “Thank you. Do not stop to chat or debrief with the attorney. Some more extroverted experts thank the jury out loud. No one knows the effect of these gestures. If a delaying tactic is not used. This behavior conveys too much interest in the outcome for someone who is not a party to the case. Your job as expert is important to the case. The judge dismisses you by saying. it is preferable just to hang in there. for example. On occasion as I have left the courtroom. wave at the jury box (“So long. Doctor. Do not be inhibited by fears that. What do you care what happens? You only testify under oath. Forensic etiquette requires that you just leave. you will appear inept. you seem to be acknowledged
. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. by needing to go to the bathroom.
nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. the best teacher. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. Gutheil TG. “juror countertransference” toward the attorneys. Because this brief volume can serve only as an introduction. Surprisingly.
1. If you have traveled far with a heavy load of database materials. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. J Psychiatry Law 28:235–251. For your personal development as an expert. however. this task is for the lawyers. you seem rude. while acknowledging that experience is still. and the like—impinge on trial outcome. Take only your report. as always. Most courteous attorneys will inform you later. some forget. SECOND EDITION
for good (but partisan) work. A far more detailed analysis of testimony can be found elsewhere (5).88
THE PSYCHIATRIST AS EXPERT WITNESS. 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. Forces beyond your control and outside your testimony—such as the demographics of juror selection. 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. 2000
. by letter or telephone. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. It is perfectly appropriate after some time has passed to call and ask the outcome. Finally. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. as much as possible about what happened and why it happened. 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. if you do not or you ignore the outstretched hand. always seek feedback and reactions to your participation.
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
which also require several people to synchronize their schedules. but things happen. tops. You must do the best you can with what you’ve got. although obviously fewer persons and a shorter time frame are involved than are for trial.e. requiring two parties to match schedules.” Smile politely when you hear these words but make expansive plans. the trial should take precedence. others are not.” in this volume). sharp.. and telephone calls to resolve them. The last two priorities are interview and report. Travel glitches (discussed in Chapter 10. the other side may be willing to have your testimony inserted into their side of the case. Because your attorney has the most interest in your presence. theoretically. add another layer of challenge. I can’t imagine my direct examination taking more than an hour. and serious matters hang in the balance. so let’s put you on first at 9:00 A .
Trial Time Considerations
A cheerful bit of dialogue that experts hear constantly is. he or she will be exerting the greatest efforts to make it all work out. You may have a little room to maneuver in terms of the order in which you testify. cancellation) is as follows. Because your reports can be done at any time of the day or night.M. and other-side attorneys are reasonable. As a rule of thumb. 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. with a deposition for a third case. of course. attorneys. This type of schedule is close to reality. flexible.92
THE PSYCHIATRIST AS EXPERT WITNESS. An attorney who planned to have you “bat cleanup” (i. The tension here is that some courts. hours. the hierarchy of urgency and therefore attempted postponement (or at worst. a forensic interview. negotiation. SECOND EDITION
for months without any forensic activity whatsoever. You can count on your eyeballs the number of times this clockwork model actu-
. comes before a report. court dockets are crowded and leave little flexibility. I know you have a busy schedule. two trials in different states will be called simultaneously.. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. “The Expert on the Road. but during the very week that you have scheduled four weddings and a funeral. Large numbers of people are involved. In extreme circumstances. with suitable preparation of the jury. You’ll probably be cross-examined for 1. and accommodating. Trials take first priority. maybe 2. If a trial and a deposition are scheduled for the same time. You’ll be out of there by lunchtime. for example: “Doctor. The second priority is depositions.
Commons ML: Trading forensic and family commitments. In the end. a judge will treat the time between 9:00 and 9:30 A . The jury takes a long midmorning break. Thus. 1996
Gutheil TG. no clear conclusions can be drawn. some are not. The judge assigns a long lunch and hears another few motions just afterward.Some Pointers on Expert Witness Practice
ally occurs. American Psychiatric Publishing. J Psychiatr Pract 12:50–54. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2002 Reid WH: Forensic practice: a day in the life. Gutheil TG. The subject may represent some kind of taboo because it is rarely discussed. Why? Although some judges are scrupulously punctual. DC.
1.” In addition. Occasionally. partner. (More suggestions on scheduling are included in Chapter 10 in this volume. Gutheil TG: “Paraforensic” aspects of expert witness practice.M. J Am Acad Psychiatry Law 32:356–358. Bull Am Acad Psychiatry Law 24:533–546. difficult choices may have to be made. Washington. it is not uncommon for an out-by-noon case to extend into the next day. 2006
. 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. 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. 2. However. 2004 Kearney AJ. negotiation may be possible for some scheduling conflicts but not always. The attorneys wrangle over whether some document relevant to the next witness is admissible. 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. and family. the odd juror gets stuck in traffic.)
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.
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or a quasilegal agency such as a board of registration or a bureau of motor vehicles. an attorney. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. or a physician’s deviation from the standard of care. In this chapter. or a full evaluation of a person’s competence to stand trial.
The Forensic Report
Writing a forensic report is an important function of the expert for a number of reasons. some basic principles on letter writing to the court are described and are not repeated in this chapter.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 court. to serve as a witness. a description of an independent medical examination for a personal injury suit. In The Psychiatrist in Court: A Survival Guide. a defendant’s criminal responsibility. 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. or to serve on a jury. or for a disability determination. I focus on writing the full-fledged forensic report. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. allowing careful legal analysis and reflection on whether you will be helpful on the case. for a worker’s compensation claim. In all such cases. 95
THE PSYCHIATRIST AS EXPERT WITNESS. which states all of your conclusions and the analysis of all the relevant substantiating data. According to Dr. In this chapter. then. It should be just long enough to cover the essential information but not so long as to exhaust the reader. the attorney may ask that you not furnish a report. Despite these useful functions. For similar reasons. I emphasize the third form. may take three major forms (with variations possible. which in that jurisdiction is discoverable by the other side. Forensic report writing. “Reports should be self-sufficient. of course): 1) no report.” Dr. has generously and graciously granted me permission to cite some of his advice on report writing. Phillip J.D. I refer to him explicitly in the text). It should stand alone. Resnick also identifies the “four principles of good writing”: clarity. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. which presents your database and conclusions only. and humanity. Critical documents should be briefly summarized within the report. detailed report.
. the report may present materials or approaches that the attorney does not wish to share with the other side. simplicity.. Without referring to other documents. M. In other situations. for which I am most grateful (where I cite his material. without detailed discussion of the bases or reasoning behind those conclusions. Resnick. SECOND EDITION
Alternatively. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. the reader should be able to understand how the opinion was reached from the data in the report. 2) a summary report. painstaking preparation. Obviously. all should govern the form of the report. Resnick. It should contain everything that you need to support your opinion and no irrelevant material.
The report as a whole should meet certain criteria. brevity. and 3) the full. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. Consequently. because the first is self-explanatory and the second is an extract of the third. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. and meticulous proofing and review of any report you produce. 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. These are all powerful arguments for careful thought.
” and subsequent contributions.. Include any interviews per-
. police reports. and depositions.g. .. emotional injury or psychiatric malpractice). legal pleadings.. otherwise. that is. the case or docket number if known. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney.. sometimes called the referral. Identifying data can be presented in a number of ways. The heading should also include your letterhead and the date of the report.. additions. reasoning that the occasion is obvious from context. think of your report as a memorandum and use a standardized format. or State v. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. the charges in a criminal case..” Some attorneys.. One way is to provide the case citation or caption in whole or in brief (e. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses.” • “I examined Ms. Resnick is included at the end of this chapter. or the type of case in a civil matter (e. I examined (name of examinee) with regard to (forensic issue).g. Smith v. of the report should address the question of why you are writing this report.
The occasion.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). In that case. or emendations should be titled “Supplementary Report. use a standard business letter format. 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). John Johnson).Writing to and for the Legal System
The first report should be titled “Preliminary Report. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents..”
After identifying the occasion. Jones et al. One model by Dr.
it is my professional opinion. 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. . all medical reports.g. First. SECOND EDITION
formed and their date and length. 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. The documents may be listed alphabetically. or other) is free to stop there and make decisions about future directions in which the process should go. no convincing case has been made for the inherent superiority of either approach. A typical conclusion in a malpractice case. that. the overall basis is described as both the database (all the material reviewed in the case. in the treatment of (plaintiff ). (or. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials.. attorney. 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. held to a reasonable degree of medical certainty. or according to some natural. logical grouping (e. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke.
The Conclusion or Opinion
The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees.
