The Psychiatrist as Expert Witness
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Harvard Medical School Boston.D.The Psychiatrist as Expert Witness
Thomas G. DC London. Massachusetts
Washington. Gutheil. M.
specific situations may require a specific therapeutic response not included in this book. 2. Forensic psychiatry—United States. W740 G984pf 2009] KF8965. Inc. Gutheil. Expert Testimony. Forensic Psychiatry. Food and Drug Administration and the general medical community. and that information concerning drug dosages.
. Inc. Books published by American Psychiatric Publishing. Expert—United States. The psychiatrist as expert witness / Thomas G. Evidence. VA 22209-3901 www. For these reasons and because human and mechanical errors sometimes occur. Thomas G. p. Companion to: The psychiatrist in court / Thomas G. 1000 Wilson Boulevard Arlington. 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. I. ISBN 978-1-58562-342-6 (alk. Moreover. cm.S. 2. Includes bibliographical references and index. As medical research and practice continue to advance. schedules. Title. II. [DNLM: 1. however. American Psychiatric Publishing. 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. Thomas G. Copyright © 2009 American Psychiatric Publishing. Gutheil. therapeutic standards may change.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.appi. and routes of administration is accurate at the time of publication and consistent with standards set by the U.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Psychiatrist in court.org Library of Congress Cataloging-in-Publication Data Gutheil. Inc. Dr. — 2nd ed.. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Gutheil has no competing interests to disclose. c1998.G8 2009 614′. paper) 1. Gutheil.
. To Shannon. truly the wind beneath my wings.To my children and the hope of the future.
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. . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . 16
. . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . xv
Introduction: What Makes an Expert? . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . . . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . . . . . . . . 5 The Socratic Method. . . 1 The Adversarial Context. . . . . . . . . 5 The Database . . . . . . .Contents
About the Author . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . 8 The Humility Factor . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . . . . . . . .
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
coauthored with Paul S. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. received the Manfred S. and now in its fourth edition. Harvard Medical School. he has taught many clinicians about the interfaces between psychiatry and the law. Gutheil.
. the textbook. Appelbaum.About the Author
Thomas G. Through more than 250 publications and many lectures and seminars in national and international fora. Recipient of every major award in the forensic field. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. Clinical Handbook of Psychiatry and the Law.D.D. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center.. and a Distinguished Life Fellow of the American Psychiatric Association. M. M. 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. he has received local and national writing and teaching awards..
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expanded definitions of key concepts. 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. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. and many a practitioner feels the urge to try out this fascinating realm. additional illustrative examples. From another perspective. Moreover. it provides tedious stretches of waiting and inactivity.Preface to the Second Edition
What This Book Is Meant to Do
Serving as an expert witness involves many paradoxes. an expanded discussion of bias in testimony. xiii
. before experience itself has had the opportunity to provide the most durable and valuable instruction. Such service presents many stresses and equally many satisfactions. other changes in this second edition include: a glossary of useful terms. if you feel shaky about the basics. Often the greatest difficulties in this profession occur at the outset. besides the requisite updating of references and suggested readings. In addition. As an aid to present readers. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. interspersed with frenzied bursts of action. Forensic psychiatry is growing in popularity. in fact. 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. a model forensic consent form for examination. The Psychiatrist in Court: A Survival Guide. that book is a good place to warm up. 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. 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. and cases or principles that I have learned about since the first edition. and at the request of past readers of the first edition.
in part because they represent material never covered in other sources. You who are in that position are also my audience. SECOND EDITION
If your early court experience has not been too traumatic. concrete advice replaces abstract theorizing. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. I hope you find this approach useful. the later chapters may yet prove useful. 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. Thomas G. Best wishes for success in your burgeoning career as an expert witness. M. you. hands-on mentoring and guidance that were not readily available in the past. Indeed. but choosing to go. This new updated edition. Gutheil. attempts to provide some of that practical. for such readers. drawing on developments subsequent to its first version.D. and informal discussion in a user-friendly tone replaces scholarly discourse. whenever possible.
. the novice court goer. kicking and screaming. The more seasoned expert may wish to skim over the more familiar material in the text.xiv
THE PSYCHIATRIST AS EXPERT WITNESS. perhaps— dare I say it—interesting and even fun.
” James T. Harold Bursztajn. Resnick.Acknowledgments
I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. I especially thank “Dr. Hilliard.. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. Phillip J. for extremely helpful critique and suggestions and for many years of superb medicolegal advice.. and Shannon Woolley for their careful review and most helpful critique and comments.D. Ellen Lewy for absolutely indispensable assistance with the manuscript. Stephen Behnke. Harvard Medical School. for permission to use some of his material on writing for court. Larry Strasburger. M. and to Ms.
. Esq. and Ms. to Drs. Candace Love of On-Point Research for valued assistance in compiling resources.
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to provide information and understanding relevant to the legal system’s concerns. More narrowly. an expert witness may review a chart filled with other clinicians’ observations 1
. In this book.CHAPTER 1
Introduction: What Makes an Expert?
AT FIRST GLANCE. the concept of a psychiatric expert witness. that is. even if those conclusions are based on others’ observations. 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. is a psychiatrist who uses particular skills. For example. In the courtroom setting. knowing a lot about a certain topic and having extensive experience therein. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. the question of what makes an expert witness is more complex. clinically defined. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. in contrast the expert is entitled by the role to draw conclusions. Indeed. the question “What makes an expert?” seems
to answer itself: expertise makes the expert. 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. both clinical and nonclinical.
Under this model.. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane.2
THE PSYCHIATRIST AS EXPERT WITNESS. competence. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. 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. I’d want to be treated by this person because he/she makes sense. from ballistics to the temperature of coffee sold at fast-food franchises. What I find bemusing is the fact that. not the ultimate finding that a judge or jury decides.” This issue is discussed further in later sections of this text. However. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. then the judge or jury. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. the expert is to educate the retaining attorney. if I had this problem. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. about matters that are beyond lay knowledge or decision making. some questions can only be answered by a specialist. Indeed. For that matter. such as competence or insanity. Note in regard to the issue of ultimate findings. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. are the very same ones who had retained me on a previous case. opinionphrased descriptions rather than conclusory statements: “in my opinion. and so on. incompetent. As a rule experts should limit themselves to criteria-driven.I do not want someone who [merely] teaches others about it. or malingering. the court system needs expert witnesses in a burgeoning variety of technical fields. the jury is free to accept or reject the expert’s testimony in whole or in part. at times. that is. I also want someone who has clinical experience and is doing that which he/she is testifying about. because what an expert offers is “only” a witness’s opinion. proclaiming their ultimate faith in the jurors themselves. SECOND EDITION
and provide the court with an opinion as to whether the care so recorded was negligent. insanity..
. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. 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. I believe this person. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria..” You want someone who will present in a way that the jurors would be inclined to say this.
some points. although basic. pp. Mozart begins to describe the opening scene of The Marriage of Figaro.
. are so essential to this work that I review them in the following discussions. and throughout this book. Most clinical work occurs in the context of the alliance. causation. and the resulting probabilities.Introduction: What Makes an Expert?
Another scholar. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. is the adversarial context. and 5) argue the case (1). In one scene. The power of storytelling was captured in a movie about the career of Mozart. and an adversarial atmosphere are problems to be avoided. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. conflict between the parties. “Where are the communion pictures?” Pressed for a less cryptic expression. and so forth would have accomplished this vital storytelling purpose. statistics. Despite his doubts.
The Adversarial Context
The court operates under a set of basic rules and assumptions that are unique to its functioning. however. and the one often most troubling to clinicians. The emperor leans forward. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. he has become engrossed in the story. demographics. 3) make sense out of the law. went even further by listing the functions of the expert as being to 1) tell the story. (2. the emperor is initially resistant to Mozart’s novel music. oppositionality. 2) make the fact finder want you to win. or resolved or otherwise put to therapeutic use. clinical entities. syndromes. consider this scene:
In the movie Amadeus. 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. The foremost of these. In this chapter. 4) help the fact finder see the facts. with Figaro kneeling on stage taking the measurements of his marriage bed. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. The highly experienced defense attorney who had retained me was heard to mutter at one point. Showing pictures of the deceased at communion. at family functions. a law professor. surmounted. eyes glowing with interest. 4–5)
Other scholars agree that one of the principal functions of the expert is to tell the story.
must first ask the question. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. Although there may be as many views of the patient as there are team members. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. such as child custody evaluations. both of which reside in every case and every patient or litigant. the adversarial context is one of the “givens” in the situation. Com-
. one loser. you work for the consultee (i. 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.
The Prime Question
Any forensic psychiatrist. files. the court situation is a zero-sum game: one winner. in the forensic setting. The question of whom you work for also will alert you to major pitfalls of bias.e. In other words.e. even if it is a compromise (3). you usually work for the patient. 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. The usual guiding principle in such determinations is “the best interests of the child. render highly complex the question of agency. in the clinical context.. memoranda. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. whether testifying or consulting. Like other consultants. two of the victims of this concept are ambivalence and complexity. in a forensic setting. for whom am I working? Your answer will clarify your location within the adversarial framework. they are not case-related documents and therefore are protected from disclosure. ambivalences may be divided between the two parties in the case rather than felt internally by either. because that position confers greater neutrality and protection for your efforts. In the legal context.” a mandate that may trump other claims on your agency. Note for completeness that certain forensic contexts. In medicolegal work.4
THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION
Compare how treatment planning might occur in the inpatient setting. you usually do not). For example. Unlike the search for consensus in the clinical setting. the retaining attorney or court). and other papers that the attorney generates in the course of litigation. This specialized topic is beyond the scope of this book. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). as well as the usual lack of a physicianpatient relationship (i. I define the term work product to include the notes..
reports. litigants. or basis.
One of the immediate issues to confront the expert is the fact that therapy. 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. convicts. The retaining attorney will guide you in this matter. Warnings are further discussed in later sections about the interview itself. The issue here is the tension. the forensic perspective almost always extends beyond the individual examinee. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. your personal attorney can always give you advice on nondiscoverable matters. including records. As we will see later. Most attorneys know not to include details of their trial strategy in letters to you. and captured as well in the consent form for forensic examination as Appendix 1. of course. it should.Introduction: What Makes an Expert?
munications from the retaining attorney to the expert are generally discoverable. One trenchant reason for this approach is to obtain corroboration or discorroboration. my own or others’ interview notes. lest they be exposed prematurely to the other side. when in doubt. or impression.
The term database is my own shorthand label for all the relevant materials I may read in the course of a case. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. between the “whole truth” and the “admissible truth” (4). Although therapy usually transpires within the patient’s self-reported data. be carefully documented. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. and relevant literature. with exceptions. 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. Therefore. fantasy. correspondence. with some exceptions. defendants. suspects. 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. is private and confidential.
. court-related issues are often matters of public record and public exposure (in open court). later addressed. legal documents. The term also suggests that an expert’s opinion rests on a base. In contrast.
but the Socratic method is one of the mainstays of courtroom procedure. Because a patient in treatment is willingly coming for help. corroboration.
Malingering and Self-Serving Motivation
Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. obvious self-contradiction. experts in court must play by court rules. hearsay-ridden trail by which it comes to the team’s attention.
The Socratic Method
Although expert testimony has been compared to teaching.. be it moral or monetary. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. absent clear delusions. 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. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony.6
THE PSYCHIATRIST AS EXPERT WITNESS. In contrast. The witness should be guided by the maxim: when entering the courtroom. despite the convoluted. fundamental fairness. detailed. In practical terms the expert witness. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. Once again. (3)
Such useful data would likely be ruled inadmissible by the rules of the legal process. and similar signs. or discorroboration
. which preclude admission of certain kinds of data or evidence in the name of justice. Yet the court may be driven by principles of fairness. hearsay. — George Santayana
Unlike the treatment context. the forensic practitioner is wise to suspect everyone of having some stake in the matter. may be forced into limitations on this promise because of countervailing considerations of precedent. do not demand to be heard: answer all the questions and then stand down when dismissed. SECOND EDITION
Half-recalled memories—of what the patient’s second cousin may have said. and often redundant way of developing information for the court and the fact finder can lead novice experts to chafe at its slowness and deliberation. though under oath to tell the whole truth. always seeking out verification.. This painstaking. and the like (4). one is guided by its rules. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. and to maintain an appropriately skeptical posture. prejudice.
All psychiatrists. As a general rule. Other contextual clues about the hired gun are overly candid advertising in legal media (e. including forensic psychiatrists. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). Although some will cry that there are exceptions. or even reasonable psychological certainty). Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires.
The Hired Gun Problem
The so-called hired gun problem continues to dog the field of expert forensic work. we are paid by time criteria. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. makes forensic psychiatrists unpopular with their clinical colleagues. for example. sell time. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular.g.
Reasonable Medical Certainty
Doubt is not a very pleasant condition. honest experts should avoid these approaches to
. For most of us. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. regardless of its clinical or empirical validity. — 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. but certainty is absurd. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. forensic work is a sideline to our clinical focus.. ask about the local variant. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. reasonable medical probability. and leads physicians of all specialties observing. Rather. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. Note that there may be some jurisdictional variation on this point. 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.Introduction: What Makes an Expert?
for all important facts. high-profile insanity cases.
Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced.8
THE PSYCHIATRIST AS EXPERT WITNESS. reasoning. and ethical incompatibilities with serving as your patient’s expert. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database.” in this volume). For various reasons (5–7). the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that
. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. although the clinician is obligated to place the welfare of the patient above other considerations.)
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. First. 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. “Developing and Marketing a Forensic Practice. because these provide a base of financial stability that enables you to turn down cases. summarized as follows (for more extensive discussion of this point. Thus. Often no absolute standard exists by which to measure opinion testimony. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. you avoid temptation to skew your opinion. see reference 5 and the appendix to reference 3). and you maintain your ethical compass direction. legal. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. case materials. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. 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). If a clearly meritless case is offered to you for review. and corroborating data. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. SECOND EDITION
finding work. (By the way. There are complexities in this area that should be addressed. there are significant clinical. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. it is an excellent way to benefit from the teaching of colleagues and to share ideas.
thus leaving the jury free to vote its “gut. not the engine. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. whether because of simple ignorance of the above distinctions. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination.D. rather than the entire forensic database. though essential for therapy.” This provocative image should be kept solidly in mind. Second. Master forensic psychiatrist Robert Simon.
. Third. 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.” Although this last is true in certain respects.” Even when the expert is the only source of data that the jury receives. Indeed. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. From this viewpoint. M. the treater has usually had only the patient’s reports on which to rely. even though this may occur appropriately under legal rules. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best.
The Humility Factor
Finally. treaters called into court may violate the confidentiality of the clinical setting.. in contrast.Introduction: What Makes an Expert?
the treater gives in court. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. constitutes a bias for forensic functioning. Some attorneys report that their only use of experts is to neutralize or cancel out the testimony (or even the mere presence) of the experts on the other side. as noted in the section on malingering above. the wish to avoid paying expert fees that are usually higher than those of treaters. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). the therapeutic alliance. Early in my career. the expert goes in skeptical. Attorneys seem to display a curious indifference to these incompatibilities. 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.
Available at: http://www. DC. August 2.
3. 1998 Gutheil TG. New York. 4. Simon RI: Narcissistic dimensions of expert witness practice. Baltimore. White MS. Depositions.
Ackerman MJ. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Gutheil TG: Clinical Handbook of Psychiatry and the Law. et al: The “whole truth” vs. 2008. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Guilford Press. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. MD. Wiley. 2006 Catto G: Acting as an expert witness. Personal Injury and Other Civil Actions.org/guidance/ethical_ guidance/expert_witness_guidance. Williams & Wilkins. 2008
. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. SECOND EDITION
1.gmc-uk. Am J Psychiatry 154:448–456. Williams & Wilkins (Wolters Kluwer). 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Expert’s Quarterly (Winter): 2.10
THE PSYCHIATRIST AS EXPERT WITNESS. British Medical Journal 337 (#7664). 1997 Gutheil TG. Baltimore. Accessed August 5. Gould JW: Clinicians in Court: A Guide to Subpoenas. 1997 Gutheil TG. Testifying and Everything Else You Need to Know. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. J Am Acad Psychiatry Law 34:14–21. Boca Raton. Washington. Lippincott. Bull Am Acad Psychiatry Law 20:153–162.
6. MD. J Am Acad Psychiatry Law 25:233–247. Kane AW: Psychological Experts in Divorce. 2005
2. 2007 Barsky AE. 2002 Bronstein DA: Law for the Expert Witness. 8. American Psychiatric Press.asp. FL. Lippincott. Lewis Publishers. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Harv Rev Psychiatry1:4–5. New York. 7.
5. 4th Edition. J Am Acad Psychiatry Law 33:55–58. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427. Hauser MJ. 1992 Appelbaum PS. 2003 Strasburger LH. Gutheil TG.
2001 Quen JM: The psychiatrist as expert witness. Bull Am Acad Psychiatry Law 2:119–132.Introduction: What Makes an Expert?
Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. American Psychiatric Press. Springer Science+Business Media. pp 233–248 Rogers R. Edited by Quen JM. American Psychiatric Press. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Gold LH: Textbook of Forensic Psychiatry. in The Psychiatrist in the Courtroom. NJ. 2001 Simon RI. 1994. Hillsdale. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Washington. Int J Law Psychiatry 13:281–307. 2004 Slovenko R: On the therapist serving as a witness. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. 1992 Dietz PE: The forensic psychiatrist of the future. Bull Am Acad Psychiatry Law 15:217–227. Behavioral Sciences and the Law 7:145–180. 3rd Edition. J Am Acad Psychiatry Law 30:10–13. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. 2005 Simon RI: Psychiatry and Law for Clinicians. Psychiatric Services 52:1526–1527. DC. New York. 1990 Gutheil TG. DC. Analytic Press. 1989
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tend to drift unconsciously into a “therapeutic mode.. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. and its results may harm. To prevent such inadvertent abuse or exploitation of the examinee. the ethical expert be13
THE EXPERT faces many challenges in forensic work.. It is a control easily within the reach of every witness—the lever marked “truth.”
The Nonconfidentiality Warning
Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road.[Finally] I realized that each witness chair comes equipped with a stabilizer control.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. particularly an empathically attuned one.” They may forget that this encounter is not therapy.. First. examinees being interviewed by a psychiatrist.” (1. p. rather than help. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. their ultimate goals in the legal process. In this chapter.
if necessary. you are friends with one of the defendants). denounces your integrity.g.
An ethical test for the expert that occurs early in the process is the case turndown rate. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. this case is over and has been turned down. that the firm will not be using you as an expert. impugns your ancestors.14
THE PSYCHIATRIST AS EXPERT WITNESS. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. indicates the intention of explaining your information to the client.) For example. and states. either your threshold for validity is too high or you need to meet a better class of attorneys. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. For symmetry. Rather. scoffs at your qualifications. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. If you turn down most cases you get.. After settling up any monetary adjustments. SECOND EDITION
gins with warnings about the differences between the forensic and clinical interview and. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. who—in the ideal situation—accepts this view. and slams down the telephone. you must consider whether your threshold for case validity may be too low. In a not-so-ideal situation. Therefore. after reviewing. the attorney curses your name. you decide you cannot support the retaining attorney’s position. defensible. 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?
. this case might be called a defense case because the actions of the defendants are. thanks you for your help. You pass this information on to your retaining plaintiff’s attorney. understandably. Turndown rates between 10% and 30% are not uncommon. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. indeed. the turndown rate is the percentage of cases in which. (Note that even if you cannot support all of the claims proffered in the case. 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. If you take every case you review. This term does not refer to those cases for which you simply do not have sufficient time or those for which there is some conflict (e. The warnings (carefully documented.