Note the wording. The remainder of the report is thus treated as optional reading.98
THE PSYCHIATRIST AS EXPERT WITNESS. for example. Although each group has a rationale. chronologically. about the disposition. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . 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. might take the following form: Conclusion
Based on my review of the above materials (the database) and my own training and experience. all depositions). including interview data) and your total clinical background of training (what you were taught) and expe-
. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard).. and so on. you are free to choose your favorite.
your conclusions should be presented in
. 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. Resnick explains. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. malpractice. sometimes frankly contradictory. but occasionally. usually.
After the conclusion. The reader should not have to use his/her own inferences to understand the point. In these cases.. is essentially boilerplate (i. and credibility as an expert witness. Finally.Writing to and for the Legal System
rience (what you have found for yourself by practicing in the field about which you are testifying). Resnick states. this section should contain extracts of previous material directly supporting the points you are making. be it competence.e. more likely than not). standardized legal language). If your conclusion comes at the end of the report. offer alternative opinions. it is predictable that plaintiff and defendant tell different stories. Third. “If there are two versions of the facts. Dr.. you can present the supporting material in several ways. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality.e. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. “Reasons supporting opinions should be clearly and fully stated. the defendant usually has admitted the act for which he or she is charged. Remember that the conclusion. or other. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. the expert should scrupulously avoid assuming one side is correct. insanity. Second. As Dr. Dr.”
In civil cases. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. although representing the core of your opinion.” In every case. If your conclusion is stated at the outset. sometimes different spins on the truth. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. In criminal cases involving the insanity defense. 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). effectiveness. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i.
which make for a stronger report. money. 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. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner.if defendant’s version is true.
Constraints. even if it has been removed from your report for brevity. but generally there is no inherent problem
.. A case example was discussed in Chapter 3 (“First Principles”) of this volume. these should be recorded. then . A challenging gray zone is negotiating about wording. (Remember you must be candid about everything you believe to be true. interview of plaintiff blocked by attorney.” This approach prevents your seeming to side with one party in the case. 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). and deleting. summarizing. then . These are not weaknesses of the report. There is no absolute guideline for this procedure... Limits. to alter or misrepresent facts in the database. or agency for which it has been prepared.
After your report is finished and has been sent to the attorney. SECOND EDITION
the following form: “If the allegations are true.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. judge.. or data (such as inadmissible material. asking for the addition of new material not supplied to you earlier. some are not. you may receive requests to alter the report in some ways.. on the contrary. or to change the substance of your opinions. Some requested alterations are fully ethical. Whichever approach you actually take in your written report. it would be a weakness not to acknowledge these factors candidly.. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. then . including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data.100
THE PSYCHIATRIST AS EXPERT WITNESS. and shortening the report by aggressive editing. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case.
15.1 1. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 6. 5. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 13.
The Criminal Report: An Example
The following is Dr. 4.Writing to and for the Legal System
in adjusting wording as long as the substance of your opinion is not changed thereby. 10. 17. very likely. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. Resnick’s outline for a typical criminal report. 7. 14. 8. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case.
The Experience Factor
This chapter alone cannot prepare you fully for forensic report writing. intensity (likely.
. 9. and effect of emotional injuries—three common problem areas. 3. 2. 12. 16. but it may get you started. 11. extremely likely). Be careful about changing wording concerning issues of causation. 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:
3rd Edition. pp 577–605 Weiner IB: Writing forensic reports. Guilford Press. New York.
THE PSYCHIATRIST AS EXPERT WITNESS. 19. Edited by Weiner IB. pp 511–528
. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. 22. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 2007. 23. Am J Psychiatry 143:164–169. Hess AK. in Handbook of Forensic Psychology. Wiley. 21. 1987. et al (eds): Consultation. SEAK. report writing and expert testimony. MA. 1986 Melton GB. Falmouth. New York. Poythress NG. 25. 20. 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:
Babitsky S.102 18. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. 24. Petrilla J.
” The ability to say yes to all comers seemed like a good idea at the time. a letterhead. embarrassments. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. In the late 1970s. and a typeface for our official stationery. and inefficacies. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. to connote the Harvard connection). We sent this announcement to every attorney we had ever worked with. (I believe this excluded only admiralty practice and the law of the sea. “Yes! We (or the corporation) will take your case. Unfortunately. In this chapter. heard of. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. We will let you know shortly which of our directors will be working with you.) 103
. We retained an industrial designer to help create a logo (highlighting crimson. such an affiliation would mean that we would be able to say to any attorney who called us. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component.CHAPTER 9
Developing and Marketing a Forensic Practice
HOW TO GET started in forensic work is a common preoccupation
among novice expert witnesses. and we drafted an announcement.
that is. Most recipients almost certainly awarded our announcement the coveted circular file disposition. and expense resembled our own responses to offers that come in the mail to sell us insurance. and pride and confidence in your work versus hired gun certainty or grandiosity. Based on this reasoning. write. sharing useful information versus being pushy. inform. list.
The Delicate Balance
In all approaches to marketing. SECOND EDITION
All this effort did nothing. but the net effect for all this time. “Types of Typical Cases. The balance must be struck between dualities such as generating word of mouth versus hucksterism. and unspecialize. We received a few form announcements from two or three firms about their offerings.104
THE PSYCHIATRIST AS EXPERT WITNESS. The result was tantamount to letting a drop of water fall into a large lake. would you get a straight answer from the attorneys you would want to work for?
Various approaches to building word of mouth are recommended as you develop and market your forensic practice: announce. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. for example. Ordinary advertising in Lawyers’ Weekly. opportunistic.. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter.
. thought.e. an expert’s marketing strategy shifts to generating favorable word of mouth. Support for this theory came from Harvey Research in 1994. word of mouth). is suspect and not reliable as an approach (see also Chapter 4. clinicians) led to forensic referrals: word of mouth.
The Key Approach
As time went on. speak. 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.” in this volume). Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. commercialized hustling for business—or the appearance thereof. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy.
Finally. too little time. you may wish to send a short.Developing and Marketing a Forensic Practice
If the circumstances call for an announcement (which is not common). and send it to attorneys and clinicians. For your clinical peers. Describe those services you can authentically offer. they may think of you at that point.
The information about your availability may be directed to four possible audiences: 1) your clinical peer group. or use it in some other appropriate way. Although your forensic peers may seem to be your competition. in effect. of course. Thus. or other reasons. Alumni bulletins and class reunions are also opportunities to get the word out. If you are moving into a new town. 3) attorneys. hand it out at a lecture. judges may need your services. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. including listing services you are not truly expert in. Avoid any hype. it should be tasteful. Serving as a guardian ad litem (GAL. the GAL may do a preliminary survey of the psychiatric aspects of a case. If you inform your peer groups about your availability.
. and lawyer neighbors and friends who might pass your name along. trifold sheet of fine paper with a brief description of the expert and the services. they may turn away a case because of a conflict of interest. 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. 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. Attorneys whom you can inform include your own attorney. previous associations with the attorneys on the other side. and factual. Opposing attorneys. will see you in action in deposition or trial. Among other roles. Some experts replace the announcement with a minibrochure: a single. polite letter informing local judges of your availability for forensic services. if you have one. the announcement should display the professionalism that you plan to bring to the work. they will be useful to you in several ways. 2) your forensic peer group. informative. First. then reporting to the court. and 4) judges. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word.
Your podium demeanor may convey at least a little about your expected performance on the witness stand. may be helpful in dealing with the media.
Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. Admittedly. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. no one will show.
In our computerized modern age. Beat the Press (2).106
THE PSYCHIATRIST AS EXPERT WITNESS. and media exposure may open you to crank calls. this skill is acquired. but the wounds of experience are probably and ultimately the best teacher.
. which are often seeking a stable of experts to comment on medicolegal stories of the moment. 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. and similar humiliations. such as hospital grand rounds. Finally. the topics of which appear on the screens of attorneys’ computer searches. SECOND EDITION
Listings can be effective as well. One reference. review. both of whom may be potential referral sources. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). try to become involved in local media such as call-in shows. or commentary and have it published. however. ambush journalism. 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. such as clinicians and lawyers. many referrals to psychiatrists come from publications. You will be exposed to attorneys and legislators. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. Although it is useful exposure and a valuable resource to write an analysis. these publications may be explored. Become active in your district branch legislative committees and processes. The APA Public Affairs Office provides some guidance in dealing with the media. Instead. sign up as an entry in an existing lecture series. or established continuing medical education programs. departmental conferences. In my opinion.
some broker organizations guarantee your opinion. In fact. wherein you follow the ancient maxim. Have the site professionally designed with attention to taste. Consider taking on some pro bono work as well. 2. one turn to the Dark Side of the Force. It may then take you years of work to unblemish your reputation. It does not matter if the case is trivial or small potatoes. a point that cannot be overemphasized. place in the profession. no matter how slight the issue. Beware of making or seeming to make extravagant claims for your knowledge. based on your fine performance at the deposition. certifica-
. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. 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. From the absolute onset of your career. modesty. as it were—but the Web site is perhaps the most explicit. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case.” This is a losing strategy.Developing and Marketing a Forensic Practice
For the novice expert. including this one. Do not bend the truth to satisfy the attorney. but you will obtain valuable exposure. by definition. integrity must be your watchword.
What About Web Sites?
In the modern era the use of Web sites has increased for all professions. No case too small. Conservatively stating your incontrovertible credentials (actual appointments. In the same vein. and your course as hired gun may be marked. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. trivial cases allow you to be observed in action by potential employers. and other aggrandizing statements that are. I will work only on high-profile. training. Even minor. Begin your career by unspecializing. widely publicized mass murders. some critical considerations are the following: 1. skills. and interest. If you decide to use a Web site. You will derive no income. Be extremely careful about posting your qualifications. even at the outset. 3. 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. extremely public.
tions. 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. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. You are saying to the calling attorney. Dattilio FM. “I can’t take this case (because of time. Remember to thank your referral sources. Guyant A: Beat the Press. but its importance cannot be overstated: return telephone calls promptly. 2002
2.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). conflict. but I will take it upon myself to find somebody good who can. you are also revealing yourself as a good first stop on the search for a good expert.” Although you are feeding the competition. Return telephone calls are the easiest marketing device and one of the most effective. recall the value of brokering. Salt Lake City. In analogy with clinical referrals. J Psychiatry Law 31:5–19. publications. Building a practice on word of mouth is slow.108
THE PSYCHIATRIST AS EXPERT WITNESS. Finally. including attorneys and fellow clinicians. and effective. at times trying. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised.
. Sadoff RL. American Book Business Press. for referrals. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. etc. 2003 Fulton S. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. specific required expertise).
The issue may seem trivial. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. and demanding of patience. sound. but no other method is as reliable. choose only those experts whom you would be confident to have on your side if you were being sued for something. UT.
CO. WW Norton. Tageh Press. Glenwood Springs.Developing and Marketing a Forensic Practice
Berger SH: Establishing a Forensic Practice: A Practical Guide..
I personally recommend attending the various conferences in diverse locales put on by SEAK. Inc. out of Falmouth. Massachusetts. New York. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. 1997 Feder HA: Succeeding as an Expert Witness. I disclose that I have lectured for SEAK numerous times over the years.
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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.
The author is indebted to Robert I. 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.
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. seasoned travelers may skip the chapter entirely. and opprobrium.D. mockery. or interviews.D.. William Reid. Simon. this chapter will be too obvious and not relevant to your needs. In this chapter. M. As always.. I address some tips and strategies for the expert who is inexperienced in traveling to cases.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. M. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices.
the emerging online travel services (Expedia and the like) may prove useful.112
THE PSYCHIATRIST AS EXPERT WITNESS. and your colleagues. 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. For cases that involve land travel. especially in flight. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. and return that day or the following one. the Internet. the process takes even longer. Still other guides are provided in the suggested readings at the end of this chapter. Try on everything before you pack it. to ensure that it still fits. and one pair of shoes. and general information can be obtained from books. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. cars. Running shoes also allow you to sprint through airports to
. looks professional. and hotels directly and save you much time and stress on the telephone or online. you may make the appropriate adjustments. matches. on rare occasion. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. testify or interview the next day. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. polished shoes for men and women). Alternatively. and is in good repair. especially if you have not worn it for a while. travel agents. Consult with significant others for their opinions if needed. 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. 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.
Some General Recommendations
Travel guides are available everywhere. stay overnight in a hotel or similar setting. Opt for crushproof fabrics and materials whenever possible. Another useful reference is Jet Smart (2).
Time Planning and Packing
As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. These services can book flights. 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.
My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. or 2-hour long-distance calls to your paramour. because some law firms are slow to reimburse hotel and plane expenses).. Until data emerge.
The Ethics of Billing
Bill strictly according to your fee agreement. for one telephone call to the family. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. 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. massages. If you review a different case on the way back.The Expert on the Road: Some Travel Tips for Testifying Away
your connecting flight if you are late. For example. a useful principle is to avoid double billing in any form. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. Seek equitable division of costs for multiple-case trips. do not bill for sleep (you do it anyway). fortunately. If the trial runs longer than a day or so. and for the regular three meals. is addressed nowhere in the forensic literature). It is possible. 1 day at your day rate. 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. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. which are. then. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. for example.
Secrets of Packing
The Travel Suitcase
This device is the traveling expert’s best friend. Separate business from personal comfort. for one or two telephone calls per day to the office to check on things. You have enough to worry about
. but not alcoholic beverages. the literature is relatively unhelpful (the issue of double billing. in-room movies. Avoid checking baggage if you can. rare but extremely stressful when they do occur. do not bill separately for that work because you are already being paid a day rate. you may bill for that time but not for the ticket because the first case paid the whole trip already.g. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally.
It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. with a little applied topology. these roll-alongs often fit either in the overhead compartment or. and cleaning. In psychoanalytic theory. and rubber bands. and creams to quart-size plastic bags. and extra combs. do not skimp or economize on the roll-along suitcase. extra eyeglasses or contacts if you wear them. remedy. Other useful miscellaneous items include adhesive bandages of various sizes and types. you may opt to wear the suit or outfit on the plane and guard it in transit. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. or toiletries case.
Consider taking along a lightweight workout outfit if that is part of your routine. safety pins in various sizes. Current travel restrictions have shifted the allocation of liquids. In general. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. which may also be prepacked. SECOND EDITION
without having your materials for the case arrive in Chicago while you are in Cleveland. What you take should have similar versatility. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. A small. Wear your workout or running shoes on the plane. not to mention the current airline custom of charging extra. but you may wish to experiment with a friend’s suitcase. even under the seat in some cases. light flashlight for power outages and searching under beds for lost items. extra shoelaces. 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. Dopp kit. such as a variety of buttons and threads to match your clothes. decongestants. lotions. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions.
. stain-remover sticks that do not contain toxic petrochemicals. Alternatively. Remember also that your kit should contain items that permit repair. and string. These should include sewing items. a small roll of duct tape. eyeglass screwdrivers and replacement screws. In addition.114
THE PSYCHIATRIST AS EXPERT WITNESS. a small. makeup bag. and pack the rest of the gear. it is indispensable to your successful travel ventures. multifunction “pharmacy” also should be included. It is definitely a basic principle for assembling your kit. the principle of multiple function is one of the basics of a dynamic understanding of mental life.
Whether you call it a travel kit. antacids. and similar medications.
The latter appears at first glance both socially desirable and economical. but you can buy your own compact version. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. as well as extra disks and the instruction manual if not on the hard drive already. or order special low-fat meals. Seriously consider avoiding airline food entirely. procedures. If you have a disability. on very dry flights. experienced travelers can skip this discussion.
Neurotic fears can certainly flower when you travel. You breathe through a filter that lasts long enough. because someone else is paying your way to the location. in theory. although occasionally. testify. First. remember to carry light extension cords and voltage adapters. Besides a small flashlight. I recommend the hotel or motel for several reasons.
Secrets of Staying
If you are unfamiliar with the expert art of “fly in. The traveling expert is sometimes torn between staying at a cold. Almost all modern hotels in the United States have smoke detectors. Second.The Expert on the Road: Some Travel Tips for Testifying Away
If you travel with a laptop computer. I carry a compact “smoke hood. Drink water steadily to avoid travel dehydration. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. you are undistracted by social obligations and family strife or background noise. This item is available through a number of catalogs. try breathing through a moistened towel for short periods. call the airline early to check on facilities.” this discussion will be helpful. institutional hotel or motel and cadging free lodging with friends or relatives in the area.
Secrets of Flying
Consider upgrading to first class to allow you to spread out the case materials for in-flight review. often hooked to a travel alarm clock. fly out. it is more professional to meet with your attorney the night before the
. fails). and special arrangements. but some precautions seem sensible. for you to get out of the toxic smoke and gases to safety.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire.
but not all. If a paper clip or safety pin does not suspend the cloth or towel well. after all. My first move on entering a hotel room. of course. after I put down my luggage. 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. congested.
Secrets of Eating
In traveling to court. you are free to visit friends and family at your own discretion. My second move often is to arrange a do-it-yourself humidification of the room. a situation that can leave you hoarse. hotels provide irons. an essential part of effective testimony. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. wring it out thoroughly so that it doesn’t drip. SECOND EDITION
trial in a hotel room or conference room. nausea on the witness stand also may be misinterpreted. have your martini on the airplane home after it is all over.M. Don’t forget to set the room thermostat to your accustomed household temperature. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. is to make a beeline to adjust the hotel’s alarm clock or clock radio.116
THE PSYCHIATRIST AS EXPERT WITNESS. back up the call with your travel alarm. A simple but effective method is to soak a washcloth or hand towel in cold water. obviously you should eat lightly and stick to what is familiar to you. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. After the trial. and headachy on the stand. Remoisten it as needed. 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. Whether the room’s air system is heating in winter or cooling in summer. It is probably safest to avoid all alcohol during the trip before testimony.