This model is sometimes called the advocate for truth model. Consequently. the only touchstone is absolute truth as you know it or understand it. say. An author described the special sensitivity to what one can swear to in this way: You are asked. 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.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. and the expert becomes the fully neutral observer and reporter. speculate about. inpatient care. for a particular case outcome). In forensic practice.
Ethics and the Oath
Taking the oath at deposition or trial is another ethical threshold.”
. or a number of invalid or meritless cases. Partisan pressures from the adversary are put aside. they do represent cases in which you have elected not to participate. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. guess. Although these referrals are not strictly turndowns. Nevertheless. 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. you could receive a number of good cases. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). Consequently. only over those you elect to accept. you take nothing for granted. “White on this side.” Once under oath. and so on. This model has been called the honest advocate model.” Your correct answer would be. 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. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. and 2) you answer cross-examination truthfully (see the following discussion). The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. for example. “White. One model holds that once the oath is taken. all of which you should turn down. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. “What color is that house over there?” The novice answers. that is. that position is always acceptable.
. The varying forms of bias are discussed below. that is. this factor would require greater scrutiny of the relationship by the forensic witness. you may come to like. you owe only serious. that is not your problem. but two dimensions of the relationship pose potential ethical problems. might extensive socializing with the retaining attorney—or. you do not owe agreement with the attorney’s position or theory of the case. with whom you have done many a previous case together. Recall that the attorney’s goals are winning the case. yours are providing ethical and valid consultation or testimony or both. You do owe it to your attorney to level with him or her about yourself (e.g. or make whatever use of your opinion that may be of service. The attorney is free to find another expert. If the attorney. “First Principles. First. out of feelings of being loyal to his or her retaining attorney.” in this volume). 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. this identification may compromise your needed objectivity. 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. A pitfall in this area might be called forensic countertransference. discussed further in Chapter 3. identification with your retaining attorney (discussed more extensively in ). but the likelihood of identification bias would surely seem to be greater. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. Extending this idea. similarly. respect.16
THE PSYCHIATRIST AS EXPERT WITNESS. and what you can and cannot testify to under oath.. under the rubric of loyalty. is misreading the nature of the ethical contract between the two parties. and admire him or her. This difference is significant. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. is disappointed that your present opinion is unfavorable. thus. just what does the expert owe the retaining attorney? Strictly speaking. the skeletons in your closet. your opinion and its limitations. 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. As you work closely with your attorney. settle or drop the case. committed quality work. SECOND EDITION
Problems of Loyalty and Identification
The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances.
Similarly. and may add blandishments such as dinners at expensive restaurants and the like. if the countertransference is unmanageable. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. There is no shame in this. p.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. this effort may be termed nonsexual seduction. 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. you may feel unable to examine objectively a child molester. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. This neutral position is highly desirable for that reason. The
. 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. of course. such as overidentification with the judge or the “system. 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.” Note also that. The fact that the position is more or less neutral does not. Somewhat idealistically. If you are a victim of child molestation. an attorney. you are expected to manage your countertransference toward the examinee or the examinee’s actions. 337). Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. as a clinician. bias can be exceedingly subtle. (p. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. 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. many expert biases are not detected either by the adversary system or even by the experts themselves. promises many future retentions. eliminate other subtler biasing factors. for instance. although not common in practice. of course. 33)
However. In this model the attorney lavishes praise on the expert. you should refer the case. The situation does reveal some complexity.
As Table 2–1 indicates. During the cross-examination. and 3) directly addressing bias on direct examination. while allowing each attorney to point out the potential for bias of the other side’s expert. your opinion. Cross-examination is new territory. the advocacy bias. the holes and limits of your side of this case will
. is a universal pitfall in forensic work. Attorney pressures are an expected potential influence to be resisted. “I am biased in favor of the belief that everyone is an autonomous agent. 2) resisting attempts to compensate for possible bias (since attempts to correct one’s own biases may constitute disingenuousness). and so on. here I select only the most common for a brief review. clearing up any dubious issues. SECOND EDITION
The Ultimate Ethical Test
The ultimate test of expert witness integrity is honesty under cross-examination. also threaten objectivity. “I do not believe that every patient who commits suicide is mentally ill or insane by the relevant criteria. but I believe in this case the decedent was sufficiently mentally ill to meet criteria for unsound mind in this jurisdiction” (8.18
THE PSYCHIATRIST AS EXPERT WITNESS. an expert might respond on direct. A competent attorney and expert will have prepared for this stage of the proceedings by reviewing the questions that the attorney plans to ask. On direct examination. when a case hits too close to home. and professional beliefs or ideologies. what you have reviewed. the lawyer will take you through your credentials. Personal bias. anticipating relevant cross-examination. pp. in an insurance challenge. when you approach a case from a particular perspective or school of psychiatry. Finally. the dual role should be avoided.
yes. both pull and push must be resisted.
.” Your retaining attorney exerts the pull of retention. The less admirable experts.The Expert’s Ethical Universe
TABLE 2–1. 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. Such candor may well enhance their credibility. Again.
likely be explored. and the limits of your testimony. while servants beat him with knotted towels. Finally. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. 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. the limits of your conclusions. none of this information should be a surprise to your retaining attorney. the true extent of their opinions. expert testimony is like that. the limits of your data. and their testimony is often unconvincing. the opposing attorney exerts the push of attempted impeachment. the limits of your knowledge. Therefore. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. having become inappropriately enamored of their opinions rather than of the truth. if appropriately asked by the other side.
Gutheil and Simon (6). your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. the limits of your credentials. defend those opinions passionately and fiercely on cross-examination. loyalty. and identification as above. experts can be separated into two categories. p. and the hypothetical situations under which their conclusions would be different. In the process of cross-examination. 261.
Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. 2002 Candilis PJ.
Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 2008 Katz J: The fallacy of the impartial expert. Int J Law Psychiatry 13:249–259. 4th Edition. Washington. Gutheil TG: Expert witness perceptions of bias in experts. J Psychiatry Law 28:449–457. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. 1990 Brodsky SL. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm.20
THE PSYCHIATRIST AS EXPERT WITNESS. Psychiatric Annals 34:260–270. 6. WI. Milwaukee. Prof Psychol Prac Res 33:307–309. Simon RI: Avoiding bias in expert testimony. New York. 1992 Lynett E. 3. Weinstock R. J Am Acad Psychiatry Law 32:70–75. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. Williams & Wilkins. Defense Research Institute. DC. Miller PM: Withholding. 2004
4. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Gutheil TG: Clinical Handbook of Psychiatry and the Law. SECOND EDITION
1. J Am Acad Psychiatry Law 29:336–339. 1983 Appelbaum PS. Springer Science & Business Media. Miller PM. J Am Acad Psychiatry Law 27:546–553. J Am Acad Psychiatry Law 36:195–200. 2. American Psychiatric Publishing. Martinez R: Forensic Ethics and the Expert Witness. 38. 2001 Miller RD: Professional vs personal ethics: methods for system reform. 1992
. Bull Am Acad Psychiatry Law 20:141–152. Baltimore. objectivity and fair compensation. 2001 Slovenko R: Discrediting the expert witness on account of bias.
8. 39 Gutheil TG. Psychiatric Times. 7. pp 33. 1999 Commons ML. MD. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 2007 Gutheil TG. 2002 Gutheil TG. Baker TO: Operator’s Manual for a Witness Chair. Commons ML. 36. 2004 Gutheil TG. December 2004.
5. Bull Am Acad Psychiatry Law 20:163–177.
1987 Schultz-Ross RA: Ethics and the expert witness. Bull Am Acad Psychiatry Law 17:189–202. J Am Acad Psychiatry Law 33:386–389. Hosp Community Psychiatry 44:388–389.The Expert’s Ethical Universe
Norko MA: Commentary: compassion at the core of forensic ethics. Greenberg SA: The expert witness. Leong GG. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. 1991
. Behavioral Sciences and the Law 5:149–160. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 2005 Rogers R: Ethical dilemmas in forensic evaluations. Bull Am Acad Psychiatry Law 19:237–248. 1993 Shuman DW. J Am Acad Psychiatry Law 36:167–174. 1989 Weinstock R. the adversarial system and the voice of reason: reconciling impartiality and advocacy. Prof Psychol Res Prac 34:219–224.
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or some kind of class action). for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. is being treated in a hospital setting. Although you are usually working for an attorney.
. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. prescribe. you should—be polite and supportive to your examinee. forensic work should thus always begin with the question. your employer is less clear. that person is the recipient of your opinions. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. ineffectual testimony.CHAPTER 3
IN CLINICAL WORK. share a copy of your report with the examinee. but you are not required to preview your findings. That relationship is also a source of certain pitfalls of bias. you may—indeed. discussed in the previous chapter and later in this chapter. and compromised working relationship. In the forensic relationship. that is usually clear. that attorney’s client. make recommendations. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. However. considered for examination of competence to stand trial. you still work only for your retaining attorney and. Your duty is to the person for whom you are working. When you examine a plaintiff at a defense attorney’s request. regardless of what is going on with other experts or treaters. you may or may not owe a separate form of allegiance to that attorney’s client. as when a defendant. the patient is your employer. indirectly. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. or perform some other such intervention with him or her. treat.
The issue of not serving as expert when you are the treater is relevant but was noted earlier. This point came up in an actual cross-examination in a distant state. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. In this chapter. or Ms. which—either by accident or. the topic is extensively discussed in the companion volume. though this distinction may be intentionally obscured as a cross-examination tactic.
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.
Initial Negotiations With the Retaining Attorney
Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. refer to those sources. this approach is self-defeating. not your personal counsel. It became clear that the cross-examiner meant my retaining attorney. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. 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-
. informal discussion should be the format.24
THE PSYCHIATRIST AS EXPERT WITNESS. Smith until he or she invites you to call him or her John or Jane. more likely. I was asked. on purpose—he chose to characterize as “mine. “Have you discussed this with your attorney?” This threw me. clinical experience. Friendly. for whom am I working. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. and mastery of professional jargon. This telephone call is far from a mere administrative formality. Watch for this ploy. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. politeness dictates that you call the attorney Mr. If this issue is in question. the term your attorney will be used to refer to the attorney retaining you as an expert. Instead.” implying venality and bias. How you communicate with your attorney is important from the outset. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. The Psychiatrist in Court: A Survival Guide.
but I am willing to become familiar with the issue”).
Your Fitness as an Expert
Should you. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. have you been the defendant in a malpractice suit.. which is usually (but not always) clear-cut. board certification. if you cannot or should not take the case. Therefore. These issues go beyond mere conflict of interest. experience. however baseless? Are you now being investigated by the board of registration for some allegation. the attorney will not have revealed confidential information (the names) to you. take on this case? Do you have some expertise in this general area or in this specific area? If you do not.First Principles
chiatrist actually has some knowledge about. if your aged mother has just died in a nursing home. and so on. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. In general. For example.
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. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. This example is fairly obvious. The attorney can then take or leave this arrangement. 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. as indicated by publication. personally. Note that your special expertise should exist against a backdrop of your general competence in the field. “Look.
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. such cases should be reality-tested for the attorney.g. that is. 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. I recommend hearing about the broad issues of the case first and only then asking for people’s names. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. no matter how unfounded? Do you have a
. I don’t know a great deal about this specific subject. but subtler versions of personal resonance with a case are not uncommon. the hospital. 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.
.g. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. they are all corrupt). are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. not for their time and clinical expertise. If you write a lot. Second. juvenile offenses.. even if the issues are clinically or forensically totally different. 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. As is often the case. attorneys are invisible within the court record. 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. Reviewing your own published work in a particular area is a worthwhile part of your preparation. credentialing problems in the past.. Belatedly surprising your attorney (e.26
THE PSYCHIATRIST AS EXPERT WITNESS. .
. including the speaker. Do your best to address this possibility early.. 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. Finally. for the first time while on the witness stand) is a major expert sin. Fees. the court record chidingly notes. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. Similarly.e. the ultimate beneficiaries. . “Smith failed to plead . or have been retained by one side more than the other? Review this with the attorney. . This issue is further discussed later in this chapter. have taken an opposite position or opinion. who are the strangers in the courtroom. in an economic sense. unfortunately. and similar problems? You must be extremely candid with the lawyers about such facts at the outset.” when everyone.
Time. for instance. the more words you might have to eat on cross-examination. 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.In too many medical malpractice cases. you realize that the more you write. in the preceding quote. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. contradicts your present position. Thus. knows that it was Smith’s lawyer who was derelict. (1)
This quote is interesting from several viewpoints. SECOND EDITION
history of problems in the military. a criminal record (no matter how minor). for example. are there cases in which you have testified on behalf of the other side.
” or “Nothing” (and wait for the attorney to crack.” Yes. Indeed. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. allowing me to refer to a junior colleague. same as you. Check with your peers at similar levels of training and experience to determine what is customary for your area and be ready to say as much. Like the judge previously quoted. Doctor?” The only appropriate answer.First Principles
not the forensic context. meaning no offense. choose a fee that you would not be embarrassed to state. Doctor. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. and hires me anyway. Don’t charge for a 90-second telephone call confirming the date of
. grits his or her teeth. nit pick. or grasps the point. Use timers or check your watch at the start and end of a piece of work and write down the time. I know. Note also that time spent thinking. and try to maintain that rate. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). whether for psychotherapy or expert witness time. I also recommend not “nickel and diming. The attorney either takes me up on this offer. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. First. Therapists who are quite capable of taking an extensive. but you are made of finer stuff. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony.” Other witnesses may take this further: “My testimony is not for sale. since the doctor-patient relationship is not pertinent to the examiner-examinee one. without children bursting in to share their Nintendo triumphs with you). Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. “So. this is a pro bono case for you?”). and organizing your forensic assessment is part of the work. 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. attorneys have timers on all their phones and charge by the split second. planning. this usually means that the client has hesitation or resistance about my rates. I tactfully suggest that.” or “I am paid by the hour. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. is “I am not being paid for my testimony. analyzing. ideally delivered in a calm tone of voice and not through clenched teeth. Second. or challenge the details. only for my time.
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. some of which never
. you are charging for time regardless of the outcome of the case. for instance. Urge your attorney to bring up your fees on direct examination to get it out of the way.e. Perry Mason. at the end of this book. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. The attorneys. when asked about your fees on the stand. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. among others. To novice experts. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. but in my experience. they referred me to small claims court. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). You sell only time.
Roles of the Expert
What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. respectively. or other conflict. it is unfair to your attorney. 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. I reported him to the Massachusetts Board of Bar Overseers. How much work or time should you devote to the case? This depends on your schedule. you can calmly state them without guilt.28
THE PSYCHIATRIST AS EXPERT WITNESS. are free to employ contingent fees. failure to pay is reality. Owen Marshall. 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. It should. but your consultation must be free of investment in any form in the outcome of the case. your fee should never be contingent. Refuse any other arrangement. ideally. basically consultative services.. Ethically speaking. in addition. the organization in charge of attorneys’ ethical issues. even if there is). Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. or for reading a one-paragraph letter. If you don’t have enough time. shame. Keep your vacations in mind. defaulted on payment) by their first attorney.A. You give only testimony. That august body opined that this was not an ethical problem but a business issue or a contract issue. I took my first major “stiffer” to court eventually and received some of my money. when you design your own fee agreement. Then. don’t take on the case. of course. SECOND EDITION
a deposition. and give the dates to the attorney. the good folks on L.
how free from bias or conflict the situation is—finally ask. how you feel about the attorney. You simply may be a consultant to the attorney on the merits of the case at the outset. Will you be expected to testify at trial. Which comes first boils down to a matter of individual preference. defendant. what your skills or knowledge support. nontreatment role is clearer. Do one or the other. You may be needed to evaluate a plaintiff (or a defendant.
The Final Decision
Putting together everything that you now know—what you charge. your consultative. 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 exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. rarely. is more accountable. your attorney. often in orange-crate–sized lots. at some point. or is the matter likely not to go to trial? Are you going to be a reporter. going to testify. Moreover. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. 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. someone who has to generate a written report.
. that role would be ethically incompatible with the objective testifying role. As a rule. or even witness.First Principles
lead to the courtroom.
The Stage of Case Review
Let us assume you have agreed to take the case and that the retaining agreements are in place. 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. that is. an individual client. as a professional. In other cases. for that matter). You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. what your time permits. or will your opinion be used by the attorney to strategize without a report. working for the attorney or insurer is a far better idea than working for the client alone. testator. You may provide rebuttal material for use by others. You might advise the attorney on how to cross-examine the other side’s experts or litigants. The usual next step begins with your receipt of written materials on the case. Among other things. your first task might be an evaluation of plaintiff. If you are.
Does the Attorney Have Merit?
The clear majority of attorneys are unquestionably competent and ethical. even in a consultative sense? In the initial telephone call. of course. the emotional pressure of the attorney’s desperation should not alter your objectivity. However. though you would not necessarily know this. In reality. a behavior that certainly did not seem all that threatening. in relation to which. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. In any case. SECOND EDITION
Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. for that matter. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. followed by review of the documentation. you may be the ninth expert the attorney has consulted. the attorney may be employing you in a desperate attempt to clutch at some faint hope. The point is perhaps an obvious one. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. a tendency to assume you will give the “desired” opinion no matter what the material shows. compared with some other behavior. his dangerousness was the crucial issue. I recommend listening for indexes of venality. There is nothing inherently wrong with this desperation. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. stating that the patient’s dangerousness flowed from his being charged with slashing tires. does the side retaining you have a valid case (or even a case valid in at least some aspects on which decisions about litigation or settlement could be made)? Note that in an ideal world. or a tendency to want to withhold information. the next task is clear.30
THE PSYCHIATRIST AS EXPERT WITNESS. For example. including by obtaining expert consultation. Scheduling considerations may determine the first task. 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). On perusing
. 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. attorneys would call you only for ironclad solid cases in which they have every confidence. Regrettably. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. you must ask the question. does the attorney have merit? As a rule. the minority are the ones who pose the problems.
Obviously. You cannot afford to embark on a course of work with someone such as this particular attorney.” He wondered if that could be equally well expressed by “areas of competence. based on your review of the database. the wording in which your opinion is couched and the substantive alteration of your opinion. such pressure should be resisted. Most ethical attorneys. 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. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. but I emphasized that he and I needed to be clear about the fact that I would testify
. the malignant category. will argue with you at this point. a document often difficult to unearth but essential to the full evaluation. and the arguments fall into two categories. In the second. A delicate balance must be struck between reasonable flexibility about. If he or she withholds or distorts information or lies to you initially. based on the patient’s history of significant violence. however. then you have to expect the same in the future. and the result may be your withdrawal from the case. for instance. therefore. the benign category. 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. Somewhat annoyed.First Principles
the old record. For example. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. Expert witness work is hard enough without bad faith. wants to be certain you took note of a particular record entry or deposition statement. after you have given your verbal report. however. (Note also in this example the value of the previous record. I decided those were near-enough equivalents. In the first. you give your conclusions.) The second red-flag situation occurs when. arguments are the attorney’s attempt to browbeat you into changing your mind. faced with this disappointing fact. I telephoned the attorney and demanded to know why he had withheld this history.” After mulling this over. which happen to be unfavorable to the retaining attorney’s case. the only safe course is not to work with that attorney. in a competence assessment of an elderly woman. the attorney wants to be sure you understand the import of certain data. Another less knowledgeable group of attorneys will be educated by your discussion. I told the attorney that she possessed “islands of competence. 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). 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. Some attorneys.
The attorney asked for major cuts or deletions. and so on. to “go over” my report. Volume II. I could not ethically omit it. Your request should be global. The negotiating discussion moved into argument. He asked me to use the dates of the depositions I had reviewed. shape or form whatsoever. and did not stop until I said. an opposing attorney asked me on the stand when I had received various parts of the database. and so on. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. however. the retaining attorney. finally. and withdrew from the case. multimillion-dollar will contest. In another case. after discussion I accepted that. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. and testify to if asked. This was trivial.” The attorney moved on to other matters. that since I had read it and thought it relevant. in a high-profile. I had prepared a 22-page single-spaced report. in any way. In a variant on this issue. rather than Volume I. in fact. regardless of what may be precluded by rules of evidence and discovery. tactfully. inclusion of somewhat negative evidence would show objectivity. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. moreover. The attorney made a big show of my “concealing” this information. only the final opinion really matters. under the specious rationale that this method would permit seeing the evolution of my opinion. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case.
. Since only the final (or courtroom) opinion is determinative. and I accepted. Although delighted with this level of detail. his senior partner wanted to deemphasize the subject by changing some wording. The attorney said he was offended that I should even think he was suggesting omitting something. One attorney nearly drove me mad by releasing dribs and drabs of material. the remainder of the opinion. wanted. It is important to ask for everything from the attorney. SECOND EDITION
if asked on cross-examination about the relative small size of those areas— island size. in an extended phone call. I told him. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. In yet another case.32
THE PSYCHIATRIST AS EXPERT WITNESS. This suggestion was acceptable. Agreement was struck. hung up. I did not recall because I do not keep that kind of record. this rationale is especially ill-founded. even if some material is irrelevant and other parts are inadmissible. I said I would change nothing. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. This is the final opinion I am giving here and now. “withholding” important data from the jury.
My own approach is as follows. Either undertaking or turning down such a case is a defensible position. Forensic countertransference is further discussed in reference 2. 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. In general. facts. it is up to you. a situation sometimes occurs that requires special mention.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. if you will. This ethical dilemma arises when the attorney says. Recall that a plaintiff can claim anything at first. As you read the complaint. I have found that attorneys for some reason often fail to send the exhibits to depositions. because I’ve got nothing. However. each element of which may be confirmed or disconfirmed by other material in the database. directed not toward the patient or examinee but toward the attorney. Referral to another or an additional expert also may be indicated. 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. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. you are creating a checklist. feel free to use it if it suits your own preferences. and connections that can be checked against the primary record data and flag those in some way.” 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. check the documents you receive against the cover letter to be sure you have everything you should. you should consider some important points.
Reviewing Cases Critically
When the attorney sends you a crate of records and you review them. long pages of deposition testimony drone on about the exhibit. 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. even data of dubious validity. for example. “Look. I think this guy is probably not insane. after your report.
. First. but you can only imagine it because the actual document has not been provided. Second. but I’d like you to do this evaluation on him anyway. I find it helpful first to read the complaint so that you know what the basic issues are. As you go through the documents. This problem is a variant of a countertransference issue. He was photographed doing the crime. look critically for claims.
This permits. the testator. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. Some discretion. or whoever is involved in the case (presumably. A laptop computer for this task may be quite helpful. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. and selection of a safe environment may be required for examining potentially dangerous examinees. I read the medical records and clinical material or the equivalent. if you have not already done so. the depositions or witness reports. or with only the complaint reviewed. 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). cold. I strongly recommend reading large chunks of material at a single sitting. If the appropriate amount of time for your examination cannot be obtained. exert every effort through your attorney to obtain enough time to do an adequate examination. SECOND EDITION
Second. insanity in a criminal context). your interview queries would thus arise directly out of the material. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. you are familiar with basic interview approaches). and be prepared to acknowledge this constraint as a limitation on the data. 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. the defendant. third. The attorneys on either side of the case may limit the interview time available..
After reading the materials. accept it as a limitation. you also may want to review relevant literature on the subject. Note for completeness that some experts like to start by examining the litigant first. advance screening. makes it harder to focus on hot spots of the case or areas of contradiction in the database. including your own. Given the complexity of many psychiatric malpractice cases. you will want to interview the plaintiff. 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. Such an examinee-first approach. perhaps by a paralegal.
. no matter how difficult the scheduling might be. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. for example. the witness. however. At this point.g.34
THE PSYCHIATRIST AS EXPERT WITNESS. you may also request that the attorney’s office create the timeline.
but I strongly recommend opposing their occurrence through your attorney. in one case. 3. For a number of circumstances. attempt to put recording devices out of direct sight (although you should obtain on the tapes them-
. as a rule. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. Inappropriate interruptions and objections. the expert will receive a request to have an attorney or paralegal present during the interview or. inhibit free-ranging inquiry. Examinees commonly play up to the audience or recording device. 2. focusing on making a recording. then to read the database. The fundamental reasons are as follows: 1. the absence of this datum must be factored into the opinion.” was appropriately disconcerting. based on the belief that such an examination can only hurt the case. that side’s attorney may refuse to allow you to do so. If you are unable to prevent the above intrusions. Not uncommonly. However. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. for some experts. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. presumably. and suggestions from the attorney present may contaminate the process. 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. to have the interview audiotaped or videotaped. exaggerating symptoms. For example. an audiotape or videotape of an interview may be constructive. Note that when you are retained by the defense and wish to examine the plaintiff. Jurisdictional rules may make one or all of these procedures mandatory. it is certainly beneficial for teaching and for self-review for quality assurance. although this irritates some examinees more than writing during the interview. then to examine him or her again to clear up matters raised by the written material. be spared this burden. “You wouldn’t let me!. Verbatim material also can be obtained in this way. Examinees who must travel to see you should. unobtrusive note taking probably represents the optimum compromise among choices. alternatively. more authentic) responses to your inquiries. however.First Principles
If the witness lives locally. 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. cuing. it might be effective and appropriate to examine him or her first.” My immediate response. This decision is legitimate but bears consequences. when examining for the opposite side of a case.
This subject is addressed extensively elsewhere (3). a psychiatrist interviewed plaintiffs with an attorney present. distortion. SECOND EDITION
selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. behind the examinee). in the unpublished 1996 case of Lailhengue v. a mass tort in Louisiana. 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. (4. The following are four of the principles that I apply as a generic framework for this purpose.Attorney Larry Cohen (personal communication. .An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. Mobil. be it civil or criminal. If the attorney attempts in any way to cue or coach the examinee. as when the complaint boils down to. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. is whether the case is fundamentally plausible. 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. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. 322)
To offer a structure for this stage of the inquiry...36
THE PSYCHIATRIST AS EXPERT WITNESS.. March.. and so on?
.. “I wasn’t myself when I plotted that elaborate armed robbery”?
Does the subject on the side retaining you present a coherent story. 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. warn once.g. p. but the following vignettes make the point clearly:
For example. Do the deviations from standard of care sound hokey..
The first question to ask of the case. and I want to sue him. a second offense should lead you to terminate the interview and report this interference to your retaining attorney.
observations. however. The notion of the alternative scenario can be essential for assessing civil claims. about the historic English crime. the defendant and chief planner of the robbery:
Judge: On the matter of motive we ask you: why did you conceive. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. the outcome. he had made several outgoing calls during the time period of the alleged molestation. the following dialogue occurs between the trial judge and Edward Pierce. in a sexual misconduct claim later proven groundless.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. or the alleged damages? For example. The phone records aided in challenging the claim by providing a time stamp. remember not to offer any treatment or treatment recommendations to your examinee. she assumed the doctor was not present and could not refute her claim. MGM/UA. 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. If the situation did not occur in the manner claimed. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. Finally. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. even if asked to do so or tempted by medical ne-
. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. or for some criminal claims of insanity.
In the film The Great Train Robbery (Crichton M. as well as disability evaluations and similar tasks. She had apparently established these referents by calling the office and receiving no answer.
This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. how might it have occurred alternatively? Is there another way of explaining what happened. 1978). or statements of others? Was either the plaintiff or the defendant out of town on a reasonable alibi at a critical point when negligence was claimed? For example. whereas the arresting officers and other disinterested witnesses describe a calm and rational person just after the crime? Do other parts of the total database present corroboration or discorroboration of the claims. such as sexual misconduct.
cessity as treatment issues emerge in the interview. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. First. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. 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. she had plausible answers for all my questions. the court). As you are interviewing the examinee. you will interview the subject (plaintiff. please sit down” but before anything substantive has been said:
Before we start. as noted early in this text. Only when I subsequently read her deposition did her entire
. Note the fully intentional structural resemblance of the above paragraph to informed consent. and others) as part of your exhaustive review of the database. but since I can only be useful if I am objective. my testimony may help your case. defendant. you are attending to his or her demeanor and its relation to credibility. and you must keep several issues in mind. and if you do not. And finally. or have no visible effect on your case—only time will tell.
Fitting Together the Interview
Commonly. or in an open courtroom. Do you have any questions about what I have told you so far?
If the person has questions. The relationship is not a medical one. you can ask for a break (water. answer them as best you can. I am entitled to make note of that. restroom) at any time. there are some things I need to inform you about. move on to the substance of your interview. compare the consent form in Appendix 1. the other side of the case. recall that anyone can really be fooled.38
THE PSYCHIATRIST AS EXPERT WITNESS. that is. although I hope you will do so. and treatment offers are inappropriate. hurt your case. in both civil and criminal cases. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. I have been retained by (your side. if not. in a deposition. possibly with reporters present. what you say may come out in a report. such as informing the examinee which side has retained you. Her emotions were strong and appropriate to the content. Other warnings. unlike what you may be familiar with from other doctors or therapists. Is the patient convincing and plausible? Do the words match the music. Second. You will be challenged to weave interview data into the totality of the case. you do not have to answer any of my questions. seem to be called for out of fundamental fairness to your examinee. what we talk about here is not confidential because I am not your treater. Third.
Besides serving as a valuable lesson in humility. especially when they themselves. Jones did Y and the plaintiff did Z. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. the case was highly instructive: interviewees can be extremely convincing. For example. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. on the other hand. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. but did that deviation cause the damages. because of their psychopathology.First Principles
case fall apart. it only means that you’re being conned into thinking that you’re not being conned. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. a defendant may be mentally ill. Smith did X at this point. because the defendant is not causally responsible for what happened earlier. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. particular plaintiff vulnerability for which the defendant must be held responsible. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. Similarly problematic is the matter of intervening causes: “Dr. The plaintiff ’s failure to take those remedial steps does count against him or her. believe deeply in their position. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms.” In the civil system. 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
. the preexisting condition must be deducted from the damages. Such distinctions are extremely significant in the hard monetary realities of the legal case. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. but then Dr. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. but those efforts may fail or be misdirected and may even make things worse.e. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions.
The Causation or Connection Dilemma
In many forensic cases. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness.. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume.
all case materials except your reports. 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. What portion (usually. they may serve you to recall the case at a later point for research or publication purposes.
. Further research may reveal other promising approaches (6). and your interview notes. DC. if any. or incident. 2. what the results were of subsequent events. or 2) return the materials to the retaining agency. 1994 Gutheil TG. then is sexually abused by a treater. event. Or. 2002 Gutheil TG: Reflections on coaching by attorneys.” there may be subsequent posttrial motions. 2003
3. with permission. work by Pittman and Orr (5) on differentiating serial trauma shows promise. J Am Acad Psychiatry Law 31:6–9. and then has other symptoms or more of the same symptoms. Kirby v Ahmad. keep the latter indefinitely. SECOND EDITION
were of a particular deviation. If you are discarding case materials. mistrial claims. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. In addition. and so forth that require revisiting the materials.
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. two major approaches apply: 1) shred or have a reputable company shred the paperwork.40
THE PSYCHIATRIST AS EXPERT WITNESS. American Psychiatric Publishing. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Another good rule is to discard. 63 Ohio Misc 2d 533 at 534. 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. and what the exacerbations were of preexisting conditions.
1. appeals. Washington. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. Even if a case seems “over. because they would be hard to replace.
Bull Am Acad Psychiatry Law 21:37–52. Baltimore. 2005
. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. New York.
6. J Psychiatry Law 24:3–25.
Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Feinbloom RI. 1993 Bursztajn HJ. J Am Acad Psychiatry Law 33:158–175. Guilford Press. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. et al: Response bias in plaintiffs’ histories. 4th Edition. Families and Physicians Can Cope With Uncertainty. Williams & Wilkins. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). 5. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. et al: Medical Choices. 3rd Edition. 2008. 1997 Pittman RK. 1993 Deaton JSD: Toward a critical forensic psychiatry. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Williams CW. Edited by Rogers R. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. New York. Otto R. 1991 Lees-Haley PR. Zasler ND. 3rd Edition. & Hall. Routledge.First Principles 4. 1990
Appelbaum PS. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. 2007 Borum R. New York. New York. MD. Assessment 4:321–324. in Clinical Assessment of Malingering and Deception. Chapman. Brunner/Mazel. Lippincott. Medical Chances: How Patients. Hamm RM. J Am Acad Psychiatry Law 31:232–238. J Psychiatry Law 21:33–76. 2003 Group for the Advancement of Psychiatry. Brain Injury 11:791–799. Guilford Press.
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every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. for example (the most common claim against mental health professionals). More practically. Generally. 3) injury to the patient. once you know it has already happened. The discussions within this chapter should be considered an introductory survey. 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. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. 2) breach of duty.
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. in this chapter. than was actually so before the event in question occurred. 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.CHAPTER 4
Types of Typical Cases
TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. this bias means that the outcome of an event appears as though it had been far more foreseeable. you already know the person is dead. and 4) proximate cause.
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,
It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. a post-it. plaintiffs. and others. The intrinsic problem is that the deposition usually takes place long after the incident occurred and certainly after litigation has been initiated (a problem that potentially biases or distorts the issues. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. This notation can be on a separate sheet of paper of similar notes. the expert may draw conclusions from the record alone. an underline. On some occasions. after the records. “This is so clear and memorable that I will naturally recall it later. nor are the queries necessarily posed the way you would do so. you are seeking consistency and credibility. When reading the deposition. Next. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. opposing experts. but depositions consist of attorneys’ questions to various parties. There is something of a translation burden on you to read between the lines to determine the issues. of what this record entry contradicts or supports in the deposition. or it can be a highlighted entry. you read the depositions of witnesses. the next time you read this document for deposition or trial may be 7 years away. or a folded corner of the page. make some sort of notation each time you read through the record.
. for example. of your thoughts and reactions. 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. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. or whatever. To save yourself reading everything from scratch each time. you may be tempted to say to yourself. of any queries or signs of missing data that the record generates to be checked later or elsewhere. as different things may strike you on subsequent review. In the process of reading. any forensic document) without making some sort of notation of what is significant. these may not necessarily be the questions you would want to ask. defendants. a marginal scribble. Because keeping a medical record is itself part of the standard of care.Types of Typical Cases
the tests ordered. you may have to pose your own questions to the parties. through your retaining lawyer’s permission and intercession. of course). I find it valuable to look at the social service history. if present. The point may seem obvious. 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.” However. as a separate document.
Of second-rank importance. statements of the arresting officers. but still relevant. in my (and almost everyone’s) view. In those jurisdictions where the issue exists. and so on. data gathered at the time of the alleged act. it is inappropriate to call or write directly to the opposing attorney.48
THE PSYCHIATRIST AS EXPERT WITNESS. are the most significant. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. litigant. the more helpful it would be in forming your opinion.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. or expert. To read critically. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. Is this defendant someone who seemed to show
. These would include witness and victim reports. is historical material. you can be drawn into the prose by the unfolding drama therein recorded. exert the effort to stand back from the process. a case wherein the defendant had or has a major. Doctor. while reading a deposition. The appropriate response is. friendly approach into letting your guard down and discoursing freely on your opinions. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. you may confront the classical poles of the issue. namely. remember to consider diminished capacity as an intermediate condition. what do you think about this amazing case. These unethical conversations usually have an informal tone: “So. eh?” Presumably. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. Because of the flow of material and its often fascinating content. Out of the entire panoply of available material on a criminal responsibility case. On occasion. weighing the logic of the deponent’s responses. you are lulled by this informal. The truly challenging case lies between these extremes. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. 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. your attorney’s confidential trial strategy. For example. and records of any treating clinicians from points close in time to the alleged acts. “I think you should talk to the retaining attorney.
Criminal Responsibility Cases
In cases of criminal responsibility. 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. SECOND EDITION
Although the more information gathered.
Evaluation of Emotional Injuries
In contrast to the interview for a criminal responsibility case. In one case. I find the interview for an emotional injury case to be of primary value. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. an injury from which he recovered rapidly without lasting effect. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. malingering is especially common and problematic in this assessment. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. the cause of the crime. 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. the result of the crime. The plaintiff who claims that his or her major posttraumatic stress disorder (PTSD) and all of his or her subsequent emotional problems were caused by a tiny plastic bottle of vodka striking him or her when falling out of an airplane’s overhead compartment might raise some issues of proportion. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. The interview also gives you a chance to assess what might be called a sense of proportion. All the interview data must be fitted to the totality of the database. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. The novice expert should become familiar with useful publications on the subject (7. as with all forensic evaluations (6). although mandatory and irreplaceable.8).Types of Typical Cases
for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. some on
. the interview in a criminal responsibility case has the least power of all the data collected. Finally. 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. for example. and so on. a plaintiff drank from a chemically contaminated bottle and burned his mouth. 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. Because of the seriousness of criminal penalties. a surprising number of individuals avoid treatment.
This history may represent the plaintiff ’s “thin skull” (i. too. The response “My attorney told me not to” conveys its own obvious message. The shopper then may sue the store for harassment and consequent emotional harms. The Startle Response That Wasn’t
A plaintiff had experienced a documented mugging and was suing a company for inadequate security. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. He claimed to have full-fledged PTSD. 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. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. I
. A question you should ask your interviewee is. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. SECOND EDITION
their own accord and some when given this advice by their attorneys. however.50
THE PSYCHIATRIST AS EXPERT WITNESS. Not only might these provide a context for the injuries claimed. preexisting vulnerability. as a result of the mugging.. and startle responses. 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.e. For example. History. I had to interview him in his home because he claimed to be phobically homebound. “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. 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. may be relevant. The interview took place in his basement recreation room. only to find that the goods are legitimately accompanied by a receipt. Such a search can be embarrassing and humiliating to anyone. with intrusive flashback memories. in regard to which the defendants must “take the plaintiffs as they find them”). Next to the small table where we were sitting. 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 they may also be relevant to assessing damages or preexisting conditions. you again often encounter the previously described problem of factoring out the effects of serial trauma. In this situation. avoidance. Finally. especially idiosyncratic history. 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.
that is. the alleged malpractice. he would have said calmly. and. fellow passengers. then you get the case. On the surface of his story. however. One of my cases raised this issue. or crime has generated publicity first. dying. the former passenger was revealed as a serious. but at incredibly high levels. had no signs of trauma whatsoever. which the average member of the public really doesn’t understand. the plaintiff or prosecutor can say anything. This case also illustrates the maxim. The Case of Cockroach Harm
Can infestation by cockroaches be a trauma? At low levels.Types of Typical Cases
knew this because. he saw a jagged metal edge and below that edge. without warning. therefore.
This observation was potentially valuable and worth recording. the nose of the plane fell into the harbor. Initially. you may be asked to review a case that has been extensively covered in the media before you have been retained. and did not dream. had been in the front row of seats just behind the break in the plane. He gave the impression on interview that if you fired off a . An apartment dweller sued her landlord for failing to respond to the infestation. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. not totally probative. the case certainly seemed meritorious in theory. 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. On detailed examination. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. In a famous incident. stoic fisherman. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. As the “moving
. This passenger. on careful inquiry. who. He slept like a log. looking straight down past his toes. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. unimaginative. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. There is a fundamental asymmetry about media coverage in almost every case. it turned out. don’t assume—examine. yet the observation is valid. usually not. of course. He was strapped into his seat. I myself jumped in my chair. It is.