. 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. Some. this is. if desired. Experimenting with culinary exotica is asking for a case of turista at worst. 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. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. the air is invariably dry in most hotels.
the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. and similar relaxants. as noted. stain
. These have ill effects. I recommend it. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. you can have a serious meal without ill effect. When you are up and awake. Catalogs sell portable battery-operated white-noise generators. hot baths. usually described in catalogs as “sound soothers. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. but all the data are not in. spending some time in direct sunlight may be helpful in adjusting your biologic clock.” sleep sound machines. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. When possible. This term refers to sounds containing all frequencies. without aftereffects. including hangovers. or others) at bedtime. Many travelers find it helpful to block out morning sunlight with the drapes. Examples include prescription medications that you need during the course of a long day. the chatter of housekeeping staff just outside your door) is white noise. After court. just as white light contains all color wavelengths.
What to Take to Court
Courthouses are notably lacking in amenities. or similar terms. and with sleeping pills. or even a different time zone. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . benzodiazepines.. Ordinary AM radio static and the sound of surf are two examples of white noise. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. actual memory loss can occur—the last thing you need. also eat lightly. Far better results accrue from sleep hygiene maneuvers. 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.M. breathing techniques. plan your trip to allow time for recovery from jet lag.
Secrets of Sleeping
One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. so you may have to carry some supplies in your pocket or purse. of course. by using either alcohol or sleeping pills (barbiturates.The Expert on the Road: Some Travel Tips for Testifying Away
At court during the lunch break. either by closing them completely or fastening gaping fabrics with safety pins.
Commons ML. Psychiatric Annals 33:302–306. or refreshment. Santa Barbara.: Expert witness travel dilemmas: a pilot study of billing practices. and a headache remedy for the obvious problem. 1994 (An excellent guide to what to take and how to pack it. CA. Miller PM: Expert witness billing practices revisited: a pilot study of further data. J Am Acad Psychiatry Law 26:21–26. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. Celestial Arts Publishing. SECOND EDITION
5. Slater FE. Flying Cloud Publishing. I hope that these tips make your travel easier and less surprising. 1996
. sample wardrobes and general travel pointers included as well. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. 2001 Simon RI. Magellan’s International. Villard.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Commons ML.) St.) Gutheil TG. 1988 (Incredibly detailed. Although some of the pointers in this chapter probably state the obvious. 1998 Gutheil TG.
Greenberg P: The Travel Detective: Flight Crew Confidential.118
THE PSYCHIATRIST AS EXPERT WITNESS. with the emphasis on safety and security issues. cough drops. Jossey-Bass. I welcome your suggestions and favorite travel tips. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Berkeley. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. Revised.
4. CA. 2003
2. or throat lozenges. WA. New York. Berkeley. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes.) Savage P: The Safe Travel Book. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Ten Speed Press.
1. Seattle. et al. CA. San Francisco. J Am Acad Psychiatry Law 29:202– 206. mints. James E: The Secrets of Simple Packing (VHS videotape).
from all evidence. (American Psychiatric Publishing 2002).
. or have taken too much for granted about your background and experience in any portion of this text. M. the courts will continue. I welcome comments and suggestions from readers to correct. decry the expert witness function and voice arguments for its abolition. On the other hand. The better we are at meeting the courts’ needs with ethical. to require our services in increasing numbers. or render this text more useful. which I cowrote with Robert I. consider reviewing the successor volume to this one. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. the reader.C H A P T E R 11
I HOPE this introduction to the challenging yet always fascinating role
of expert witness has been instructive and helpful to you. Although some forces in society. the more we serve this valuable and necessary function. consider first reading the companion volume. That book may fill in some of the blanks. and helpful testimony. expand. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). including our medical colleagues. Simon. The Psychiatrist in Court: A Survival Guide. effective. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. As always.D. If I have made too many assumptions about you. if you wish to take your work to the next level.
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. supplied for consideration. The main points about the form are the use of basic language. and the examinee’s attorney’s attestation that the examinee understands the form (i.e. I read it or have the examinee read it at the start of the interview and answer questions.. is likely to be competent to consent to the interview). clarification that the forensic examination is not the practice of medicine.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.
I understand that I can take breaks if I want to at any time during Dr. I understand and agree that Dr. I agree to give up my rights to have Dr. hurt my case. 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. Thomas Gutheil.122
THE PSYCHIATRIST AS EXPERT WITNESS.” or “update” interviews of me by Dr. Gutheil keep secret what I tell him. Gutheil’s written report or out-loud statements for court may help my case. in connection with my legal case. or have no effect on my case that I can see. and I understand that no one can know which one it will be in advance. Dr. and I understand. . nor will he suggest any treatments to me or for me.D. (“Dr. I also understand that I am not his patient in connection with or because of this interview or interviews. if needed. agree to have an examination by Dr. 2. During this interview or interviews I will be asked a number of questions about myself. the following: 1. I understand and agree that Dr. but if I refuse to give an answer or some answers. and I understand they will be part of the same examination and will follow all the above rules. in spoken depositions (where lawyers ask him questions). 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. Because I am being interviewed in a legal matter. “follow-up. 4. The examination will be one or more personal interviews. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. Gutheil may write that down for the record. I understand that Dr. I understand. Gutheil will not give me any medical or psychiatric treatment. Dr. Gutheil is a physician and a psychiatrist. M. Gutheil’s questions. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. Gutheil will explain or has explained to me.
. Gutheil will explain or has explained to me and I understand that Dr. most of which will be very personal. This means that Dr. the person who has signed at the bottom of this letter. I agree to be interviewed. Gutheil. Gutheil. or out loud in open court in a trial. Dr. Gutheil”)
I. I understand and agree to additional repeat. Dr. SECOND EDITION
Consent for Forensic Examination
by Thomas G. that he is not acting as my physician or psychiatrist in doing this interview or interviews. Gutheil’s interview or interviews. however. 3. Dr.
he/she appears competent to understand it. Any report in relation to my case will not go to me but will go directly to my attorney. of course. I certify that I have answered any questions my client asked about the procedure. Dr. that individual is. a court officer. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Signed. to my assessment. 20
. Gutheil’s retaining attorney. Attorney for examinee Print name Date day of . or the court as provided by law. free to show it to me.Appendix 1: Consent Form for Forensic Examination
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and $ per hour for trial. (“Dr.D. $ for depositions. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. Gutheil. (d)
. at a rate of $ per hour plus expenses.
Standard Letter of Agreement
by Thomas G. and the same due for cancellations that occur less than 72 hours in advance. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. Dr. Gutheil shall be reimbursed for all time spent on the case. rescheduling is at mutual convenience. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. M. in addition. the radical revision presented here has evolved from that in the first edition for the same reasons. Gutheil”)
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). including portal-to-portal local travel (c). with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition.
prorated (k). made out to Dr. irrespective of case outcome (j) or defaulted appearances. and examinations as discovery rules permit. Gutheil’s FID# is . and as a condition for its specific to this travel is exbeing undertaken. including travel by first-class conveyance and appropriate lodging if needed.
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). 3. as an advance against which expenses are billed (p). Gutheil by name (h). materials. (s) Note: Please send all case materials to (address)
. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. 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). Before such travel is undertaken. is the sole responsibility of the retaining attorney or insurer (i). A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. (q) 6. a retainer of $ pected 3 business days in advance. Gutheil will be unavailable for testimony in person during the month of August (f ). The retaining attorney understands that my forensic work is not the practice of medicine. 4. Payment in a timely (g) manner. For out-of-state evaluations or testimony. Dr. Failure to comply may void this agreement except for duties of confidentiality (l). please return one copy to Dr. Gutheil. Dr. Signed. 5. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. any existing balance shall also have been paid 3 business days before departure (e).126
THE PSYCHIATRIST AS EXPERT WITNESS. Please note that because of vacation scheduling. For out-of-state travel. SECOND EDITION
per day 2. Overdue accounts may accrue interest at 6% per annum. Signature below indicates agreement with all (r) these terms.