The Story of the Stoic Fisherman
This case addresses the question of whether all traumas are traumatic.
At one point or another. ate like a lumberjack. injury. it seemed to me that this incident would induce PTSD in a stone statue.357 Magnum close to his ear. perhaps so. to get the actual data. the jury ultimately decides. Boston Harbor with freezing. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on.
plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove.
Spotting the Other Side’s “Hired Gun”
The hired gun problem is a cross borne by the forensic professions. there is no case until it is brought. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. None of this trumpeting means anything. A plaintiff can say to the media. SECOND EDITION
parties. Ninety-nine percent of the time. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. for example. until it is proven in a court of law. Therefore. for example. consciously or unconsciously. you have to be alert to this potential biasing factor and be aware of the media asymmetries. but this principle may be readily overlooked in a media frenzy.” in this volume provides more reliable methods of publicizing your practice. Some attorneys may try.” the attorneys have to create the case from scratch. the defense attorneys cannot answer the media’s questions. selling testimony instead of time. In malpractice cases.) Another stigma of the hired gun is the counsel of perfection. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. 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. By doing this. but so do a number—perhaps a greater number—of venal witnesses. Even though you may try to tune out the media. pushing the case for all it is worth. in hopes that some of that public will later become jurors. “McDonald’s has an obvious duty to weld on the covers of coffee cups with Krazy Glue so that people can’t hold the cups in their laps. of course. The defense attorneys must say “no comment” each time. (Chapter 9. however. because they don’t want to give away trial strategy. rip off the covers in moving cars. “Developing and Marketing a Forensic Practice. and spill hot coffee over their thighs and sue McDonald’s. to influence the public powerfully in advance. In short. you simply may be reading your newspaper before you are asked to consult on a case. the plaintiff and prosecutor inevitably bias the public’s perception.52
THE PSYCHIATRIST AS EXPERT WITNESS. 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. the standard references the average reasonable
. lest your review should begin with a one-sided perspective. 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).
” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. but malpractice litigation hinges on what is required by the standard of care. 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. “If the care had been adequate. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. Some experts believe that physicians are never wrong and always justify whatever the physicians do. The real issue is: does the standard of care require more. Another variation on this theme is. it’s a very serious situation.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. 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.” This testimony is a classic hired gun claim.” Many “good ideas” theoretically might have contributed to the patient’s care. Anyone always could have done more. Waffles are evasive. in the real world. whereby the hired gun whips a standard out of thin air to justify his or her position in the case.. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. The hired gun often advances a perfectionistic standard as though it were the average. but no one lives real life like that. 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. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. I personally have never heard of or read that standard anywhere.
. Indeed. For example. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. the counter to such claims often begins with the phrase “Well. 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.. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. An even more malignant twist is the made-up or artificial standard.
Getting the feel for how the waffle works takes a certain amount of reading of case material. that this is a patient with some history of a. and that is frequently the hallmark of the hired gun. goes all the way to [another city]. It certainly should have been considered. 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. a reasonable history. the mental state and what’s gone on in that patient’s mind is very uncertain. 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. an emergency petition ideally would have been. he gets frightened. specifically. he should have been [that is. The entire answer took four full deposition pages. but. and where I believe the standard of care was breached was that the patient. of unpredictability. then committed suicide. took some blood pressure pills one time in [city]. More to the point. but that is the answer to a different question. but this excerpt is representative:
The standard of care in my professional opinion was breached in that once the patient left. reasonably would have been.
That was the answer in toto.54
THE PSYCHIATRIST AS EXPERT WITNESS. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. Is that a yes or a no? In fact it is neither—it is a waffle. rather than ideally. there is a lot of despair and a great deal of thought disorganization in the patient. we don’t know whether he stops or doesn’t stop and get [drug] or not. it seems nearly impossible to extract the actual opinion from the thicket of prose. he has taken in despair 10 lithiums some years back. actually. In the following example. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. a patient had escaped from the hospital. SECOND EDITION
Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell.
Note how that witness actually avoids responding. I am not in a position to tell you that that would be the only choice. 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].
Note that this entire chunk of testimony is one run-on sentence. Also note that the failure to consider a valid option indeed may constitute negligence. an hour before that or less signs a 3-day statement and then just disappears.
Int J Law Psychiatry 6:317–329. 3rd Edition. with impunity. Brodsky A. et al: Decision-Making in Psychiatry and Law. 1991 Fischhoff B: Hindsight. Williams & Wilkins.
In fairness. DC. and that includes they would be safe within or without the community. Edited by Simon RI. which makes sure the patient is safe within a structured environment. Science 211:453–458. MD. Bursztajn H. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. a trend of such waffling answers in deposition does set off my hired gun detector. Conceivably. 1975 Tversky A. we may be dealing with an incompetence issue. Shuman DW. 1981 Gutheil TG. 2. 3. note that one cannot.
7. Kahneman D: The framing of decisions and the psychology of choice. Finally.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. for better or for worse.
5. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. foresight: the effect of outcome knowledge on judgment under uncertainty. Bursztajn H. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. American Psychiatric Press. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. II: clinical uses of legal standards in the interpretation of subjective data. Guilford Press. I: malpractice prevention and the use of subjective data. Int J Law Psychiatry 6:331–350. 1983 Bursztajn H. 4. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. J Exp Psychol 1:288–299. Yet. Washington. 2002. I would prefer never to assume malice when incompetence would serve as an alternative scenario. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. Baltimore.
. New York. we must consider another possibility regarding the above examples. but that doesn’t mean that it’s without supervision. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. Gutheil TG.
Gothard S. 2007
Binder RL: Sexual harassment: issues for forensic psychiatrists. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. insanity. Psychiatr Clin North Am 17:439–446. Meloy JR. 2nd Edition. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. et al: Detection of malingering in competency to stand trial evaluations. psychiatry and the law. Psychiatry 1:26–28. Psychiatric Services 50:767–773. 2004 Knoll J. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11.
THE PSYCHIATRIST AS EXPERT WITNESS. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. 2005 Simon RI. Legal Studies Forum 9:41–53. Washington. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts.” J Am Acad Psychiatry Law 35:112–117. 1999 Gutheil TG: Fundamentals of medical record documentation. Viglion DJ. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. DC. Washington. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. 1993
. Law and Human Behavior 19:493– 505. 1987 11. American Psychiatric Press. American Psychiatric Press.56 8. Gutheil TG: The problem of evasive testimony: the expert “waffle. J Psychiatry Law 28:5–18. Bull Am Acad Psychiatry Law 21:23–36. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. Bull Am Acad Psychiatry Law 20:409–418. 2000 10. J Am Acad Psychiatry Law 34:215–223. DC. 1995 9. 1992 Gutheil TG: A confusion of tongues: competence.
preparing for what to expect from the various witnesses and documents. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. 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.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.
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. the attorney will likely write the actual prose of the 57
. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. In both cases. Note that some jurisdictions practice “trial by ambush” without expert discovery. if any. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. Under some circumstances. From the viewpoint of the expert. Attorneys probe and define the limits of their cases. there is the period known as discovery.
even worse. either from clinical evidence or experience or from facts in the database. If you have never given a deposition or you feel a bit shaky about the procedure. or some combination of the three: getting your opinion. For example.
. In addition. SECOND EDITION
answers for you. I advise you to withdraw from (or refuse to take) the case. This approach saves you from having to retract misstatements on cross-examination. It is critical that everything in your interrogatory be something that you have already decided you are able to support. guided by your input as to what you expect to testify to at trial. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. your attorney will advise you as to what requests for information or documents will be objected to or refused. review Chapter 5 in the companion volume to this book.
The second major area of discovery is the deposition. 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. reasoning that they can always modify their opinions at trial when the right questions are asked. Opposing attorneys usually follow one of three agendas. The Psychiatrist in Court: A Survival Guide. without retaining you at all. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). On occasion. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). that is an attorney’s function. read every such document before it is turned in. attorneys sometimes ask you for your tax returns of the last 5 years. the interrogatory is sworn testimony. Do not attempt to decide what is or is not objectionable yourself. based on his or her interpretation of the rules of evidence. If you discover this to have occurred. the expert. hyperbole hurts you. and painting you into a corner. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or.58
THE PSYCHIATRIST AS EXPERT WITNESS. However. it is always unethical. 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. you do not want to be associated with this attorney. obtaining admissions.
however. scheduling problems. Attorneys also stress that the deposition is their one chance to find out what you have to say. the plaintiff. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. a witness’s deposition or medical record that you had not seen before your own deposition. to empty your wordhoard. Of course. the attorney is not averse to discovering precisely those points that will help his or her side of the case. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. This discovery function is a completely legitimate task and one with which you should cooperate fully. for instance. On the other hand. and deadlines may dictate this suboptimal condition. Just answer the question. during the course of the deposition. taken before the entire database has been acquired or reviewed by the experts. time considerations. as the Anglo-Saxons phrased it. but not ideally. depositions are occasionally. and so on. This ploy usually can be defused by your attorney. This information may or may not trigger a supplemental step for you in the form of an interrogatory. When you subsequently receive. 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). as a way of ensuring that your opinions may be brought out at trial. a telephone conference. The attorney can then prepare cross-examination. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. and so on. In this latter context. 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. select rebuttal witnesses. over and above what has been conveyed in reports or interrogatories. admissions and concessions of points or
. if any.
The second major agenda for the deposing attorney is to obtain from you. 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. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. or a full-fledged repeat deposition. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. the police. who is in turn obligated to inform the attorney on the other side of your new opinion.Discovery and Depositions
Getting Your Opinion
First. but this is a subintention within the larger discovery framework. the defendant. you are ethically obligated to so inform your attorney. the attorney.
Indeed. 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. fairness. The answer was no.e.
Painting You Into a Corner
The third common agenda for the deposing attorney is to paint you into a corner. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. The points may relate to guilt. so that your opinion is constrained or limited in a way that decreases its impact. or damages—the entire gamut of forensic possibilities. Truth. and accuracy (3). attempting to get you to describe what you would do rather than focusing on what the standard of care requires. You are locked in to that testimony. insanity. conceptually.
Your Goals for the Deposition
One scholar has described the witness’s goals as truth. In a wrongful commitment case against the hospital. of course. When you later give testimony in court. to kill coworkers.
A patient was committed because of threats. even though it was the preadmission history. however. any contradiction is obviously damaging to your credibility: “You swore this now and that then. he denied to the admitting physician that he had any violent intent. negligence.60
THE PSYCHIATRIST AS EXPERT WITNESS. is the final standard. of course. although the history.. your) side of the case. based on paranoid-sounding content. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. many attorneys would view themselves as highly successful in this effort if they could only dilute the force of your opinion or obtain agreement with a point that is or even sounds close to a concession. not the mental status by itself. much was made of this testimony. On arrival at the hospital. that justified the admission. under oath. His mental status was not particularly demonstrative of symptoms of mental illness. also under oath. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. that is. what are we to believe. raised many possibilities. 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. competence. This procedure elicits sworn testimony. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance.
. At trial. Accuracy addresses the clarity of your vision in relation to the known facts in the case. For example. SECOND EDITION
views detrimental to the other (i.
this also takes a toll on the court reporter. another deposition date can be scheduled. The expert should clear a full day for the deposition to be on the safe side. If you do not go home after a deposition feeling tired and drained. focused. Rather. if more time turns out to be required. Unfortunately. hoping to hit the key points if only by accident. Get enough sleep the night before the deposition. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. Still others. aware of the serious weakness of the substantive aspects of their case. several factors urge clearing substantial blocks of time for deposition. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). More details about this necessity are discussed later in this chapter. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. will spend hours inching through the expert’s credentials.Discovery and Depositions
You should state that you want the written record of the deposition to do justice to your views. Occasionally. A small number of attorneys attempt to wear down the expert by sheer passage of time. as noted above. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case.
Some Practical Points
For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. intense concentration sustained over hours is hard work. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. Prepare for this. your opinions (and their limitations). Beware of the natural tendency to dissociate during droning questioning over prolonged periods. it is an essential part of the evolution of a case and thus your role in it. looking for dirt before even addressing the instant case. To do your job. alert. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. you were probably not paying sufficiently close attention.
. try to eliminate distractions. however. you must be rested. 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.
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. and vigilant at all times. and your planned testimony.
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. yes. which I codirect. let me answer all three components. 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. but it is quite risky and may compromise clarity. therefore. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. SECOND EDITION
Listen to the Question
Make sure the question you are answering is the one you were actually asked. his act could
. And the third part of your question is. so you were negligent. A more effective answer might have been. warning.62
THE PSYCHIATRIST AS EXPERT WITNESS.
Note. I am serious. in the following example. On rare occasions. the case manager’s lack of understanding might be negligent. they have to enter into a dialogue with their patient. First. 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. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue.] Answer (by case manager): I don’t think I would agree with that. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. I don’t—I wouldn’t agree with you there. ask that it be broken down. Second. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. If there is the slightest doubt. “The patient gave no sign. no. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. Question: So. so you were negligent. or you knew and didn’t act. If the question is compound or complex. it is serious. in order to determine competence. to be an appropriate way of determining competence in the clinical situation. or evidence of a propensity for violence. 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. you can give a useful compound answer to a compound question. yes. ask to hear it again or have it read back.
Question (attorney for staff member): Knowing what we know today. The following example illustrates that you may be playing with fire when offering compound answers:
In addition. from a previous shift—is universal practice. It is unlikely. 5 years and hundreds of patients later. [The witness sets her own standard of care. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. Gee. of course. and too extensive an answer to deposition questions.
Question: Did you observe [patient] attending those meetings. For example. When seen. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. The deposing attorney inquired. “In a vacuum. any good nurse does that. you write down what you have observed. that the witness specifically remembers such a detail. the patient manifested rapid press of speech. vulgarity.]
Yet another deposition tactic is what I call gerrymandering the data. “I don’t recall.Discovery and Depositions
neither be foreseen nor be prevented.] Answer: Right. right. or did you make that entry based on information given to you by others? [These are. and grandiosity. in a vacuum. not the individual element.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis.
. or weaken certain conclusions (4). “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. a patient with apparent bipolar disorder challenged an involuntary commitment. the answer. I sure hope I saw him because I usually don’t write things unless they are true. [This is not an answer to the question.] Answer: Gee. social obnoxiousness in various ways. did not constitute sufficient evidence of bipolar disorder (although. Note that an excellent and self-contained answer to such a question or line of questions is. not the only possibilities. Her answer ignores the fact that the record does not always note the source of the clinical data. of course.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. too discursive. moreover.” would be perfectly okay.”] Question: Is that the procedure in which you make notes. Clinical data also can be cut into discrete segments to attempt to refute. Obviously. challenge. no. not what others have told you? [The attorney tightens that very screw. which might be used against her nursing colleagues. the witness should decline to answer yes or no to such a question. making a chart entry based on what you were told by other staff —for example. paranoia. testifying 5 years after a suicide. reveals the hazards of too effusive. The following excerpt of testimony given by a naive fact witness. the totality of symptoms did so). But this witness has set a standard for herself: “hope for truth.
Recall that the written transcript is the durable version of the deposition.” reflect a moment on why the time frame might be important in relation to that particular question. and so on. Also remember to listen carefully to the objection. and the importance of speaking slowly. instruct you not to answer. each speaker should finish before the other begins. cannot be quoted out of context. a garbled record from too-fast speech wastes everyone’s time and money. incomprehensible questions. shakes. but sometimes they do so deliberately to distract you or to break your concentration. Speak slower than usual. and other myoclonic responses. terms. in essence. drugs. Attorneys may sometimes interrupt your answer. The Psychiatrist in Court: A Survival Guide. not your glib response in the deposition room. Correct any errors.64
THE PSYCHIATRIST AS EXPERT WITNESS. If any of these summary phrases do not trigger recognition. The pause also allows other attorneys to object. immediately correct
. usually accidentally. shrugs. in the belief that your pause means you have finished. (See also Chapter 5 in the companion volume.
Deposition answers are drawn from a surprisingly shallow pool.” or a short narrative response that contains the question so that the response. Some key points made in that volume are the hazards of guessing.” “I don’t know. and carefully for the stenographer. or you might infer something useful from the type of objection posed. They are. lack of time frame.” “I don’t recall. insist on a time frame. your attorney may be trying to call your attention to something. Insist on finishing your answer to your satisfaction. SECOND EDITION
The Pregnant Pause
After the question is asked. in effect. If your attorney says. not only for the spelling of your name but for contact after the deposition for questions. the trap of double negatives in the questions. “Objection. nods. pause a moment.” “no. 3. Be careful about overlapping speech.) Your answers must be verbal and aloud. and the like. whose written record will be the actual form of the deposition in all future contexts. Pausing allows you to replay the question in your head and to think about your answer. who cannot take down two simultaneous conversations and produce a clear record. “yes. Other useful basic tips include the following: 1. review the corresponding discussions in the companion volume. Spell unusual names. If your concentration slips and you give an answer that you later believe was wrong or even misleading. because the stenographer cannot record winks. Do not tolerate this interruption. 2. Overlapping dialogue is awkward or impossible for the reporter. Giving the stenographer your business card before the deposition is a highly useful courtesy. clearly.
In a suicide malpractice case. 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.6]. Second. the doctor might answer: “Well. . . the deposing attorney may ask.Discovery and Depositions
it on the record. Therefore. Therefore. To err is human. . for example. Two points about this problem should be kept in mind. the deposition may be paused for that consultation. exercise this option. because no two fractures are exactly alike..” (3. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. Therefore. where you are retained by the defense. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching.. . . if you are concerned specifically about a matter of privilege that may govern your answer. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. he could accurately answer in the negative.)
When to Throw It Away
In my consultative experience. “Doctor. but I can’t say that any of them were [sic] precisely like this one.” Of course. However. Baker makes an excellent point about the precision of an answer in the following excerpt:
The opposing lawyer may ask: “Doctor. but leaving the error on the record means having to retract it on cross-examination.If I said that. I tell a lie.To tell the truth. this may be phrased as when to throw away the “throwaway” questions. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. F8–F9)
Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. 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.. . would you agree that a patient’s sui-
. No. I’d be lying. When in doubt. (The question of coaching is more extensively addressed elsewhere [5. As a deponent witness. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. the entire deposition takes place under oath and under penalty of perjury. pp. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. First.
thinking about dinner and work to do later.” Wait to relax only after the stenographer has put away the machinery. Your retaining attorney may also get into the act. but you know enough not to get involved in that “thing. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. by the way. an attorney may look ostentatiously at his or her watch and say.66
THE PSYCHIATRIST AS EXPERT WITNESS. but the lack of the note did not cause the suicide. With an encouraging smile the attorney looks expectantly at you without saying anything. The attorney asks a question. have some water. of course. When the answer is that clear. and move on. may attempt to get some off-the-record insight literally in the doorway. throw it away. and we’ll be done. still. having inexplicably found his or her second wind. Subjected to the silent treatment. make the concession. just one more thing”—contain vital material. “Just a few more questions. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. influenced by the TV show Columbo. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. not unlike some patients in psychotherapy whose doorway pauses—“oh. on the record. the novice witness relaxes and loses focus. now begins to fire rapidly at the witness.” At that point. Doctor. Quibbling over the possible exceptions or equivocating in some way helps no one. The moral here.
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. It is not the defendant’s negligence that is at stake in this situation but your credibility. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. and you answer it. in the colorful argot of the national pastime. Remember that the failure to write something down may be below the standard of care. check your watch. is “It ain’t over till it’s over. Occasionally. wait until it gets ridiculous. an attorney.
Blows After the Bell
After a deposition has been going on for a while and you have maintained your concentration throughout.”
The Silent Treatment
The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. SECOND EDITION
cidal ideation should be recorded in that patient’s record?” The answer is yes.
This method sometimes involves carefully answering the question that the attorney should have asked. For example. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. they often fail to realize that they do not have forensic evidence to back up those notions. that we can’t isolate ourselves with notions of “I’m not part of our society.”
The Limits of Expertise
Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. “I don’t know” or “I don’t remember” is a fully appropriate answer. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can.and the answer to that question is .Discovery and Depositions
Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. Some questions are curious because the attorney appears to be flailing at. Responding to such flails is a challenge:
Question: In that case [of suicide in an alcoholic man]. 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). but I’m in favor of sensitivity. the subject matter. and this response is perfectly appropriate. as is “That is outside my area of expertise. 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.. The only valid answer is that those questions are outside your area of expertise. 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... rather than asking about. No expert is expected to be an expert in everything or to remember everything. make sure you include the question in your answer on those occasions so that no one is misled. therefore..” in a manner to ignore those feelings. I find your question a little confusing..” Avoid the narcissistic trap of “I can answer anything. “I understand you to be asking me.. using categorization. if you’re grossly suicidal and you have access to guns and drugs and alcohol.
Note how the first question was a total loss and had to be rejected completely. and answer that part.”
the parties are really the parties in the case.
The deposing attorney may ask. or facilitate calm negotiation.
. Clinicians may be tempted to call on their clinical skills to temper violence. meaning that you assume that the documents are what they seem to be. threaten to go before the judge to plead their points. occurs rarely may throw the novice witness: a roaring fight between attorneys. clear.” as it were). In the specific malpractice context.68
THE PSYCHIATRIST AS EXPERT WITNESS. and far less friendly and instructional than it would to a jury. this implies arranging coverage for your patients should a crisis occur. but your belief might interfere with your detection of negligence in this case. more boring. the next question will be coming your way. and so on. A situation that.” This position of timeless patience puts the onus appropriately on the attorney to move things along. careful speech that may be more formal. after which the expert examines for evidence either way. “I can continue until midnight. for example. should that become necessary. stand up in their chairs. mediate the debate. no matter how generic or basic it may seem.” This assumption is dangerous because it suggests bias. If the admission note turns out to be a forgery. There are good hospitals out there. I know that’s a good hospital. “Well. you will make it worse. you assumed it was a medical record in good faith. This fight is an attorney-to-attorney matter. you will be addressing him or her in slow. so I assumed that they knew what they were doing. That is as it should be. fortunately. The two sides. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. authentic or merely theatrical. As noted. SECOND EDITION
The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. clear. Because the stenographer (and not the jury) is your audience. “Did you make any assumptions about the case before you began?” You may be tempted to say. and you might well know some of them. In one deposition. unfailingly polite. The only vital difference is the way in which you speak. Your attitude should convey. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. more technical. firm. heretofore quiet and almost appearing bored by the proceedings. The only assumption you should make is good faith. Do not do anything. never losing your cool. scream at each other. When everyone is through. more pedantic. stay seated and keep quiet until it is over. that is not your problem. 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. and demonstrate other regressive behavior.
Novice experts. or article) is authoritative in the field or in the subject of the current case. Some experts respond that the DSMs are not authoritative. competent. 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. merely official. this is a matter of risk management for the pharmaceutical companies. then. note whether you agree or disagree in general with the stated points. Comparably. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. Most modern books and articles have multiple authors or editors. have their limits. Alternatively. and innocent until proven otherwise. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature:
. including those parts which conflict with your testimony. In one limited sense. desperate for stable islands of consensus in the tossing seas of uncertainty. both sources are “authoritative”: PDR contains the actual package insert information about drugs. Moreover. However. no one wrote a previously published book or article with the exact case in mind in which you are involved. chapter. Remember. inescapably.Discovery and Depositions
Failure to begin from that essentially neutral position may suggest bias. After reading the entry carefully.”
In the course of a deposition. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. For example. may imitate the attorneys by overvaluing these texts and ignoring their limits. 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. you cannot take the position that no text is authoritative. to make an informal clinical diagnosis. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. yet the clinical diagnosis and treatment still may meet the standard of care. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. In a criminal context. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. But both. of course. the parallel assumption would be “Sane. and DSM gives the formal criteria for diagnoses.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. the examining attorney may ask you if a specific text (book. but ask to be shown to which one the attorney is referring. the disclaimer at the front disavows its applicability in many forensic contexts. these publications are not uniform in authoritativeness.
record notes. consult your own attorney. SECOND EDITION
When quoting the literature... summaries. and you may have to furnish copies to opposing counsel. this conversation is protected. In contrast. Many attorneys anticipate this problem and send only bland correspondence. (8. In some cases. review your files as diligently as if you were going to trial. 571)
Final Predeposition Preparations
Before the actual deposition. actually visiting a site may be important. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. Obviously.. Frankly admit if anything has been removed from your file..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. but this is not your problem. check the accuracy of any numbers (9). be balanced and accurate. it is wise to review—and if necessary. Under some circumstances. The latter may be privileged. You must exercise some care in these discussions as they may be discoverable. laboratory values. Also. or “cheat sheets” (i. Your attorney then can communicate with the retaining attorney. and so on so that you can buttress all your conclusions with specific elements from the database. some discuss details of trial strategy in their letters to you. rehearse—the details of the links between your conclusions and the facts. p. The usual audience of the standard deposition is the stenographer. Above all.
The Video Deposition
A modern wrinkle on the procedure is the video deposition. If you are really unsure about something. remember to go to bed early.e.70
THE PSYCHIATRIST AS EXPERT WITNESS. whose transcript will endure and be used for any impeachment possible. you will need to review a wide array of information. statements. In addition. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. police reports. Any notes. well before the deposition. Meet with the attorney and review the issues. in the video deposition. the camera is
. Arrange to do so with the attorney sufficiently early. let the attorneys determine whether it is discoverable. especially if details remain unclear or if over time the clinical condition has changed or evolved. Give both (or several) points of view if they exist. outlines or summaries for quick reference) may be subject to subpoena for the deposition. you also may want to meet one more time with the attorney’s client before the deposition.
the deponent expert should always ask for a personal copy to review in preparation for trial. you should try to direct your gaze toward the camera lens. and must beware of inappropriate gestures and personal bodily attentions. In the current economy. At least one copy of the transcript is returned either to the court reporter. The video deposition presents a number of possible pitfalls. 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. this time in a permanent record. not at the ponderous. instead of—your personal appearance in court. Remember to keep your language level. representing the jury. “irresponsible” as “responsible” are small changes with profound results. and the deponent signs under pains and penalties of perjury. the expert may wish to retain a copy for teaching purposes after the case is over. but under some circumstances the notarization can be waived. but errors can creep in.
After the Deposition
Always ask to read and sign the deposition. who may see the video displayed in addition to—or. and pedantic level of the ordinary deposition but in basic. Recall that omission of a comma. When you receive the deposition transcript.” and rendering. you are under constant scrutiny. the only vehicle) for the expert’s testimony. or the deposing attorney for distribution to the parties. jargon-free. read it very carefully. juror-friendly. If the expert is known to be unavailable for the trial dates. My personal favorite is when the phrase. As in the trial described in the next chapter. the video may also serve as the vehicle (in this case. Most court reporters are extremely good at their jobs. This approach risks eventually being papered out of house and home. the retaining attorney. careful.
. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office.” 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.Discovery and Depositions
the audience. If the deposition has been particularly instructive or noteworthy. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. at times. say. checking for errors and typos. of the word “not. trial-suited English. “It’s an us-and-them situation” was rendered “It’s an S and M situation.
SEAK. 1983 Gutheil TG. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. 1993 Malone DM.
6. Falmouth. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 39–40. Baltimore. 1987
. Gutheil TG. 2005 Suplee DR. Vols 1 and 2. J Am Acad Psychiatry Law 34:18–22. Falmouth. 36. 1982 Gutheil TG.
5. Woodruff MS: Deposing experts. MD. 4. The Practical Lawyer 39:55–63. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. MD. 6th Edition. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Bull Am Acad Psychiatry Law 10:17–27. Current Psychiatry 7: 25–28. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 1999 Babitsky S. Simon RI. Baltimore. 2008 Rice B: Malpractice: how to survive a deposition. Child Abuse Negl 17:571–572. Willliams & Wilkins. MA. 7. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. The Practical Lawyer 33:69– 78. Lippincott. 8. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Williams & Wilkins. 9. Mills MJ: Legal conceptualization. Defense Counsel Journal 4:174–179. South Bend. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. IN. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial).
3. J Am Acad Psychiatry Law 31:6–9. WI. Milwaukee.
Babitsky S. Med Econ 82:45–48.72
THE PSYCHIATRIST AS EXPERT WITNESS. 2007 Gutheil TG: Reflections on coaching by attorneys. SEAK. 2003 Kaplan HI. 1996
2. 2001 Baker TO: Operator’s Manual for a Witness Chair. National Institute for Trial Advocacy. Simon RI. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. MA. Defense Research Institute. legal fictions. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. 2006 Gutheil TG. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. SECOND EDITION
1. J Am Acad Psychiatry Law 29:313–318.
The Expert in Trial
BECAUSE ONLY ABOUT 6% of all cases ever go to court—the
rest are dismissed. I addressed the six Ps of trial preparation. pled out. 1. Planning. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. For the expert. review that chapter. The Psychiatrist in Court: A Survival Guide. 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. I review some of the basic courtroom procedures. examining the companion volume. If you are uncertain about the guidelines for trial preparation. the same six Ps should be reviewed but with a slightly different emphasis. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. is recommended as an orientation. If you are testifying away from home. For experts who have spent little or no time in court.
In Chapter 6 of The Psychiatrist in Court: A Survival Guide. and devising means of locating key passages in the database quickly. Preparation. For the expert witness. In this chapter. and they are the subject of this chapter. 2. 73
. Nevertheless. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. settled. trials do come around every so often.
Pitfalls. the relevant literature. parking arrangements.
6. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. location of restrooms. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. If you have a disability. Confirm travel arrangements and other details. It is not enough to know the database. and what the emotional climate of the courtroom is. The pretrial conference is probably one of the most important stages of preparation for trial. the contradictory evidence.
. Clarify and confirm your travel arrangements. Insist on this conference if the attorney is equivocal or resistant to the idea. what the judge is like. the unknown issues. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Presentation. and the data relevant to the other side of the case.
THE PSYCHIATRIST AS EXPERT WITNESS. the floor of the courthouse on which the courtroom is located. and the expected cross-examination.
3. practice sketching any visual aids you will need for the courtroom blackboard. Define the limits of your testimony. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). Build in contingency plans for the possibility that the trial extends into the next day at least. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration.
5. you need to know through choice and practice how you will convey your opinion to the jury. On cross-examination. Review the weaknesses in your opinion. and all such details. the location of the trial. 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. Practice. Most of these matters are best handled on direct examination where some measure of control can be exercised. and select useful examples from your experience to make central points. what previous testimony has been given. and your past experiences. Pretrial conference. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. Consider taking a taxicab to local courts to avoid parking hassles. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. Even more distressing. You should rehearse ways of expressing information to the jury. You also need to hear how the trial is going. your publications (especially those relevant to this case).
7. Clarify in your own mind how you plan to deal with questions about your fees.
Before going into the courtroom. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. The topic requires more extensive discussion (1). 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.
Preparing to Go On
Many courts sequester witnesses. named for the plaintiff in an important U. Supreme Court case.e. its methodologic reliability. this kind of potentially valuable hearing and screening device can also be abused (2).. 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. Once in the courtroom. and whether the testimony will fulfill the legally required expert function in the court. where the jury will be and what
. the best approach is to exercise care about the methods used to reach conclusions. that is. Wait in the public seats until actually called to the stand. experts are not allowed to be present in court for the testimony of any other witnesses. which are sometimes in obscure locations in older courthouses. rise for the judge’s entrance. Such a hearing.S. From the viewpoint of the expert. particularly experts. and to ensure that recognized approaches to the subject matter are chosen. much valuable information can be gained and the tone of the room determined. you will find it valuable to locate the restrooms and telephones. but if you are the only one standing. 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. to be able to articulate the bases and reasoning behind those conclusions. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. When you are allowed to hear the testimony of other witnesses. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). may occur prior to trial (occasionally. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. Regrettably. sit down.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.
and 3) you may become lost in excessive data. 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). SECOND EDITION
the room looks like from the hot seat). The expert should determine which of these two approaches is more suitable. if needed. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. having the whole database on the stand permits greater support of your testimony with specific data from the documents. The downside is the need to remember a vast amount of detail and to recall where. Note again the importance of having and practicing a plan of organization. tabs. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. because his or her opinion is being given from memory.g.
What to Bring
Experts and their retaining attorneys vary in whether they prefer. a particular citation is. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. 2) as noted. Key documents might include my report and interview notes. My own preference is to strip down what is brought. while the experts are testifying. in an often extensive chart or deposition. Recall that in almost every case. the opposing attorney cannot search through them for something with which to impeach your testimony. and ensures the accuracy of your recollection by direct verification. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. Each preference has its pros and cons. When no documents are before you on the stand. yellow self-stick notes. or your own table of contents devised for more extensive documents. 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. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. only a copy of the expert report that is already in evidence or only a curriculum vitae). Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court.. On the other hand.76
THE PSYCHIATRIST AS EXPERT WITNESS. The expert appears more confident and knowledgeable about the case. the attorneys will have it). essential medical records
. dog-eared pages. Note that some anxiety is normal. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. even for experienced experts. as are all the substantiating data.
some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. in the sense that you are usually under observation by someone—the bailiff. Arranging for a cup. highlighting marker. eccentricity. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. It is unclear whether either strategy is superior to the other. Stick to the conservative business mien. if you must. or carafe of water is an excellent idea.. and similar data. Do not wear or carry your cellular telephone or beeper. A handy pen or pencil. the bored juror. 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. 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. I take to the stand a one-page table of contents (i. or if you must. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt.e. the defendant or
. Avoid either ostentation. For depositions of less central players in the case. your mode of dress should convey the fact that you are a professional in the courtroom on business. If you are completely uncertain about what to wear to court. during breaks. testifying is thirst-provoking work. do not wear new clothes. Indeed. I can use my table together with the attorney’s copy of the deposition. depositions. and you will not go wrong.
Being on the stand is not unlike being filmed. and cutting-edge high-drama fashion or excessive informality. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. Finally. ensure that they are turned off. ornamentation. perhaps comfort should rule. affidavits. glass. Above all. the bailiff usually will keep it filled. and check in. If I need the actual page or quote.
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. Arrange appropriate coverage so that you do not have to worry about being reached. This table of contents enables speedy reference to key facts. showing off how busy you are and how court is taking you away from really important matters.The Expert in Trial
(pruned to relevant periods if needed). see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. what you wear should fit well and be well broken in.
Even when an attorney attacks you. as follows. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. Avoid personal body attentions (such as scratching) as much as possible.
. and you want the jury to understand it. even when someone else is speaking. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. Such reactions may be misconstrued as disrespectful. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. such as rolling your eyes at the jury when a particularly fatuous question is asked. Be clear.
Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. not of the attorney in question.78
THE PSYCHIATRIST AS EXPERT WITNESS. There is no reason for a teacher to get mad. attorney moves on to another subject]. A witness with an apparent chip on his or her shoulder (and in court. all such chips are apparent) is particularly unconvincing. you win the exchange. Scholars recommend keeping the front of your body open (by not folding your arms. you know or should know that it is not personal and has nothing to do with you. or obtuse to the seriousness of the issue. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. 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. get interested in what you have to say and stay interested. Without such alliance. but of the jury or the entire process. Attorney (with a slight sneer): Isn’t it true. humor may seem disrespectful. an attorney—at all times. or degrades you. and sarcastic. not credible. Doctor?”). This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. obnoxiously facetious. fluffy. for example) as body language consistent with candor. SECOND EDITION
plaintiff. it is important. With discretion. Make your point because it matters. and you are unfailingly polite. and stuffy. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. A colleague reported the following:
Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. If the attorney is hostile. you are likely to be too involved and therefore possibly biased. however. If you become huffy or outright mad. Your identity on the stand is that of teacher. flip. demeans you. Doctor. sneering. Beware of “involuntary” gestures. impugns you. humor directed against yourself may show that you do not take yourself too seriously.
jargon laden. Although you are a teacher. If in any doubt about your speech volume. Finally. not stuffy.” but only a few things reach reasonable medical certainty). 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. Because jurisdictions differ as to the precise definition. Direct your extended remarks to the jury. If a microphone is available. explain. understandable manner that brings the details together in a recognizable gestalt. and to admit that rules have exceptions. yet may ultimately give up on your testimony after straining to hear for too long. or waxing argumentative rather than instructive. but without intimidating staring. or respond to jargon.” that is.” Make your point as concretely as necessary and back it up with hard data from the database. to concede a point that really doesn’t mean much. pedantic. It is not the same as “certainty” (100% sure). what fools these jargonists be). not just a classroom exercise. avoid discussing unconscious dynamics unless absolutely needed for your point. to agree that some things happen sometimes. good teachers are lively and interesting. they are usually poorly received by juries. ask if you can be heard by the farthest ranks of jurors. and “waffley. the concept is sometimes rendered mathematically as a 51% certainty. If no microphone is provided. to accept a possibility as such (almost anything is “possible. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. In general. Keep in mind the expert’s role in telling the story in a coherent. as a result of your careful and thoughtful preparation with your attorney. They are not excessively academic. If you must use.e. the most common beginner’s error in the courtroom is the inability to “throw it away. blunts your argument and weakens your credibility. Haggling with the attorney over a tiny abstruse point. concede a remote possibility and move on. making roving eye contact with various jurors whenever possible. As occurs during the depositions noted in the previous chapter..The Expert in Trial
Being fluffy means being too abstract. Speak to the most distant juror to be sure your voice is audible. project. theoretical. evasive. a juror who cannot hear may be hesitant about saying so in open court. or prone to nit-picking. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. the trial is a human process.
Direct testimony should unfold in an organized manner.
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
I have been impressed by their ability to grasp what is at issue. as if to convey.” Realistically. just like putting your hand over the vacuum nozzle. the best cross-examination is. stutter.
As you can grasp by merely reading this response aloud. Consider practicing such a description with your attorney or colleagues or friends. “I have no questions for this witness. any testimony from this witness would be bought and meaningless. Over the years. some scholars assert. The expert is on direct examination by his own retaining attorney. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. grunt.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife.
Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. This is a powerful argument for at least organizing your thoughts before you begin to testify.” but this appreciation is lost if the jury cannot understand or follow your description. Respect the juror. Recall that this is direct examination by his own retaining attorney. The hazards of lack of practice are revealed by this following segment from an actual murder trial. Um—as the events became closer to the—um—incident itself [the murder]. the chemicals stay in the spark gap and keep working so that your mood is lifted. because a seasoned expert will simply use cross-examination as an opportunity to make some of the same points made on direct with different emphases. The jury hears the testimony twice—an aid to both memory and persuasion. the jury usually appreciates being given the “inside story.
Although this mode of explanation may seem cumbersome. 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. do not underestimate juries.
Adventures in Cross-Examination
For experienced experts. “I don’t care to waste my time on this whore.The Expert in Trial
(draw a barrier) this process. the dirt stays on the floor. if you do that. In the same way. such an avoidance of cross-examination is sound trial strategy. That is how this kind of antidepressant or mood elevator works. and slavishly but perfectly appropriately. and throat clear that you emit on the stand. it is numbing to a jury. depressed— um—and seeking help. may record every pause.” preferably said in a mildly contemptuous tone. and the expert has theoretically prepared to tell the story in a coherent manner. even if the technical details are lost in the shuffle.
e. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. but in this instance it is not. “That’s generally true. no problem. questions beginning “Is it possible. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. or the answer may be obvious from the question (i. Instead. The tight rein on which you are held may make it difficult to get your opinion out there. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. It is better to say. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. and even the attorney’s competitive feelings directed toward the expert. First.. If you want to say. Even those attorneys who opt to engage in cross-examination are usually (but. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. the attorney’s competitive strivings with the opposing attorney or firm. The attorney may know the answer to a particular question from the expert’s report. which may be asked on cross..” the attorney may move on to the next question after you have said.”) or exhibitionism (“Watch me shine!”).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. can they not?” • “Another expert might come to a different conclusion. such as the previously listed leading questions.”