Your fee is. To cut through nit-picking. m. c.” 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. Because you will be investing a fair amount in the travel costs. If you do withdraw. as it ethically should be. that does not mean you should not be paid for the work already done. others the same. Some experts charge differing rates.” d. attorneys are sometimes slow to reimburse travel expenses for interview. h. Some attorneys. this clause makes that explicit. or trial travel. Working for the client. take a videotaped deposition. Every agreement must have an exit clause such as this one. this statement makes the attorney agree to that possibility. g. f. n. This is a standard rate of interest on overdue accounts and an incentive for timely payment. or trial. I recommend asking for this secondary retainer before travel. j. or a member of a corporation or group practice. If you are the sole proprietor. can constitute a bias. deposition. “portal-to-portal. deposition. This information frees up the attorney to ask for continuance or rescheduling. will throw up their hands in mock exasperation and say. thus. 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). moreover. that this is a formal contract. If the retaining party is relentlessly slow. but what can I do? That client just won’t honor his or her obligations. b. e. If you know when your vacation is. You are initially retained as a consultant. make that clear so that you don’t waste a lot of time swapping checks between payees. it saves everyone time and heartache if you spell it out. i.Appendix 2: Standard Fee Agreement
a. for review. A case decision that goes against the side retaining you is not grounds for nonpayment.
. Doc. dunned for appropriately earned fees. or even retain another expert. l. noncontingent. You must be free to withdraw from the case if the contract is breached. based on their training. the “clock” starts when you leave your home or office for court and stops when you return to office or home. k. You have the right to request timely payment to prevent excessive backbalance buildup. “Consideration” and “agreeing” are trigger words that signal to attorneys. you may decide to withdraw. For unexplained reasons. “You’re right.
making you ineligible for participation with the other side. and ethical incompatibilities. Such attorneys may pay the retainer. identifies the attorney’s understanding that this is not the case. at no cost to the attorney but at lost time and possible income to you. these events do not weaken the contractual ties with the firm. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. 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. or has left the firm. give you no work to do. parallel with the forensic consent form in Appendix 1. Making the retainer nonrefundable tends to eliminate such shenanigans. if the attorney is out of the country. The retainer is not only a means of establishing the contract but also an actual advance against expenses. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. r. ask for their retainer back. You have been sandbagged. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. alas. When this retainer is depleted.128
THE PSYCHIATRIST AS EXPERT WITNESS. some experts simply submit additional invoices. q. legal. s. for example. Moreover. because you did no work. You are here agreeing to accept signature from a different attorney or a paralegal. after settling the case. SECOND EDITION
. The wording here. On rare occasions. has handed the case to another attorney. and. others ask for a second retainer (see also Appendix 3 in this volume).
and report preparation. interviews with family members or other persons. 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.Appendix 3
Detailed Fee Agreement
THE FOLLOWING is an example of a colleague’s more detailed
fee agreement. Any credit balance remaining will be refunded upon the termination of my services. Psychiatric services may include an initial consultation. review of records. This retainer will constitute a credit balance until exhausted. STRASBURGER. LARRY H. if it appears that substantial services are yet to be rendered.D. psychiatric interview or evaluation. If travel from my office is necessary to perform any of these services. 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. the hourly 129
. consultation with counsel. M. Thereafter. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. I may require an additional retainer.
Strasburger. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. M. Diplomate. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. long-distance telephone calls. Please keep a copy of this letter for your records. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. Time spent in preparing for testimony shall be billed at the hourly rate specified above. the retainer discussed above. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. American Board of Psychiatry and Neurology Diplomate. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify.D. literature research. along with a listing of out-of-pocket expenses. and all travel expenses will be reimbursed. photocopying. etc. expert or otherwise. SECOND EDITION
rates will apply to portal-to-portal travel time. court rule. messenger services. prior to my testimony. 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). It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. Sincerely. setting forth the nature of the services rendered since the prior billing. Any excess over the retainer balance is due upon receipt.130
THE PSYCHIATRIST AS EXPERT WITNESS. Larry H. including secretarial service. please so indicate by signing this letter and returning it to me with your check for the retainer. court order. as prescribed by statute. no refund of the retainer deposit will be made. All travel shall be by first-class conveyance. 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. postage. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. Nor shall such failure relieve your obligation to have on deposit. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date:
. I will send you a monthly statement. If the foregoing fee basis meets with your approval.
. Babitsky S. provide at least some information useful for the psychiatric expert. Falmouth. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. MA. SEAK. 2003 Babitsky S.) Binder RL: Liability for the psychiatric expert witness. this has many useful tips on trial demeanor and related issues. National Institute for Trial Advocacy. MA. SEAK. SEAK. All. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. MA. SEAK. SEAK. 2007 Babitsky S. The Psychiatrist in Court: A Survival Guide. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. Mangraviti JJ: How to Become a Dangerous Expert Witness. Falmouth. 2008 Ball D: Theater Tips and Strategies for Jury Trials. Falmouth. 2002 Babitsky S. Inevitably. their quality is variable. Am J Psychiatry 159:1819–1825. South Bend. Falmouth. SEAK. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. 1997 (Though aimed at attorneys. not just psychiatry. however. IN. MA. MA. Falmouth. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. Falmouth. 1997 Babitsky S. MA.Appendix 4
Suggested Readings and Web Sites
NOTE THAT SOME of the following suggested readings cover
the expert witness’s role in general fields. These sources are meant to supplement those provided at the ends of the chapters in this book. as well as those found in the companion volume. 2005 Babitsky S.
Santa Ana.) Gutheil TG. American Psychological Association. 2nd Edition. 1994 Rabinoff MA. useful for checking credentials. New York. 1995 Kwartner PP. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Wiley Law. New York. 2001 Isele WP: Under Oath: Tips for Testifying. 1908 (Purely for antiquarians and those interested in a classic from the last century. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. et al: Expert Witnesses: Direct and Cross Examination. New York. 2007 (Focuses specifically on the testimony phase of expert work. Covise LL. New York. 2008 Rogers R. Williams & Wilkins. CA. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. Baltimore. 2006 Feder HA: Succeeding as an Expert Witness. Edited by Jackson R. 2002 (This is designed as the successor book to the present one. James Publishing. MD. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Adams KM. MA. 2003
. American Psychiatric Publishing. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. New York. DC. at a more advanced level. J Am Acad Psychiatry Law 29:313–318. McClure Company. Pennsylvania Bar Institute.) Dattilio FM. J Am Acad Psychiatry Law 34:482–491. Guilford Press. LRP Publications. New York.132
THE PSYCHIATRIST AS EXPERT WITNESS. in Learning Forensic Assessment. PA. pp 565– 588 McHale MJ. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. PA. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. Routledge/Taylor & Francis. Hillsdale. Horsham. LRP Publications. Commons ML. Simon RI. CO. Oxford University Press.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Danvers. Washington. Diamond. Analytic Press. DC. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. Lippincott. Tageh Press. SECOND EDITION
Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. NJ. Mulligan WG. 1993 Gutheil TG. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. Mechanicsburg.) Gutheil TG. Springer. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. 1993 Dattilio FM. 2007. 3rd Edition. Washington. Glenwood Springs. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias.
Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence.aapl. 1997 Younger I: The Art of Cross Examination. http://www. American Psychiatric Press.SEAK. NJ.html: Another multiple resource site. Section of Litigation. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. with multiple resources. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. Erlbaum. discussions. 2004 (Study guide available since 2006. DC. http://www. J Am Acad Psychiatry Law 35:346–349.reidpsychiatry. Harvard Medical School. Washington.com/forensic/f_psych. Gutheil TG. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. MD. and links. Anderson RM: Mastering Expert Testimony. the national forensic psychiatric organization. American Psychiatric Press. Beth Israel-Deaconess Medical Center. and postings.com: A host of resources by two top attorneys.com: A resource-rich site with articles. Gaynor Publishing.org: Web site of the Program in Psychiatry and the Law. 2003 Simon RI. http://forensic-psych. articles.) Simon RI. Washington. publishing a vast range of information and offering excellent training courses. New York. Shuman D: Clinical Manual of Psychiatry and Law. VA. DC. New York.com: Web site of author’s colleague HJ Bursztajn. MA. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. Washington. DC. Washington. 2007 Tsushima WT. Wiley.org: The main Web site for the American Academy of Psychiatry and the Law. DC. http://tncrimlaw. 1993
http://www. Falmouth. http://pipatl. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. SEAK.Appendix 4: Suggested Readings and Web Sites
Siegert M. links. Lightfoot. A compendium of sources. American Psychiatric Press. 2001
. Mahwah. American Bar Association. All experts should join. and links. 1976 Zobel HB. Disclosure: This author is a founder. Kochansky J: The Complete Psychiatric Examination (videotape). 2nd Edition. WW Norton.