. what you say is often true in other cases. SECOND EDITION
Most often. The following are some examples of the last (all are leading questions. not always) aware of two fundamental principles that should guide this activity. isn’t that right. or alternatively.84
THE PSYCHIATRIST AS EXPERT WITNESS. the attorney asks closed questions.” are almost always answered yes on the theory that almost anything is possible). the attorney’s wish or need to have the client see the attorney doing something. the question answers itself ). Throw it away. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). ask only questions to which only one answer is possible (fittingly. never ask a question to which you do not already know the answer. “Although the present case is a clear exception to that rule. surprisingly.. or publications. however. interrogatory. equivocating hurts you. deposition. attorneys do not perform this simple but effective maneuver. “that’s generally true” and you may be too flustered to challenge the action. The second fundamental principle of expert cross-examination is keep the expert on a tight rein.
Remember that you did not write the article or make the statement during a lecture with this particular case in mind. say it. to be sure you are clear about the question. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination.
Pause briefly before answering each question to allow replay of the query in your mind.” “no. Practically. a question will require more time for prolonged thought or searching of your memory. You took an oath to tell the whole truth.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. The key word is truthfully. If either will do so.” Listen with intense attention to the question. if not.
During breaks that occur in the middle of cross-examination. to consider your answer carefully. a judge may even decide to declare a recess: “While you are thinking. consequently. and a mere yes or no may fail to convey the “whole truth. if needed. and think seriously about whether yes or no will represent the whole truth. 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. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. the attorney may quote something that you wrote or lectured on. We’ll reconvene in 15 minutes.” The break gives you ample time to think. and to allow your attorney to object. At such moments. some sources suggest answering at the outset. Doctor.” and do so.” This response may be foreclosed by the judge directing you to answer anyway. because “What did you discuss?” may well be the first question when you are back on the stand (only discus-
. state that you cannot answer yes or no. we are going to take our midmorning break right now. Scholars liken agreeing to this either-or approach to signing a blank check. Always ask to see the context if you do not immediately and completely recall it. “I’m going to take a moment to think about that. this type of questioning means that you have only three answers available: “yes. At times.
On cross-examination. some attorneys advise not discussing your testimony. or have you dozed off? It is best to state.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex.
incomplete. Subsequent communications may be labeled supplementary reports to keep the sequence clear. others find telephone calls distracting and let whoever is covering for them handle things. your opinion. is your actual trial testimony. as a “preliminary” report. I recommend avoiding eating heavily. This change is as it should be. 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. For the lunch break. if requested. such as the discovery that you have left a key document in your suitcase across the courtroom or. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. 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 may have written a report after reviewing some quantity of material. SECOND EDITION
sions with your own personal lawyer are protected). even worse. the one that counts. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. Use your own judgment and knowledge of your biorhythms. These include biological and physiological crises or circumstantial ones. in the trunk of your car. An aid to this conceptualization is to label your first report. or inadequately grounded in data. had it changed your opinion. you would have been obligated to so inform your attorney. you have confused loyalty to your attorney with the oath to tell the truth.
Various crises may strike while you are on the stand. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds.
. because it is based on data. In theory. Later. and some additional material may have come your way just before the trial (which. you may have been deposed. Some experts want to call their offices during breaks. The thrust of this line of questioning is to convey that your opinion is premature. could change with complete validity based on some new fact that you hear for the first time during the trial. Now you must testify on the witness stand.86
THE PSYCHIATRIST AS EXPERT WITNESS. but let’s assume it did not).
The Final Opinion
During the course of expert consultation. Your final opinion.
” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). This behavior conveys too much interest in the outcome for someone who is not a party to the case. While this is a common and respectful courtesy.” At this point you say. get down from the stand. one of the parties or even one of the attorneys reaches out to shake my hand. and go. you exit. Some more extroverted experts thank the jury out loud. Focus on slow. “You (or the witness) may step down” or “Thank you. entitled. or emit other social behaviors. Deal with the problem and then continue with your task with restored focus. Your Honor. nod politely to the jury. Ask the judge if you may take a brief break for personal reasons. sickly. The judge dismisses you by saying. for example. More troublingly. or to learn of other subsequent activity. by needing to go to the bathroom. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. On occasion as I have left the courtroom. “Thank you.
The End of the Affair
Finally. and sit more upright to relieve tension. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. Do not be inhibited by fears that. it poses a dilemma of a no-win situation. that’s all. to see the outcome. Do not stop to chat or debrief with the attorney. stretch your limbs behind the screen of the stand. No one knows the effect of these gestures. childish. measured breathing. and both grudgingly acknowledge that neither has any more questions for you. or weak. it invariably conveys the strong suggestion of partisanship. What do you care what happens? You only testify under oath. The judge will almost always grant this. at odds with your objectivity. If a delaying tactic is not used. as always. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. Forensic etiquette requires that you just leave.The Expert in Trial
Do not hesitate to ask the judge to permit you to take a break for these reasons. conservativeness is probably better (the discreet nod rather than the glad-hand wave). If you do shake hands. fans!”). Doctor. and serious distractions impair your work. Your job as expert is important to the case. when you are through. it is preferable just to hang in there. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. Do not hang around to hear what other witnesses say. you will appear inept. wave at the jury box (“So long. you seem to be acknowledged
A far more detailed analysis of testimony can be found elsewhere (5). nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. as much as possible about what happened and why it happened. 2000
. 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. Finally. some forget. this task is for the lawyers.88
THE PSYCHIATRIST AS EXPERT WITNESS. the best teacher. while acknowledging that experience is still.
1. J Psychiatry Law 28:235–251. SECOND EDITION
for good (but partisan) work. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. If you have traveled far with a heavy load of database materials. Gutheil TG. Forces beyond your control and outside your testimony—such as the demographics of juror selection. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. 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. Because this brief volume can serve only as an introduction. if you do not or you ignore the outstretched hand. however. “juror countertransference” toward the attorneys. 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. you seem rude. It is perfectly appropriate after some time has passed to call and ask the outcome. Take only your report. always seek feedback and reactions to your participation. and the like—impinge on trial outcome. by letter or telephone. as always. For your personal development as an expert. Most courteous attorneys will inform you later. Surprisingly.
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
” Smile politely when you hear these words but make expansive plans. with suitable preparation of the jury. the other side may be willing to have your testimony inserted into their side of the case. and serious matters hang in the balance. Travel glitches (discussed in Chapter 10. The last two priorities are interview and report. theoretically. a forensic interview. court dockets are crowded and leave little flexibility. which also require several people to synchronize their schedules. he or she will be exerting the greatest efforts to make it all work out. but during the very week that you have scheduled four weddings and a funeral. The tension here is that some courts. attorneys.. You may have a little room to maneuver in terms of the order in which you testify. comes before a report. and other-side attorneys are reasonable. This type of schedule is close to reality. of course.” in this volume).92
THE PSYCHIATRIST AS EXPERT WITNESS. I can’t imagine my direct examination taking more than an hour. I know you have a busy schedule. with a deposition for a third case. but things happen. add another layer of challenge. cancellation) is as follows. and telephone calls to resolve them. In extreme circumstances. An attorney who planned to have you “bat cleanup” (i.M.
Trial Time Considerations
A cheerful bit of dialogue that experts hear constantly is. although obviously fewer persons and a shorter time frame are involved than are for trial. You’ll be out of there by lunchtime. The second priority is depositions. As a rule of thumb. maybe 2. hours. flexible. Trials take first priority. two trials in different states will be called simultaneously.. You’ll probably be cross-examined for 1. Large numbers of people are involved. the hierarchy of urgency and therefore attempted postponement (or at worst. requiring two parties to match schedules. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. the trial should take precedence. SECOND EDITION
for months without any forensic activity whatsoever. Because your attorney has the most interest in your presence. and accommodating.e. You must do the best you can with what you’ve got. If a trial and a deposition are scheduled for the same time. tops. You can count on your eyeballs the number of times this clockwork model actu-
. “The Expert on the Road. sharp. 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. others are not. Because your reports can be done at any time of the day or night. for example: “Doctor. so let’s put you on first at 9:00 A . negotiation.
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. 1996
Gutheil TG. Occasionally. 2. it is not uncommon for an out-by-noon case to extend into the next day. American Psychiatric Publishing. the odd juror gets stuck in traffic. partner. DC. and family. Gutheil TG: “Paraforensic” aspects of expert witness practice. Why? Although some judges are scrupulously punctual. However. Washington. 2006
. J Psychiatr Pract 12:50–54. 2004 Kearney AJ. Gutheil TG.)
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. some are not. 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 jury takes a long midmorning break. Bull Am Acad Psychiatry Law 24:533–546.Some Pointers on Expert Witness Practice
ally occurs. The judge assigns a long lunch and hears another few motions just afterward. a judge will treat the time between 9:00 and 9:30 A . The subject may represent some kind of taboo because it is rarely discussed. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Commons ML: Trading forensic and family commitments. (More suggestions on scheduling are included in Chapter 10 in this volume. 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. no clear conclusions can be drawn. difficult choices may have to be made. 2002 Reid WH: Forensic practice: a day in the life. In the end. Although my colleagues and I tried to study this issue formally (2).M.
1.” In addition. Thus. J Am Acad Psychiatry Law 32:356–358.
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or to serve on a jury. or a physician’s deviation from the standard of care.
The Forensic Report
Writing a forensic report is an important function of the expert for a number of reasons. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. allowing careful legal analysis and reflection on whether you will be helpful on the case. In all such cases. 95
Writing to and for the Legal System
THE EXPERT WITNESS may provide many different kinds of
written documentation to the legal system. In this chapter. a court. In The Psychiatrist in Court: A Survival Guide. some basic principles on letter writing to the court are described and are not repeated in this chapter. a description of an independent medical examination for a personal injury suit. to serve as a witness. or a full evaluation of a person’s competence to stand trial. I focus on writing the full-fledged forensic report. 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. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. for a worker’s compensation claim. a defendant’s criminal responsibility. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. an attorney. or for a disability determination.
According to Dr. M. Resnick. painstaking preparation. In other situations. because the first is self-explanatory and the second is an extract of the third. for which I am most grateful (where I cite his material. the report may present materials or approaches that the attorney does not wish to share with the other side. I emphasize the third form. It should stand alone. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. of course): 1) no report. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. It should be just long enough to cover the essential information but not so long as to exhaust the reader. Obviously.” Dr. the reader should be able to understand how the opinion was reached from the data in the report. which states all of your conclusions and the analysis of all the relevant substantiating data. It should contain everything that you need to support your opinion and no irrelevant material. 2) a summary report. I refer to him explicitly in the text). which presents your database and conclusions only. may take three major forms (with variations possible. Resnick also identifies the “four principles of good writing”: clarity. simplicity. all should govern the form of the report. Critical documents should be briefly summarized within the report. Forensic report writing. Consequently. Phillip J. and 3) the full. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. “Reports should be self-sufficient. Resnick. has generously and graciously granted me permission to cite some of his advice on report writing. Despite these useful functions.. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. SECOND EDITION
Alternatively. For similar reasons.
. which in that jurisdiction is discoverable by the other side. brevity. the attorney may ask that you not furnish a report. then. and humanity. and meticulous proofing and review of any report you produce. without detailed discussion of the bases or reasoning behind those conclusions. detailed report.
The report as a whole should meet certain criteria. In this chapter. Without referring to other documents.D.96
THE PSYCHIATRIST AS EXPERT WITNESS. 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.
or emendations should be titled “Supplementary Report. or the type of case in a civil matter (e. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest .g. John Johnson).g. One way is to provide the case citation or caption in whole or in brief (e.... reasoning that the occasion is obvious from context. In that case. the case or docket number if known. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. emotional injury or psychiatric malpractice). Resnick is included at the end of this chapter.” and subsequent contributions. .” Some attorneys. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. of the report should address the question of why you are writing this report. I examined (name of examinee) with regard to (forensic issue).” • “I examined Ms. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. think of your report as a memorandum and use a standardized format.Writing to and for the Legal System
The first report should be titled “Preliminary Report. the charges in a criminal case.. otherwise. and depositions. Jones et al. use a standard business letter format. additions.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses.. The heading should also include your letterhead and the date of the report. Smith v.. that is..”
After identifying the occasion.
The occasion. 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). Include any interviews per-
. legal pleadings. sometimes called the referral. or State v. Identifying data can be presented in a number of ways. One model by Dr. police reports..
The Conclusion or Opinion
The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. 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.g. The expert escapes the accusation of being too conclusive in voicing the opinion by providing the steps and stages of reasoning that point to the outcome. it is my professional opinion. Although each group has a rationale. First. including interview data) and your total clinical background of training (what you were taught) and expe-
. about the disposition. The documents may be listed alphabetically. or according to some natural. A typical conclusion in a malpractice case. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). The remainder of the report is thus treated as optional reading. SECOND EDITION
formed and their date and length. 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. no convincing case has been made for the inherent superiority of either approach. and so on. in the treatment of (plaintiff ). all medical reports. held to a reasonable degree of medical certainty. (or. all depositions). attorney. chronologically. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. for example. the overall basis is described as both the database (all the material reviewed in the case. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . that. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. or other) is free to stop there and make decisions about future directions in which the process should go. might take the following form: Conclusion
Based on my review of the above materials (the database) and my own training and experience. 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..
Note the wording.98
THE PSYCHIATRIST AS EXPERT WITNESS.. . logical grouping (e. you are free to choose your favorite.
The reader should not have to use his/her own inferences to understand the point. Resnick explains. or other. you can present the supporting material in several ways. In criminal cases involving the insanity defense.” In every case. If your conclusion comes at the end of the report. offer alternative opinions. Resnick suggests using subheadings to organize the information and facilitate the flow of the report.
After the conclusion.”
In civil cases. Second. and credibility as an expert witness.e. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. Finally. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. sometimes frankly contradictory. sometimes different spins on the truth. As Dr. be it competence. effectiveness. If your conclusion is stated at the outset.. Dr. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. is essentially boilerplate (i. “If there are two versions of the facts. standardized legal language). the defendant usually has admitted the act for which he or she is charged. Dr. this section should contain extracts of previous material directly supporting the points you are making.e. although representing the core of your opinion. it is predictable that plaintiff and defendant tell different stories. insanity.Writing to and for the Legal System
rience (what you have found for yourself by practicing in the field about which you are testifying). more likely than not). malpractice. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. Third. “Reasons supporting opinions should be clearly and fully stated. 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. usually. Resnick states.. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. Remember that the conclusion. your conclusions should be presented in
. 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). but occasionally. the expert should scrupulously avoid assuming one side is correct. In these cases.
THE PSYCHIATRIST AS EXPERT WITNESS. (Remember you must be candid about everything you believe to be true. or agency for which it has been prepared.” This approach prevents your seeming to side with one party in the case. SECOND EDITION
the following form: “If the allegations are true. you may receive requests to alter the report in some ways.
After your report is finished and has been sent to the attorney. Whichever approach you actually take in your written report. or to change the substance of your opinions. then . it would be a weakness not to acknowledge these factors candidly.. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. then .) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. even if it has been removed from your report for brevity. Limits.. summarizing.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. and shortening the report by aggressive editing. and deleting. money. There is no absolute guideline for this procedure.. which make for a stronger report. to alter or misrepresent facts in the database. some are not. on the contrary. A case example was discussed in Chapter 3 (“First Principles”) of this volume. and Rebuttals
If there have been any constraints of time. 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). or data (such as inadmissible material. These are not weaknesses of the report. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. but generally there is no inherent problem
. Some requested alterations are fully ethical.. A challenging gray zone is negotiating about wording. interview of plaintiff blocked by attorney. then ..
Constraints. asking for the addition of new material not supplied to you earlier. these should be recorded.if defendant’s version is true..
The Experience Factor
This chapter alone cannot prepare you fully for forensic report writing. 11. 8.1 1. 6. 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 Criminal Report: An Example
The following is Dr. intensity (likely. 12. 9. 3. 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:
with permission. 4. 17. and effect of emotional injuries—three common problem areas. but it may get you started. 13. 5. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. very likely. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 15. Be careful about changing wording concerning issues of causation. 2. 16. Resnick’s outline for a typical criminal report. 14. extremely likely). 10.
.Writing to and for the Legal System
in adjusting wording as long as the substance of your opinion is not changed thereby. 7. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field.
25. in Handbook of Forensic Psychology. New York. SEAK.102 18. 19. pp 511–528
. Petrilla J. 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. 20. 3rd Edition. Edited by Weiner IB. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. pp 577–605 Weiner IB: Writing forensic reports. 23. et al (eds): Consultation. Falmouth. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. MA. 1986 Melton GB. 22. 1987. Am J Psychiatry 143:164–169. Poythress NG. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. Wiley. 21. Guilford Press. 24.
THE PSYCHIATRIST AS EXPERT WITNESS. Hess AK. report writing and expert testimony. 2007. New York.
We sent this announcement to every attorney we had ever worked with. “Yes! We (or the corporation) will take your case. such an affiliation would mean that we would be able to say to any attorney who called us. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. heard of. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. to connote the Harvard connection). I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. We will let you know shortly which of our directors will be working with you. embarrassments. In the late 1970s.CHAPTER 9
Developing and Marketing a Forensic Practice
HOW TO GET started in forensic work is a common preoccupation
among novice expert witnesses. and inefficacies. a letterhead. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. We retained an industrial designer to help create a logo (highlighting crimson. In this chapter.” The ability to say yes to all comers seemed like a good idea at the time. (I believe this excluded only admiralty practice and the law of the sea. and a typeface for our official stationery.) 103
. Unfortunately. and we drafted an announcement.
Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. clinicians) led to forensic referrals: word of mouth.104
THE PSYCHIATRIST AS EXPERT WITNESS.. commercialized hustling for business—or the appearance thereof. Based on this reasoning. list. opportunistic. “Types of Typical Cases. but the net effect for all this time. word of mouth). write. thought. sharing useful information versus being pushy. speak. Ordinary advertising in Lawyers’ Weekly. that is. The balance must be struck between dualities such as generating word of mouth versus hucksterism. and unspecialize. and expense resembled our own responses to offers that come in the mail to sell us insurance. for example.
The Key Approach
As time went on. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i.e.” in this volume). SECOND EDITION
All this effort did nothing. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. and pride and confidence in your work versus hired gun certainty or grandiosity. is suspect and not reliable as an approach (see also Chapter 4. Most recipients almost certainly awarded our announcement the coveted circular file disposition. We received a few form announcements from two or three firms about their offerings. 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.
The Delicate Balance
In all approaches to marketing. inform. The result was tantamount to letting a drop of water fall into a large lake. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. an expert’s marketing strategy shifts to generating favorable word of mouth.
. Support for this theory came from Harvey Research in 1994. 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.
Attorneys whom you can inform include your own attorney. Describe those services you can authentically offer. if you have one. First. Serving as a guardian ad litem (GAL. in effect. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. too little time. hand it out at a lecture.
. and 4) judges.Developing and Marketing a Forensic Practice
If the circumstances call for an announcement (which is not common). and lawyer neighbors and friends who might pass your name along. of course.