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. interview data. in which the witness.” Deposition Usually believed to be the actual ceremony. Boilerplate Standardized legal language. Competence is decision-specific and usually based on criteria. it has been accepted in actual cases that validate its use. and so on. In case of ambiguity. two or more lawyers. on mainframes) and may be used in attempts to impeach the expert at trial.Glossary
This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. that is simply plugged in to the appropriate place. legal documents such as depositions and interrogatories.” that is. usually derived from statutes. there is no generic “competence. it is usually “court-tested. the criteria for competence to make a will and for competence to stand trial are quite different. consult your retaining attorney. for example. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. Thus in a suicide malpractice case. it may consist of records and documents. the plaintiff is the (live) person bringing the suit. in the context of discovery. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. lab results. the practical and relevant definitions are provided.” it is always “competence for what?” The criteria for the different competencies are often distinct. Competence The capacity or ability to deal with a certain task. or tradition. the person who committed suicide is the “plaintiff’s decedent. Decedent The person related to the case who has died. Instead. such as relatives or executors. 135
.e. In reality the actual deposition is the transcript of the deposition. It is not derived from the facts of the specific case at hand. case law. which will live on in perpetuity (i.
the judge(s) and/or jury. but a psychiatrist. investigating in the field for the court to determine the situation leading to the proceeding (e. says what the attorney wants said rather than objective truth).. and various motions accomplish some of this phase. disability. in “trial by ambush” jurisdictions this step is skipped.” Discovery That early phase of litigation.g. the fetus in an abortion decision). interrogatories.136
THE PSYCHIATRIST AS EXPERT WITNESS. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. Finding See “Opinion. but this is the established term. thus decision maker rather than fact finder. less ordinary procedures might include covert surveillance of a suspected malingerer. or an attorney-psychiatrist team. Depositions.. usually exchanged between opposing attorneys to alert them to your projected opinion.
. The role may include representing an unrepresented party (e. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. The GAL is usually an attorney. borrowed from western and noir fiction and film. may be used as well.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. since the goal of the process appears actually to be a decision.. after the civil or criminal matter is set in motion. The GAL may be thought of as a kind of utility infielder for the court. this limitation constrains the data gathering and the conclusions that may be drawn from the database. Novice experts see this as a misnomer. to visit a nursing home where resides a person whose competence is being challenged) and other duties. in which information is gathered by the attorneys in order to prepare the case. The IME may be resisted by some attorneys. Fact finder Practically speaking. and the like. use of a private investigator to obtain information.e. if so. SECOND EDITION
Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. IME (independent medical examination) An important part of the discovery process in malpractice. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. See also “Trial by ambush. “Hired gun” A term. and other medical contexts not limited to psychiatry.g. challenging the party moving for a particular result.
the expert can retreat when in doubt about what is going on or where the inquiry is going. the expert. the whole truth is often supplanted by “the admissible truth. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. Like other sources of bias. One of the most challenging assessments in all of forensic psychiatry.Glossary
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. and let the chips fall where they may. elaborate dinners and entertainments. sometimes without even informing. The “seduction” may involve flattery. See also “Standard of care. experts should review these carefully for accuracy as to their opinions. because variations from these answers at trial will be used actively in attempted impeachment. the whole truth. “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. retreat to the oath. the oath is a place of safety to which. disliked by almost all parties in a case as well as the general public. Negligence In a medicolegal context. but without actually retaining. the court makes the finding that defines the outcome of the case. its influence should be resisted by the expert. Of course. and widely misunderstood by many of those. The expert offers an opinion derived from the database and training and experience. Interrogatories A set of formal. and the like. In a practical sense. There are several
. the “bottom line. promises of much future work if the opinion in the present case is favorable.” of the expert’s efforts. the insanity evaluation is retrospective. Opinion The final phase. when confusion sets in.” 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. and nothing but the truth. governed by legal criteria that vary by jurisdiction. tell the narrow truth. falling below the standard of care in the care rendered in the instant case. these are prepared jointly by attorney and expert. In addition. 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. the witnesses are to testify in court only with testimony that they can swear to.” In practical terms.
” which the expert must also know. hearings. privilege is narrowly construed as applying in legal or quasi-legal contexts only. by excluding them from the courtroom. which broadly applies to information that should not be shared with others in many contexts.” “reasonable psychological certainty. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. but they cannot by themselves reform the exploitative personality. the standard is usually national but may be local—the “locality rule. Unlike confidentiality. Several jurisdictional variants include “more likely than not. a few find ways not to pay you what they owe. to prevent the experts from hearing other testimony. thus an attorney or an expert might perform a relevant duty for free. The expert should be familiar with the relevant local standard and its definition. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. this term usually refers to service without payment.” “reasonable medical (or psychological) probability. and the like.
. 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. Sequester The separation of witnesses.” Though most attorneys are responsible. administrative law procedures. SECOND EDITION
variations on this ploy.” An expert testifying about a case must be familiar with the relevant standard. 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.” and so on. “get the money up front. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. Pro bono Short for pro bono publico (for the public’s good).” in suggested readings.138
THE PSYCHIATRIST AS EXPERT WITNESS.” “51% certainty. particularly experts. Appendix 4. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. 2001: “The Phantom Expert. See Gutheil et al. the origin of the frequently invoked mantra.
etc. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. competent. not those that come in for review. The image is that of a defendant giving a trivial blow to the head of the plaintiff. a blow that would ordinarily not be expected to cause harm. usually based on criteria. discovery proceedings such as interrogatories. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. not as a valid method of determining one’s standards of acceptance. but the fact finder renders the finding that embodies the “ultimate issue. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them.”)
. Turndown rate The ratio of cases that are. depositions. such as whether a witness should be accepted as an expert for the court. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. and expert disclosures (see “Disclosure”) inform the other side in advance. but the plaintiff has a thin or “eggshell” skull and is severely injured. guilty. 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). In the majority of situations. accepted as meritorious versus those rejected as invalid. are sometimes referred to as “third-party cases.” Experts should refrain from stating the ultimate issue in their testimony. which involve a victim in addition to the treater and patient.” Jurisdictions vary widely as to the applicability of this principle. Ultimate issue The final outcome of the legal process: negligent. The expert proffers an opinion.” or “duty to warn third-party cases. “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. these cases. Among other goals such as saving time. The expert has control only over those accepted or rejected. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert.Glossary
Stipulate To concede or agree to a challenged issue. after review. insane. (See also “Opinion. This rate should be seen as a rough guide. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. Because the usual duty of clinicians is to the patient alone. Tarasoff v.
in the present context.
THE PSYCHIATRIST AS EXPERT WITNESS. literally “to see. SECOND EDITION
Voir dire An expression from the French. the purpose is to allow preparation of cross-examination or rebuttal. to say” but more relevantly. See Gutheil 2007. “The Problem of Evasive Testimony” in Suggested Readings. This may apply to certain communications between expert and retaining attorney. work product occupies a special category of privilege and is usually not discoverable. 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. There are a number of possible causes. Waffling An expert’s rambling. Chapter 4 (reference 11). evasive testimony designed to avoid answering a question directly or at all. Work product A designation of privacy for material that is part of the attorney’s trial strategy. discursive.
63 Blackboard illustrations at trial. 70 “Attorneys’ Guide to Experts. ethical model. 80 Body language. 70 merit of retaining attorney. 23–24 Air travel. 113 Bipolar disorder. 49. 18 Billable time. 9 nonsexual seduction. 16 treater bias. 115 airline guides. 106 Beepers at trial. 105–106 loyalty to retaining attorney. 105 Assumptions. 3–4 Advertising. 62 needed for forensic functioning. 47–48 depositions. 106 American Psychiatric Association (APA). 35 Background of expert. 115 courtroom. 112 first class. 87–88 Admissions. 32. 30–32 misunderstanding of clinical issues. 52. See also Demeanor
. 100–101 Alternative scenarios. 37–38 Ambivalence. 19 hindsight bias. use of. 44. 45. 4. 49. 15 Agency relationship. 17 problems of loyalty and identification. 105–106 American Board of Forensic Examiners. apparent.” 106 Audiotaped interviews. Dress and appearance Attorneys communication with opposing attorneys. 78. 37 Alterations ethical. 68–69 Attire at trial. 77 Bias. 65 fighting at depositions. 4. 60 Addressing judge at end of testimony. xiii. See Ethics informing of availability as forensic expert.Index
Accessibility airplanes. See Clothing. 121 American Academy of Psychiatry and the Law (AAPL). 26–28. 4–5. 115 Alarm clocks. 100 of expert opinion. 116 Alcoholic beverages. 16 work product privilege. 25 Beat the Press (Fulton and Guyant). 59–60 Advances minimum fee. 52. 104 Advocate for truth. 16 meeting with before deposition. 82 negotiations with retaining attorney. 7. 4–5. 61 retainers. 105–106 Analogies and metaphors. 115 meals. 117 “Alibi” issues. 82 of reports. 14 Adversarial context. 24–29 social relationships with. 16–18. 74 Accuracy. 68 honesty of. 82–83 Announcement of forensic practice. 74. 8. consulting with retaining attorney during.