The information about your availability may be directed to four possible audiences: 1) your clinical peer group. the announcement should display the professionalism that you plan to bring to the work. they may think of you at that point. Opposing attorneys. Although your forensic peers may seem to be your competition. Avoid any hype. it should be tasteful. 3) attorneys. polite letter informing local judges of your availability for forensic services. including listing services you are not truly expert in. they may turn away a case because of a conflict of interest. judges may need your services. previous associations with the attorneys on the other side. Thus. Some experts replace the announcement with a minibrochure: a single. For your clinical peers. Finally. they will be useful to you in several ways. you may wish to send a short. the GAL may do a preliminary survey of the psychiatric aspects of a case. will see you in action in deposition or trial. then reporting to the court. Among other roles. 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. trifold sheet of fine paper with a brief description of the expert and the services. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. Alumni bulletins and class reunions are also opportunities to get the word out. If you inform your peer groups about your availability. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. and factual. or other reasons. 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. 2) your forensic peer group. If you are moving into a new town. informative. or use it in some other appropriate way. and send it to attorneys and clinicians.
and similar humiliations. many referrals to psychiatrists come from publications. Although it is useful exposure and a valuable resource to write an analysis. 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. Admittedly. but the wounds of experience are probably and ultimately the best teacher.
In our computerized modern age.
. In my opinion. try to become involved in local media such as call-in shows. no one will show. this skill is acquired. or commentary and have it published. Beat the Press (2). these publications may be explored. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. such as hospital grand rounds. ambush journalism. Instead. and media exposure may open you to crank calls. departmental conferences. 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. You will be exposed to attorneys and legislators. may be helpful in dealing with the media. review. Become active in your district branch legislative committees and processes. Your podium demeanor may convey at least a little about your expected performance on the witness stand. both of whom may be potential referral sources. however. or established continuing medical education programs.
Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services.106
THE PSYCHIATRIST AS EXPERT WITNESS. The APA Public Affairs Office provides some guidance in dealing with the media. One reference. the topics of which appear on the screens of attorneys’ computer searches. SECOND EDITION
Listings can be effective as well. sign up as an entry in an existing lecture series. Finally. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). such as clinicians and lawyers.
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. From the absolute onset of your career. I will work only on high-profile. Have the site professionally designed with attention to taste. even at the outset. based on your fine performance at the deposition. You will derive no income. It does not matter if the case is trivial or small potatoes. In the same vein. and other aggrandizing statements that are. place in the profession. skills. trivial cases allow you to be observed in action by potential employers.” This is a losing strategy. one turn to the Dark Side of the Force. It may then take you years of work to unblemish your reputation. Begin your career by unspecializing. 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. In fact. Do not bend the truth to satisfy the attorney. certifica-
. some critical considerations are the following: 1. modesty. as it were—but the Web site is perhaps the most explicit. widely publicized mass murders. and interest. and your course as hired gun may be marked. Consider taking on some pro bono work as well. 2.
What About Web Sites?
In the modern era the use of Web sites has increased for all professions. training. some broker organizations guarantee your opinion. If you decide to use a Web site. but you will obtain valuable exposure.Developing and Marketing a Forensic Practice
For the novice expert. a point that cannot be overemphasized. no matter how slight the issue. Beware of making or seeming to make extravagant claims for your knowledge. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. integrity must be your watchword. Conservatively stating your incontrovertible credentials (actual appointments. 3. extremely public. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. wherein you follow the ancient maxim. Even minor. including this one. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. Be extremely careful about posting your qualifications. No case too small. by definition.
tions. J Psychiatry Law 31:5–19. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back.
The issue may seem trivial. etc.” Although you are feeding the competition. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. Building a practice on word of mouth is slow. Remember to thank your referral sources. Sadoff RL.
1. 2003 Fulton S. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. at times trying. Guyant A: Beat the Press.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). 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. and demanding of patience. choose only those experts whom you would be confident to have on your side if you were being sued for something. In analogy with clinical referrals. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. specific required expertise). and effective. American Book Business Press. Finally. for referrals. sound. You are saying to the calling attorney. publications. Return telephone calls are the easiest marketing device and one of the most effective. but no other method is as reliable. recall the value of brokering. 2002
2. you are also revealing yourself as a good first stop on the search for a good expert. conflict. but I will take it upon myself to find somebody good who can. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. “I can’t take this case (because of time.
. Dattilio FM. including attorneys and fellow clinicians. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. Salt Lake City. UT. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. but its importance cannot be overstated: return telephone calls promptly.108
THE PSYCHIATRIST AS EXPERT WITNESS.
I personally recommend attending the various conferences in diverse locales put on by SEAK. I disclose that I have lectured for SEAK numerous times over the years. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. CO. Inc. Tageh Press. WW Norton.Developing and Marketing a Forensic Practice
Berger SH: Establishing a Forensic Practice: A Practical Guide. Glenwood Springs. Massachusetts.. New York. out of Falmouth.
. 1997 Feder HA: Succeeding as an Expert Witness.
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and opprobrium.. William Reid. mockery. Simon. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. M. As always. this chapter will be too obvious and not relevant to your needs. 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.
.C H A P T E R 10
The Expert on the Road: Some Travel Tips for Testifying Away
Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy. seasoned travelers may skip the chapter entirely.
The author is indebted to Robert I. M. In this chapter. 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. I address some tips and strategies for the expert who is inexperienced in traveling to cases.
IF YOU TAKE ONLY CASES
in your immediate neighborhood (such as might happen when you work for a court clinic) or if you are already a seasoned traveler.D. or interviews..D. examinations.
and general information can be obtained from books. 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. 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.
Some General Recommendations
Travel guides are available everywhere. Still other guides are provided in the suggested readings at the end of this chapter. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. looks professional. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. Consult with significant others for their opinions if needed. and one pair of shoes. travel agents.
Time Planning and Packing
As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. 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. Running shoes also allow you to sprint through airports to
. 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. testify or interview the next day. especially if you have not worn it for a while. cars. to ensure that it still fits. matches. the Internet. For cases that involve land travel. you may make the appropriate adjustments. and is in good repair. the emerging online travel services (Expedia and the like) may prove useful. and your colleagues. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance.112
THE PSYCHIATRIST AS EXPERT WITNESS. polished shoes for men and women). These services can book flights. the process takes even longer. Try on everything before you pack it. and return that day or the following one. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. stay overnight in a hotel or similar setting. Opt for crushproof fabrics and materials whenever possible. and hotels directly and save you much time and stress on the telephone or online. on rare occasion. especially in flight. Another useful reference is Jet Smart (2). Alternatively.
g. Seek equitable division of costs for multiple-case trips. Separate business from personal comfort. You have enough to worry about
. Until data emerge. or 2-hour long-distance calls to your paramour. for one telephone call to the family. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. rare but extremely stressful when they do occur. is addressed nowhere in the forensic literature). you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. If you review a different case on the way back. a useful principle is to avoid double billing in any form. do not bill separately for that work because you are already being paid a day rate. if you are flying to a case and use air travel time to review the case. 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. you may bill for that time but not for the ticket because the first case paid the whole trip already. It is possible. for one or two telephone calls per day to the office to check on things. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. massages. in-room movies. 1 day at your day rate. the literature is relatively unhelpful (the issue of double billing. then.The Expert on the Road: Some Travel Tips for Testifying Away
your connecting flight if you are late. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. because some law firms are slow to reimburse hotel and plane expenses). 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. do not bill for sleep (you do it anyway). to pack for 2 or 3 days of travel and bring most of the key documents in a case along for review while remaining in full carry-on mode. for example. fortunately. and for the regular three meals. If the trial runs longer than a day or so. Avoid checking baggage if you can. but not alcoholic beverages.
Secrets of Packing
The Travel Suitcase
This device is the traveling expert’s best friend.. which are.
The Ethics of Billing
Bill strictly according to your fee agreement.
extra eyeglasses or contacts if you wear them. antacids.
Consider taking along a lightweight workout outfit if that is part of your routine. or toiletries case. In addition. light flashlight for power outages and searching under beds for lost items.
. multifunction “pharmacy” also should be included. Current travel restrictions have shifted the allocation of liquids. stain-remover sticks that do not contain toxic petrochemicals. Remember also that your kit should contain items that permit repair. These should include sewing items. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. do not skimp or economize on the roll-along suitcase. Wear your workout or running shoes on the plane. In psychoanalytic theory. and rubber bands. which may also be prepacked. and cleaning. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. and similar medications. not to mention the current airline custom of charging extra. In general. and creams to quart-size plastic bags. Dopp kit. safety pins in various sizes. Other useful miscellaneous items include adhesive bandages of various sizes and types.
Whether you call it a travel kit. Alternatively. A small. it is indispensable to your successful travel ventures. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. A pair of all-nylon running-type shorts and a quick-drying top are versatile items that can be worn not only for exercise but also in the Jacuzzi or in your hotel room as a comfortable lounging outfit while you review the case.114
THE PSYCHIATRIST AS EXPERT WITNESS. with a little applied topology. and extra combs. such as a variety of buttons and threads to match your clothes. extra shoelaces. decongestants. the principle of multiple function is one of the basics of a dynamic understanding of mental life. a small roll of duct tape. makeup bag. lotions. you may opt to wear the suit or outfit on the plane and guard it in transit. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. but you may wish to experiment with a friend’s suitcase. a small. these roll-alongs often fit either in the overhead compartment or. and string. It is definitely a basic principle for assembling your kit. and pack the rest of the gear. SECOND EDITION
without having your materials for the case arrive in Chicago while you are in Cleveland. even under the seat in some cases. eyeglass screwdrivers and replacement screws. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. What you take should have similar versatility. remedy.
procedures. You breathe through a filter that lasts long enough. The traveling expert is sometimes torn between staying at a cold. Seriously consider avoiding airline food entirely.
Secrets of Flying
Consider upgrading to first class to allow you to spread out the case materials for in-flight review. you are undistracted by social obligations and family strife or background noise. try breathing through a moistened towel for short periods. I recommend the hotel or motel for several reasons. on very dry flights. for you to get out of the toxic smoke and gases to safety. If you have a disability. fly out. Second. I carry a compact “smoke hood.The Expert on the Road: Some Travel Tips for Testifying Away
If you travel with a laptop computer. as well as extra disks and the instruction manual if not on the hard drive already. and special arrangements. call the airline early to check on facilities. but some precautions seem sensible.” this discussion will be helpful. often hooked to a travel alarm clock.
Neurotic fears can certainly flower when you travel. in theory. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. fails). because someone else is paying your way to the location. Drink water steadily to avoid travel dehydration. testify. Almost all modern hotels in the United States have smoke detectors.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. This item is available through a number of catalogs. but you can buy your own compact version. The latter appears at first glance both socially desirable and economical. experienced travelers can skip this discussion. or order special low-fat meals.
Secrets of Staying
If you are unfamiliar with the expert art of “fly in. Besides a small flashlight. remember to carry light extension cords and voltage adapters. First. although occasionally. institutional hotel or motel and cadging free lodging with friends or relatives in the area. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. it is more professional to meet with your attorney the night before the
. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination.
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. a business trip. Whether the room’s air system is heating in winter or cooling in summer. After the trial. congested. 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. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. a situation that can leave you hoarse. nausea on the witness stand also may be misinterpreted. SECOND EDITION
trial in a hotel room or conference room. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth.M. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid.
. back up the call with your travel alarm. this is. wring it out thoroughly so that it doesn’t drip. My first move on entering a hotel room. hotels provide irons. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. A simple but effective method is to soak a washcloth or hand towel in cold water. after I put down my luggage.
Secrets of Eating
In traveling to court. Don’t forget to set the room thermostat to your accustomed household temperature. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. 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. have your martini on the airplane home after it is all over. obviously you should eat lightly and stick to what is familiar to you. if desired. It is probably safest to avoid all alcohol during the trip before testimony. Experimenting with culinary exotica is asking for a case of turista at worst. If a paper clip or safety pin does not suspend the cloth or towel well. My second move often is to arrange a do-it-yourself humidification of the room. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. but not all. of course. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . Remoisten it as needed. is to make a beeline to adjust the hotel’s alarm clock or clock radio. after all. and headachy on the stand. the air is invariably dry in most hotels. an essential part of effective testimony.116
THE PSYCHIATRIST AS EXPERT WITNESS. you are free to visit friends and family at your own discretion.
Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. and similar relaxants. This term refers to sounds containing all frequencies. so you may have to carry some supplies in your pocket or purse. of course. you can have a serious meal without ill effect. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . Far better results accrue from sleep hygiene maneuvers. or others) at bedtime. Many travelers find it helpful to block out morning sunlight with the drapes. plan your trip to allow time for recovery from jet lag. either by closing them completely or fastening gaping fabrics with safety pins. also eat lightly. When possible.” sleep sound machines. When you are up and awake. hot baths. I recommend it. the chatter of housekeeping staff just outside your door) is white noise. benzodiazepines. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. Examples include prescription medications that you need during the course of a long day. These have ill effects. usually described in catalogs as “sound soothers. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. Catalogs sell portable battery-operated white-noise generators.M. or even a different time zone. After court. breathing techniques.. 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. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. or similar terms. without aftereffects. and with sleeping pills. spending some time in direct sunlight may be helpful in adjusting your biologic clock.
What to Take to Court
Courthouses are notably lacking in amenities. but all the data are not in.
Secrets of Sleeping
One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. Ordinary AM radio static and the sound of surf are two examples of white noise. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. including hangovers. actual memory loss can occur—the last thing you need. by using either alcohol or sleeping pills (barbiturates. stain
. as noted. just as white light contains all color wavelengths.The Expert on the Road: Some Travel Tips for Testifying Away
At court during the lunch break.
Ten Speed Press. CA. Villard. and a headache remedy for the obvious problem.) Savage P: The Safe Travel Book. Commons ML.) St. CA. or refreshment.
3. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. 1996
. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler.118
THE PSYCHIATRIST AS EXPERT WITNESS. I hope that these tips make your travel easier and less surprising.) Gutheil TG. I welcome your suggestions and favorite travel tips. 2003
2. et al. J Am Acad Psychiatry Law 29:202– 206. New York. or throat lozenges. 1994 (An excellent guide to what to take and how to pack it.
5. Santa Barbara. James E: The Secrets of Simple Packing (VHS videotape). Commons ML. Miller PM: Expert witness billing practices revisited: a pilot study of further data.: Expert witness travel dilemmas: a pilot study of billing practices. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. WA. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. 2001 Simon RI. Although some of the pointers in this chapter probably state the obvious. sample wardrobes and general travel pointers included as well. Celestial Arts Publishing. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Berkeley. cough drops.
4. Magellan’s International. Jossey-Bass. mints. Flying Cloud Publishing.
Greenberg P: The Travel Detective: Flight Crew Confidential. Psychiatric Annals 33:302–306. 1998 Gutheil TG. J Am Acad Psychiatry Law 26:21–26. Revised.
1. 1988 (Incredibly detailed. SECOND EDITION
removal. Seattle. CA. Berkeley. San Francisco. with the emphasis on safety and security issues. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. Slater FE.
or render this text more useful. which I cowrote with Robert I. the reader. consider first reading the companion volume. expand. from all evidence. including our medical colleagues. and helpful testimony. or have taken too much for granted about your background and experience in any portion of this text.
. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. the courts will continue.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. consider reviewing the successor volume to this one. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). That book may fill in some of the blanks. Although some forces in society.D. M. the more we serve this valuable and necessary function. I welcome comments and suggestions from readers to correct. The Psychiatrist in Court: A Survival Guide. As always. If I have made too many assumptions about you. (American Psychiatric Publishing 2002). to require our services in increasing numbers. if you wish to take your work to the next level. The better we are at meeting the courts’ needs with ethical. On the other hand. Simon. decry the expert witness function and voice arguments for its abolition. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. effective.
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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.. clarification that the forensic examination is not the practice of medicine. 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. is likely to be competent to consent to the interview).
. I read it or have the examinee read it at the start of the interview and answer questions. supplied for consideration.
Gutheil’s interview or interviews. Dr. the person who has signed at the bottom of this letter. Gutheil keep secret what I tell him. Gutheil. SECOND EDITION
Consent for Forensic Examination
by Thomas G. The examination will be one or more personal interviews. or out loud in open court in a trial. Gutheil may write that down for the record. 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.D. in connection with my legal case. Gutheil will explain or has explained to me and I understand that Dr.
. I agree to be interviewed. nor will he suggest any treatments to me or for me. I agree to give up my rights to have Dr. Because I am being interviewed in a legal matter. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. 3. Dr.” or “update” interviews of me by Dr. or have no effect on my case that I can see. that he is not acting as my physician or psychiatrist in doing this interview or interviews. Gutheil will not give me any medical or psychiatric treatment. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. I understand and agree that Dr. (“Dr. I also understand that I am not his patient in connection with or because of this interview or interviews. I understand and agree to additional repeat. in spoken depositions (where lawyers ask him questions). the following: 1. and I understand. I understand that I can take breaks if I want to at any time during Dr. I understand that 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. During this interview or interviews I will be asked a number of questions about myself. “follow-up. Dr. if needed. Gutheil’s questions. This means that Dr.122
THE PSYCHIATRIST AS EXPERT WITNESS. Gutheil”)
I. I understand. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. I understand and agree that Dr. M. most of which will be very personal. Gutheil’s written report or out-loud statements for court may help my case. 4. Gutheil. Dr. Thomas Gutheil. however. and I understand they will be part of the same examination and will follow all the above rules. but if I refuse to give an answer or some answers. Gutheil is a physician and a psychiatrist. Dr. . Gutheil will explain or has explained to me. 2. agree to have an examination by Dr. and I understand that no one can know which one it will be in advance.
. of course. Dr. I certify that I have answered any questions my client asked about the procedure. that individual is. Gutheil’s retaining attorney. a court officer. Signed. free to show it to me. to my assessment. 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. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. or the court as provided by law. Attorney for examinee Print name Date day of .Appendix 1: Consent Form for Forensic Examination
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$ for depositions.D. the radical revision presented here has evolved from that in the first edition for the same reasons. Gutheil”)
1. (“Dr. rescheduling is at mutual convenience. in addition. and the same due for cancellations that occur less than 72 hours in advance. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer.
Standard Letter of Agreement
by Thomas G. including portal-to-portal local travel (c). Gutheil. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. (d)
. at a rate of $ per hour plus expenses. and $ per hour for trial. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition.Appendix 2
Standard Fee Agreement
THE EXAMPLE of a standard fee agreement that follows is annotated
by lowercase letters in parentheses (annotations are explained at the end of the text for this agreement). Dr. Gutheil shall be reimbursed for all time spent on the case. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. M.
please return one copy to Dr. Gutheil. including travel by first-class conveyance and appropriate lodging if needed. and as a condition for its specific to this travel is exbeing undertaken.
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). made out to Dr. Signature below indicates agreement with all (r) these terms. Signed. The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. Failure to comply may void this agreement except for duties of confidentiality (l). 3. (s) Note: Please send all case materials to (address)
. For out-of-state evaluations or testimony. materials. Gutheil by name (h). Gutheil will be unavailable for testimony in person during the month of August (f ). as an advance against which expenses are billed (p). (q) 6. 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. a retainer of $ pected 3 business days in advance. Dr. Payment in a timely (g) manner. 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). Overdue accounts may accrue interest at 6% per annum. Please note that because of vacation scheduling. any existing balance shall also have been paid 3 business days before departure (e). and examinations as discovery rules permit.126
THE PSYCHIATRIST AS EXPERT WITNESS. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. 4. Dr. is the sole responsibility of the retaining attorney or insurer (i). 5. SECOND EDITION
per day 2. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). prorated (k). Before such travel is undertaken. For out-of-state travel. irrespective of case outcome (j) or defaulted appearances. Gutheil’s FID# is . The retaining attorney understands that my forensic work is not the practice of medicine.
can constitute a bias. 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). it saves everyone time and heartache if you spell it out. based on their training. but what can I do? That client just won’t honor his or her obligations. This information frees up the attorney to ask for continuance or rescheduling. Some experts charge differing rates. the “clock” starts when you leave your home or office for court and stops when you return to office or home. l. You are initially retained as a consultant. or a member of a corporation or group practice. this statement makes the attorney agree to that possibility. m. f. others the same. thus. take a videotaped deposition. moreover.” d. deposition. “portal-to-portal. “Consideration” and “agreeing” are trigger words that signal to attorneys. g. that this is a formal contract. Because you will be investing a fair amount in the travel costs. You must be free to withdraw from the case if the contract is breached. k. noncontingent. this clause makes that explicit. dunned for appropriately earned fees. j. If you are the sole proprietor. “You’re right.