95 Court reporters. 58–59 avoidance by attorney. 38 Conflict of interest. 118 Criminal cases capital cases. 40 Child custody cases. 103–108 Camera. 86–87 Cross-examination. 30–32 “nothing to go on” problem. 23 Clinical material. 77 Change of opinion. 71 Candor. 48–49. 16. 7–8. 30 validity of case. 83 Courtrooms. 85–86 Brokerage organizations for expert witnesses. 83 breaks and recesses during. 73–79. 99–100 Consent Form for Forensic Examination. 65. 28 Correction of answers at depositions. 48–49 involving the insanity defense. 101–102 Crises while testifying at trial. 61. or experts. 82 Child abuse issues. 77 unpacking at hotel. questions about. See Attorneys Countertransference. 137 report. letters to. 17. 64–65 Cough drops or throat lozenges at trial. 108 Browbeating by retaining attorneys.142
THE PSYCHIATRIST AS EXPERT WITNESS. 61 trial. 65–66 Confidentiality breaches as basis for suit. 25 Conflicting stories from parties in case. 4 Class action cases. 121–123 Constraints on time. legal. 70–71. 135
. 13–14. or data. 18–19. 97 Case review. 69 Concentration at depositions. See also Video depositions gazing into the lens. 116 Coaching. 24. 44 nonconfidentiality warnings. example of outline. 81 Communication with opposing attorneys. 81 delaying tactics. 33 scheduling. how to handle in written reports. 33–34 merit of attorney. 107 Brokering a case when unable to handle it personally. 29–40 documents. litigants. xiii. 30 Causation. 113–115 trial appearance. 74 Code language between attorney and expert. 66 Concessions at depositions. 19 Capital criminal cases. 82 Clothing packing for travel. 77. 118 Counsel. 32. 33–34 threshold question. 100 Consultation services. 82 Breaks and recesses depositions. 59–60. 86
Borderline personality disorder (BPD). 116–117 metal detectors at. 85–86 code language between attorney and expert. 47–48 Competence issues. 39–40 Cellular telephones. 62. 14 Carry-on luggage. 113–114 Case name or citation in written report. money. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 33 The court. 5. 14 criminal responsibility cases. 99. 34 misunderstood by attorney. 32 Building a practice. 34 Compound questions at depositions. SECOND EDITION
Complaint. review of. 4. 28–29 Contingent fees.
vast amounts of now stored online. 68–69 breaks and recesses during. See also Interviews. 58–60 inappropriate questions. 34. 4–5. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 26 pauses before answering. 74 Disclosure issues. See Privilege Documents. 59–60. 70 “gerrymandering” clinical data. 65 questions and answers. 58–60 goals of opposing attorney. 84 pauses before answering. 113–115 trial. 8 Double billing. 59–60 assumptions. 58–70. 77 unpacking at hotel. 85 quotes. 113 Dress and appearance packing for travel. 64. 85 Dangerous examinees. 29 Defendant. Reports. 92 Disabled individuals access to airplanes. 47 nonverbal responses. 5–6. 66–67 demeanor of deponent expert. 117 Drugs. 66–67 locking in/limiting expert’s testimony. 57–72. 68 final preparation. See Parties in case Demeanor cross-examination. 76–77 written documentation to give listing of. 62–63 reviewing. 80–82 leading questions. 115 access to courtroom. 88 trial preparation. 68 treatises. See also Confidentiality. 116 Drinking. 65 correction of answer. 135 admissions in. 114
. 61 compound questions or answers. 64 priority. 65–66 consulting with retaining attorney during. over-the-counter. 68 of experts at trial. 64–65 later evidence affecting opinion given at deposition. 91–92 privileged information. 75 Decision to take case. 135. See also Depositions interrogatories. 63 goals of expert being deposed. 83–86 “yes” or “no” questions. 38 of experts at depositions. 87–88 Depositions. 77–79 Departure from courtroom. 31 Database. questions about. Privilege Discovery. 62–63 concentration during. 59 limits of expertise. 85 reasons for. 80–82 of examinees during interviews. 59 past. See Records. 69 Direct examination. 60 malpractice suits. 135. 64 opinions and their bases. 66–67
interruptions. 57–58 nondiscoverable material. 64 objections. 69–70 videotaping of. 68 fighting by attorneys at. Written documentation Doing no harm. 73 use during trial. 97–98 Daubert challenge. 135. 34 assessing. Records leaving behind after trial. 64 language/word choice.Index
demeanor during. review of. 79–80 restructuring. 34 stenographers in. 61. 66 concessions. 64–65 curious questions. 83 trial.
sample. 49–51 examples. SECOND EDITION
Family or friends. 17 special expertise of. 78 Global requests. 80 Flying. 6. deposition and trial. See Fees. 28 Fairness. 107 new facts at trial. See also Written documentation Forensics. See Meals Forensic countertransference. 82 nonconfidentiality warnings. 47–48 cross-examination. 16 turndown rates. sample. doing none. 13–21. 1–3 Experts honesty of. 112–113. 50–51 interviews. 16 marketing a forensic practice. 115–116 Humility factor. xiii–xiv evidence in. 44
. 2 Forms detailed fee agreement. See also Ethics of attorneys. 62 Hired guns. staying with. 8 Hearsay. ethical model. 36 “False memory” cases. 9 Humor. 15 Honesty. 28. 26–28 detailed fee agreement. 113 Fitness as expert. sample. 38. sample. 87–88 Evidence. 78
Eating. 112 Failure of retaining attorney to pay fee. 96 Harm. 6 High-profile cases. 15 altering reports. 80 Fabrics. See Meals Emotional injury cases. principles of. 15 loyalty to retaining attorney. 67 marketing. 14–15 Etiquette at trial. 25 External consistency of story. always soliciting. See also Conflict of interest advocate for truth model. 49–50 Employment relationship. litigants. 95–96. 1 functions. 7–8. 25 Honest advocate. 115 Flip charts at trial. 51–52 Hindsight bias. or experts. 129–130 standard fee agreement. 15 remaining neutral. 115 Feedback. 60 False allegations. 18–19 honest advocate model. 67 Expenses. 28. 75–79. of sexual misconduct. 25 Flashlight. 61. for travel. principles of. See Countertransference Forensic practice. 28. 52–55 History of expert. issuing.144
THE PSYCHIATRIST AS EXPERT WITNESS. See also Hired guns definition. 125–128 travel costs. 75 Ethics. Reimbursement for travel Expert witnesses. 33 oaths. 136 spotting the other side’s. 103–108 Forensic reports. 24 Entrance of judge. 37 Eye contact at trial. 5. See Air travel Food. 44. 113 contact with opposing attorneys. 13–14. 30–32 of experts. importance. 61. 15 social relationships with attorneys. 88 Fees. 32 Good writing. 125–128 Gestures at trial. scholars in. 100–101 billing. 28. 82 Hotels. 38 “nothing to go on” problem. 129–130 standard fee agreement.
106 Letters to attorneys. 46–48 social service history. importance of. 107 Interference of attorneys during interviews. level of scrutiny. 107 lecturing. 38 note taking. 86. 47 standard of care. 45 Lodgings. 105 Judgment.Index
Identification with retaining attorney. 106 listings. 18 Integrity. 36 Internal consistency of story. 116–117 Media coverage and cases. 78 Jargon. 107 strategies. 49 demeanor of examinee. 34 depositions. 52 Malpractice suits. 45 Juries. 98
Laptops. 112 Judges addressing. 45 locality rules. 87–88 Lecturing as marketing tool. 97 to the court. 35 Involuntary gestures at trial. 95 Likelihood principle. 36 internal consistency of story. 45 records. 2 entrance. 79. 34
. 37. 48–49. pros and cons. 38 emotional injury cases. for travel. 137 Insurance challenges. 75 informing of availability as forensic expert. 106 specialization. 112 Meals airplane food. 6 entrance of. 35 retention of records. 79–80 Jurisdiction-specific language. 53. 103–108 announcement of practice. 106 Locality rules for standard of care. 49–50 external consistency of story. suspending. 16 Insanity defense in criminal cases. 99. 37 interference. 6–7. review of. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 18–19. 115 during trial. 86 Malingering. 39 Interviews. 36 Interrogatories. 43–48 creating timelines for. 49. 87–88 dismissal by. 91–92 recording. 57–58. 34–35 plaintiff. 16. 7 Listings as a marketing tool. 137 Intervening causes. See Attorneys Leading questions on crossexamination. 119 Materials. 82 Jet Smart (Fairchild). 83 testimony before. 36 presence of attorney. 84 Leaving courtroom. 37–38 criminal responsibility cases. 34–38 “alibi” issues. 35 order of. 40 videotaping or recording. 115 Lawyers. 45–46. 51–52 Medical records. 37 alternative scenario. 106 publishing/writing. 47 elements of malpractice. See Hotels Loyalty to retaining attorney. 36 nonconfidentiality warnings. 34–35 plausibility of case. 138 Marketing a forensic practice. 35 priority. 75 respect for. 105 ethics.
86 Nonconfidentiality warnings. 15 Objections depositions. 91–92 Privilege. 85 depositions. 65. effect of. 64 Peer review for testimony. 47–48 plaintiff interviews. 24–29 background of expert. 17–18. 67 National Forensic Center. 26 Opposing attorney. 137 depositions. 82–83 Microphone use at trial. 97 communication with opposing party. 40. 52–55 contact with. 68 Pauses before answering cross-examination. 47–48 Outcome of case. 137 Note taking importance of. 35. use of. 50 Preliminary reports. 16–18 clinical and forensic issues. 25–26 Priorities. 34–35 Patience. 44 Melatonin. See Trial preparation Prescription medications. 100–101 Posttraumatic stress disorder. 57–58 trial. 66. consulting with retaining attorney at. 82 interrogatories. 39 vulnerability of plaintiff (“thin skull”). 106 Negligence. 13–14. 64 interrogatories. 25 initial contact. 97
. 137 Negotiations with retaining attorney. not compromising. SECOND EDITION
Online. 47 during interviews. 74 Prior testimony by expert. 74. See also Confidentiality deposition. goals of. 112 Packing for travel. 104. unfailing. See also Web sites storage of past depositions. 117 Pretrial conferences. 49–51 Practice pointers. 65 work product privilege.146
THE PSYCHIATRIST AS EXPERT WITNESS. while traveling. 24 request of retaining attorney. 82 Mitigation of damages. 91–93 Precautions. 45. 57–58 Objectivity. 25 bias. 81 Postreport negotiations. 113–115 Parties in case case name or citation in written report. See Emotional injury cases Physicians’ Desk Reference (PDR). 4–5. 15. 8 Pens and pencils at trial. 14. 117 Metal detectors at courthouses. 71 Oaths. 77 Personal injury cases. 82. 30 Occasions. 88 The Packing Book (Gilford). 26–28 Networking. 97 Preparation for trial. 49–51 Morality. 36 Politeness. See Parties in case Plausibility of case. 24 decision to take case. 16. 54. 58–60 Opposing expert witnesses. 5. 77 keeping notes. questions of. 38 Nonsexual seduction. 118 Metaphors and analogies. 26–28 fitness as expert. 70
Medication issues as basis for suit. 115 Preexisting illnesses or conditions. 138. writing for. 80 Misunderstanding of clinical issues by attorney. 29 fees. 24–25 timing and scheduling. 114. See also Marketing a forensic practice New facts at trial. 69 Plaintiff.
17–18 Self-serving behavior. 138 Standard of proof. 6–7. 49 Sequestration. See Oaths
. 6 Specialization. 31–32. 113 Relatives. 9. 40 social service histories. 117 Social relationships with attorneys. 16 Social service history. 119 Site visits. See also Court reporters in depositions. xiv. 70 Skepticism. Robert I. reasonable medical certainty. 49 database of. 53. 79 Stenographers. 112 Respect. 95–102. 51–52 Quoted passages. 45–46. 47 Socratic method. 100 Recesses. 7. 43–45. See also Malpractice suits Suitcases. 18. 104–106. 3. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 113–114. 28–29 Running shoes. 46 criminal responsibility cases. showing toward juries. traveling with. See also Packing for travel Supplementary reports. 108 written documentation. 112–113 Santayana. 75 Sexual misconduct cases. 97 Rehearsing testimony. 82 Silent treatment. level of scrutiny. See also Written documentation Reputation of expert. 138 Professional meetings. 3 Suicide malpractice cases. 112 Reality-testing. See Negotiations with retaining attorney Retention of records. power of. 106 Psychiatric malpractice suits. 112 Reports. 25 Reasonable medical certainty. 131–133 travel books. See Breaks and recesses Recorded interviews. 115 Rental cars. nonsexual. 34 retention of. 75–76 Seduction. 106 Publicity and cases. response to. 48 Sleeping. 46–48 medical records. 33. 44. 38–39. 24 Publications by expert. 7. 35 Records. 97–98 Supporting data for written reports. 9. 26–28. 14
Retaining attorney. 6. negotiations with. 92. 34 malpractice cases. 83 Retainer. staying with. 6 Scheduling issues. 64. 47 Referrals. 68 Storytelling. 54 Resources for suggested readings. suggested. 108 Roles of expert. 138 Rebuttals. 66 Simon. 40 case review. 82.. 33–34 CATO model for.Index
Pro bono work. 79. 40 Returning calls. 25 Required action. maintaining appropriate. review of. 74 Reimbursement for travel. 25–26 as marketing tool. 54. obtaining in advance. 85 Readings. 131–133 travel books. 91–93 personal conflicts. 81 Sworn statements. 5–6. 15. 93 Seating at trial. 36. 73–74. 138 of witnesses. 107 Standard of care. George. review of. 107. importance of. 99 Surprised expert.
74 Truth telling. 87–88 dress and appearance. 139 Taxicabs. 116 Testimony at trial. 75–79. 39–40 Travel books. 64 for interviews. 80. 117–118 testimony. 25–26 roles of expert. 79–80. 85–86 conclusion of questioning. 74. SECOND EDITION
cough drops or throat lozenges. 112–115 sleeping. 26–28 travel time. 113 examinees. versus expert. 34 for depositions. 77 etiquette at. 78 illustrations. 80 new facts coming to light. 77. 113 Travel service. questions about. 28–29 Third-party cases. 44 Throat lozenges or cough drops at trial. 73–74 practice sessions. 86 cellular telephones. 76–77. 8–9 Treatises. 117 time planning. 51 evaluating. 79–80 timing and scheduling tips. 86. 112 unpacking. 86 pens and pencils. 44. 48–49 emotional injury cases. 77 courtroom. importance of. 118 Time creating timelines. 69–70 Treatment recommendations. 77 breaks and recesses during. 116 Treater. 76–77 water. 85. 92. 116–117 microphone use. 45–46 Types of cases. 74 pitfalls. See Crossexamination demeanor at. 74. 37–38 Trial. 19. 108 wake-up calls. 13. 74 presentation. 139 Type of practice expert has. 81–82 priority. 117–118 Trial preparation. 77 returning calls. 74 Teaching role. 112 Traumas. 49–51
Tarasoff-type cases. See also Cross-examination prior testimony by expert. 74 using database during. 115–116 meals. See also Ethics. 82–83 lunch during. 112–113 travel information. 77. 73–90 beepers/cellular telephones. 60. 8. bringing into. 77 pointers. 87–88 eye contact. 73–74 language/word choice. effect on standard of care. 80 pretrial conferences. marker board. 43–56 criminal responsibility cases. Honesty Turning down cases. 75–76 supplies. 35 keeping track of. 112 Traveling. 74 planning. 80 humor. 78–80 Telephones calls during trial breaks. 87
. 80 language/word choice. 82. 14–15. 86–87 cross-examination. 35 flying. 61. blackboard. or flip chart. 77–79 departure from courtroom. 115 lodgings. 112 Travel expenses. 74 rehearsing.148
THE PSYCHIATRIST AS EXPERT WITNESS. 82. effect of. 111–118 billing. See Meals packing. 118 crises while testifying. 77 what to bring into court. 91–92 seating at. 55.
97–98 jurisdiction-specific language. 104–105. 97–98 supporting data. 117 Word choice depositions. 139 Understanding of clinical issues. 79. 140 Written documentation. misunderstanding by attorney. 97 supplementary reports. 44 White noise. 98–99 conflicting stories from parties in case. 97–98 headings. Reports case name or citation. 35 Visual aids. 140 examples of.” 2. 98 letters to attorneys. 115 in courtroom during trial. example of outline. 43–48 “Ultimate ethical test. 95–102. 74 Voltaire. 64–65 reports. money. 97 principles of good writing. 100–101 preliminary report. 100–101 trial preparation. 53–54 Wake-up calls. 82 Values. 107 Weight to be given to on-site psychiatrist’s observations. 97 occasions. 67 Video depositions. questions of. 99–100 constraints on time. 4–5. 97 interviews/items reviewed. how to handle. 100 criminal case. 116 Water during air flights. 82–83
Word-of-mouth referrals. 108 Work product privilege.Index
high-profile cases. 97 opinion. 100 referrals. See also Records. 77 Web sites. 51–52 psychiatric malpractice cases. 70–71 Videotaped interviews. 99
. 97 conclusion. 70. 74. 98–99 postreport negotiations.” 18–19 “Ultimate issue. 7 Waffling in answers. 101–102 database listing. or data. 96 rebuttals.