.” 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. Every agreement must have an exit clause such as this one.Appendix 2: Standard Fee Agreement
a. or trial. If you do withdraw. For unexplained reasons. c. make that clear so that you don’t waste a lot of time swapping checks between payees. or trial travel. You have the right to request timely payment to prevent excessive backbalance buildup. attorneys are sometimes slow to reimburse travel expenses for interview. will throw up their hands in mock exasperation and say. Some attorneys. i. as it ethically should be. Working for the client. b. that does not mean you should not be paid for the work already done. A case decision that goes against the side retaining you is not grounds for nonpayment. If the retaining party is relentlessly slow. for review. I recommend asking for this secondary retainer before travel. Doc. h. or even retain another expert. n. Your fee is. deposition. To cut through nit-picking. This is a standard rate of interest on overdue accounts and an incentive for timely payment. If you know when your vacation is. e. you may decide to withdraw.
and. others ask for a second retainer (see also Appendix 3 in this volume). “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. some experts simply submit additional invoices.128
THE PSYCHIATRIST AS EXPERT WITNESS. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. for example. When this retainer is depleted. these events do not weaken the contractual ties with the firm. s.
. identifies the attorney’s understanding that this is not the case. On rare occasions. Moreover. at no cost to the attorney but at lost time and possible income to you. after settling the case. parallel with the forensic consent form in Appendix 1. Such attorneys may pay the retainer. making you ineligible for participation with the other side. if the attorney is out of the country. p. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. The retainer is not only a means of establishing the contract but also an actual advance against expenses. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. alas. You are here agreeing to accept signature from a different attorney or a paralegal. give you no work to do. because you did no work. r. and ethical incompatibilities. You have been sandbagged. ask for their retainer back. SECOND EDITION
o. or has left the firm. The wording here. q. legal. Making the retainer nonrefundable tends to eliminate such shenanigans. 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. has handed the case to another attorney.
Detailed Fee Agreement
THE FOLLOWING is an example of a colleague’s more detailed
fee agreement.D. 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. If travel from my office is necessary to perform any of these services. STRASBURGER. LARRY H. and report preparation. psychiatric interview or evaluation. interviews with family members or other persons. I may require an additional retainer. if it appears that substantial services are yet to be rendered. the hourly 129
. This retainer will constitute a credit balance until exhausted. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. Psychiatric services may include an initial consultation. Any credit balance remaining will be refunded upon the termination of my services. review of records. 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. M. consultation with counsel. Thereafter.
literature research. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. If the foregoing fee basis meets with your approval. court order. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. and all travel expenses will be reimbursed. including secretarial service. postage. no refund of the retainer deposit will be made.D. the retainer discussed above. Sincerely. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. setting forth the nature of the services rendered since the prior billing. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Please keep a copy of this letter for your records. messenger services. Larry H. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date:
. 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. 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). Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. Time spent in preparing for testimony shall be billed at the hourly rate specified above. long-distance telephone calls. I will send you a monthly statement. Strasburger. Any excess over the retainer balance is due upon receipt. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. prior to my testimony. Nor shall such failure relieve your obligation to have on deposit. M.130
THE PSYCHIATRIST AS EXPERT WITNESS. American Board of Psychiatry and Neurology Diplomate. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. SECOND EDITION
rates will apply to portal-to-portal travel time. please so indicate by signing this letter and returning it to me with your check for the retainer. All travel shall be by first-class conveyance. expert or otherwise. along with a listing of out-of-pocket expenses. Diplomate. photocopying. as prescribed by statute. court rule. etc.
IN. as well as those found in the companion volume. 2002 131
. MA. however. SEAK.) Binder RL: Liability for the psychiatric expert witness. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. 2008 Ball D: Theater Tips and Strategies for Jury Trials. Inevitably. 2003 Babitsky S. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. not just psychiatry. Falmouth. Mangraviti JJ: How to Become a Dangerous Expert Witness. their quality is variable. Am J Psychiatry 159:1819–1825. 1997 (Though aimed at attorneys. SEAK. These sources are meant to supplement those provided at the ends of the chapters in this book. Falmouth. this has many useful tips on trial demeanor and related issues. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. SEAK. 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. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. 1997 Babitsky S. MA. 2005 Babitsky S. Falmouth. provide at least some information useful for the psychiatric expert. MA. MA. Babitsky S. The Psychiatrist in Court: A Survival Guide. Falmouth. All. 2002 Babitsky S. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. National Institute for Trial Advocacy. SEAK. 2007 Babitsky S. MA. Falmouth. SEAK. South Bend. SEAK. Falmouth.
James Publishing. DC. Tageh Press. Pennsylvania Bar Institute.) Gutheil TG. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. New York. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. useful for checking credentials. at a more advanced level. Simon RI. Edited by Jackson R.) Gutheil TG. 2007. 1994 Rabinoff MA. Routledge/Taylor & Francis. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. 1908 (Purely for antiquarians and those interested in a classic from the last century. SECOND EDITION
Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. LRP Publications. J Am Acad Psychiatry Law 34:482–491. pp 565– 588 McHale MJ. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias.) Dattilio FM. Washington. DC. CA. 2002 (This is designed as the successor book to the present one. Diamond. Commons ML. Wiley Law. MA. MD. 2006 Feder HA: Succeeding as an Expert Witness. Santa Ana. 2008 Rogers R. Analytic Press. New York.132
THE PSYCHIATRIST AS EXPERT WITNESS. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. PA. Glenwood Springs. Oxford University Press. PA. American Psychiatric Publishing. 3rd Edition. 2nd Edition. NJ. Guilford Press. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. 1993 Dattilio FM. New York. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Covise LL. New York. McClure Company. Danvers. Hillsdale. Springer. New York. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. Lippincott. 2001 Isele WP: Under Oath: Tips for Testifying. LRP Publications. American Psychological Association. J Am Acad Psychiatry Law 29:313–318. 2007 (Focuses specifically on the testimony phase of expert work. New York. Williams & Wilkins. CO. in Learning Forensic Assessment. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Adams KM. et al: Expert Witnesses: Direct and Cross Examination.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. 1995 Kwartner PP. Mechanicsburg. 2003
. Mulligan WG. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. Baltimore. Horsham. 1993 Gutheil TG.
links. MD. Lightfoot. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. Beth Israel-Deaconess Medical Center. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. Gutheil TG. All experts should join. American Psychiatric Press. Harvard Medical School. Anderson RM: Mastering Expert Testimony. 2001
. Shuman D: Clinical Manual of Psychiatry and Law. 1993
http://www. and links. Washington.Appendix 4: Suggested Readings and Web Sites
Siegert M.com/forensic/f_psych. http://pipatl. American Psychiatric Press. Mahwah. discussions. J Am Acad Psychiatry Law 35:346–349. 2003 Simon RI. Wiley. http://www. DC. Washington. DC. Gaynor Publishing. New York. Washington.org: Web site of the Program in Psychiatry and the Law. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. VA. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. MA. NJ. Kochansky J: The Complete Psychiatric Examination (videotape). 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. with multiple resources. and links.) Simon RI. Falmouth. Section of Litigation. Disclosure: This author is a founder. SEAK.org: The main Web site for the American Academy of Psychiatry and the Law.html: Another multiple resource site. http://tncrimlaw. WW Norton. articles. American Bar Association. http://forensic-psych. Erlbaum.reidpsychiatry. publishing a vast range of information and offering excellent training courses. American Psychiatric Press. Washington.aapl.SEAK. 1997 Younger I: The Art of Cross Examination.com: Web site of author’s colleague HJ Bursztajn. New York. http://www.com: A host of resources by two top attorneys. DC. and postings. 1976 Zobel HB. the national forensic psychiatric organization. 2004 (Study guide available since 2006. 2nd Edition.com: A resource-rich site with articles. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. A compendium of sources. 2007 Tsushima WT. DC.
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Boilerplate Standardized legal language. and so on. Decedent The person related to the case who has died. it may consist of records and documents.Glossary
This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. such as relatives or executors. In reality the actual deposition is the transcript of the deposition.” it is always “competence for what?” The criteria for the different competencies are often distinct. it is usually “court-tested. or tradition. on mainframes) and may be used in attempts to impeach the expert at trial. consult your retaining attorney. In case of ambiguity. Thus in a suicide malpractice case. the criteria for competence to make a will and for competence to stand trial are quite different. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. legal documents such as depositions and interrogatories. lab results. case law. two or more lawyers..” Deposition Usually believed to be the actual ceremony. in which the witness. in the context of discovery. Competence The capacity or ability to deal with a certain task.” that is. Competence is decision-specific and usually based on criteria. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. which will live on in perpetuity (i. it has been accepted in actual cases that validate its use. for example. Instead. It is not derived from the facts of the specific case at hand. usually derived from statutes. there is no generic “competence. 135
.e. the practical and relevant definitions are provided. the plaintiff is the (live) person bringing the suit. the person who committed suicide is the “plaintiff’s decedent. interview data. that is simply plugged in to the appropriate place.
See also “Trial by ambush. challenging the party moving for a particular result. but this is the established term. in which information is gathered by the attorneys in order to prepare the case.” Discovery That early phase of litigation. may be used as well. thus decision maker rather than fact finder. in “trial by ambush” jurisdictions this step is skipped.. and various motions accomplish some of this phase. borrowed from western and noir fiction and film. “Hired gun” A term.136
THE PSYCHIATRIST AS EXPERT WITNESS. and other medical contexts not limited to psychiatry. The GAL may be thought of as a kind of utility infielder for the court. usually exchanged between opposing attorneys to alert them to your projected opinion. and the like. interrogatories. Fact finder Practically speaking. after the civil or criminal matter is set in motion. but a psychiatrist. SECOND EDITION
Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. the fetus in an abortion decision).. says what the attorney wants said rather than objective truth). less ordinary procedures might include covert surveillance of a suspected malingerer. The GAL is usually an attorney. this limitation constrains the data gathering and the conclusions that may be drawn from the database. use of a private investigator to obtain information. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i.g. disability. the judge(s) and/or jury. since the goal of the process appears actually to be a decision. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. Depositions. IME (independent medical examination) An important part of the discovery process in malpractice.e. The IME may be resisted by some attorneys. Finding See “Opinion. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation.
. Novice experts see this as a misnomer. or an attorney-psychiatrist team. if so. to visit a nursing home where resides a person whose competence is being challenged) and other duties.g.. The role may include representing an unrepresented party (e. investigating in the field for the court to determine the situation leading to the proceeding (e.
In a practical sense. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. the expert can retreat when in doubt about what is going on or where the inquiry is going. the whole truth. In addition. when confusion sets in. Opinion The final phase. the court makes the finding that defines the outcome of the case. governed by legal criteria that vary by jurisdiction. the “bottom line.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. The expert offers an opinion derived from the database and training and experience. and widely misunderstood by many of those. Interrogatories A set of formal. 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. but without actually retaining. There are several
. experts should review these carefully for accuracy as to their opinions. One of the most challenging assessments in all of forensic psychiatry. See also “Standard of care. the oath is a place of safety to which.” 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.” of the expert’s efforts. and the like. “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. disliked by almost all parties in a case as well as the general public. because variations from these answers at trial will be used actively in attempted impeachment. sometimes without even informing. the whole truth is often supplanted by “the admissible truth. Like other sources of bias. The “seduction” may involve flattery. tell the narrow truth. falling below the standard of care in the care rendered in the instant case. and nothing but the truth. the witnesses are to testify in court only with testimony that they can swear to. elaborate dinners and entertainments. and let the chips fall where they may. Negligence In a medicolegal context.” In practical terms. Of course. the insanity evaluation is retrospective. retreat to the oath. promises of much future work if the opinion in the present case is favorable. these are prepared jointly by attorney and expert. its influence should be resisted by the expert. the expert.
The expert should be familiar with the relevant local standard and its definition. to prevent the experts from hearing other testimony.” “51% certainty. Appendix 4. but they cannot by themselves reform the exploitative personality. this term usually refers to service without payment.” An expert testifying about a case must be familiar with the relevant standard.138
THE PSYCHIATRIST AS EXPERT WITNESS. which broadly applies to information that should not be shared with others in many contexts. and the like. 2001: “The Phantom Expert.” in suggested readings. “get the money up front. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given.” and so on. Pro bono Short for pro bono publico (for the public’s good). Several jurisdictional variants include “more likely than not. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. 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.” which the expert must also know. See Gutheil et al. Sequester The separation of witnesses. Unlike confidentiality. thus an attorney or an expert might perform a relevant duty for free.
. 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. privilege is narrowly construed as applying in legal or quasi-legal contexts only. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. a few find ways not to pay you what they owe. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. administrative law procedures. particularly experts. hearings. the standard is usually national but may be local—the “locality rule.” “reasonable medical (or psychological) probability. SECOND EDITION
variations on this ploy. on the theory that this might inappropriately influence or contaminate the witness’s future testimony.” Though most attorneys are responsible. the origin of the frequently invoked mantra. by excluding them from the courtroom.” “reasonable psychological certainty.
after review. The expert has control only over those accepted or rejected. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. Tarasoff v. “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. insane.” Experts should refrain from stating the ultimate issue in their testimony. but the fact finder renders the finding that embodies the “ultimate issue.” Jurisdictions vary widely as to the applicability of this principle. discovery proceedings such as interrogatories. these cases. This rate should be seen as a rough guide. Ultimate issue The final outcome of the legal process: negligent. (See also “Opinion. The image is that of a defendant giving a trivial blow to the head of the plaintiff. 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. 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). The expert proffers an opinion. not as a valid method of determining one’s standards of acceptance. competent. a blow that would ordinarily not be expected to cause harm. accepted as meritorious versus those rejected as invalid. and expert disclosures (see “Disclosure”) inform the other side in advance. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. not those that come in for review. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. etc. Turndown rate The ratio of cases that are.”)
. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. Among other goals such as saving time. guilty. usually based on criteria.” or “duty to warn third-party cases. such as whether a witness should be accepted as an expert for the court. depositions. but the plaintiff has a thin or “eggshell” skull and is severely injured. which involve a victim in addition to the treater and patient. are sometimes referred to as “third-party cases. In the majority of situations. Because the usual duty of clinicians is to the patient alone.
Voir dire An expression from the French. in the present context. evasive testimony designed to avoid answering a question directly or at all. Chapter 4 (reference 11). 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.140
THE PSYCHIATRIST AS EXPERT WITNESS. to say” but more relevantly.
. work product occupies a special category of privilege and is usually not discoverable. “The Problem of Evasive Testimony” in Suggested Readings. the purpose is to allow preparation of cross-examination or rebuttal. See Gutheil 2007. Waffling An expert’s rambling. There are a number of possible causes. discursive. Work product A designation of privacy for material that is part of the attorney’s trial strategy. literally “to see. This may apply to certain communications between expert and retaining attorney.
23–24 Air travel. 105–106 loyalty to retaining attorney. 115 airline guides. 24–29 social relationships with. Dress and appearance Attorneys communication with opposing attorneys. 104 Advocate for truth. use of. 47–48 depositions. 116 Alcoholic beverages. 45. See Ethics informing of availability as forensic expert. 8. See also Demeanor
. 115 Alarm clocks. 82 negotiations with retaining attorney. 105–106 Analogies and metaphors. 16 treater bias. 68–69 Attire at trial. apparent. 17 problems of loyalty and identification. 62 needed for forensic functioning. 70 “Attorneys’ Guide to Experts. 121 American Academy of Psychiatry and the Law (AAPL). 74. 16 work product privilege. 74 Accuracy. 63 Blackboard illustrations at trial. 78.Index
Accessibility airplanes. 18 Billable time. 16 meeting with before deposition. 106 American Psychiatric Association (APA). 68 honesty of. 52. 9 nonsexual seduction. 100 of expert opinion. 59–60 Advances minimum fee. 37–38 Ambivalence. 19 hindsight bias. 7. 4–5. 32. 4. 106 Beepers at trial. 82 of reports. 4. 65 fighting at depositions. 112 first class. 80 Body language. 115 meals. 82–83 Announcement of forensic practice. xiii. 52. consulting with retaining attorney during. 3–4 Advertising. 61 retainers. 105–106 American Board of Forensic Examiners. 30–32 misunderstanding of clinical issues. 115 courtroom. 14 Adversarial context. 26–28. 60 Addressing judge at end of testimony. 4–5. 44.” 106 Audiotaped interviews. 35 Background of expert. 105 Assumptions. 87–88 Admissions. ethical model. 117 “Alibi” issues. 49. 16–18. See Clothing. 77 Bias. 49. 113 Bipolar disorder. 37 Alterations ethical. 100–101 Alternative scenarios. 70 merit of retaining attorney. 15 Agency relationship. 25 Beat the Press (Fulton and Guyant).
4 Class action cases. 61 trial. 48–49 involving the insanity defense. 33–34 merit of attorney. 86
Borderline personality disorder (BPD). 16. 40 Child custody cases. 82 Clothing packing for travel. litigants. 4. 103–108 Camera. 108 Browbeating by retaining attorneys. review of. 13–14. 116–117 metal detectors at. 19 Capital criminal cases. 24. 71 Candor. 73–79. 77 Change of opinion. 32 Building a practice. 65. 137 report. 33 The court. 30 validity of case. 61. 28 Correction of answers at depositions. 82 Breaks and recesses depositions. 28–29 Contingent fees. 59–60. 66 Concessions at depositions. 77 unpacking at hotel. letters to. legal. 34 Compound questions at depositions. 62. 85–86 code language between attorney and expert. questions about. 39–40 Cellular telephones. 33 scheduling. 64–65 Cough drops or throat lozenges at trial. 18–19. 77. 116 Coaching. 34 misunderstood by attorney. 113–115 trial appearance. 47–48 Competence issues. 44 nonconfidentiality warnings. 70–71. 107 Brokering a case when unable to handle it personally. 33–34 threshold question. 101–102 Crises while testifying at trial. See Attorneys Countertransference. 14 criminal responsibility cases. xiii. 7–8. 100 Consultation services. 5. 86–87 Cross-examination. 113–114 Case name or citation in written report. SECOND EDITION
Complaint. 30–32 “nothing to go on” problem. 32. 81 Communication with opposing attorneys. how to handle in written reports. 99–100 Consent Form for Forensic Examination. 14 Carry-on luggage. money. example of outline. 99. 121–123 Constraints on time. 48–49. 65–66 Confidentiality breaches as basis for suit. 83 Courtrooms. 118 Criminal cases capital cases. 23 Clinical material. See also Video depositions gazing into the lens.142
THE PSYCHIATRIST AS EXPERT WITNESS. 30 Causation. 95 Court reporters. 29–40 documents. 83 breaks and recesses during. or experts. 58–59 avoidance by attorney. or data. 85–86 Brokerage organizations for expert witnesses. 38 Conflict of interest. 74 Code language between attorney and expert. 135
. 118 Counsel. 82 Child abuse issues. 17. 81 delaying tactics. 25 Conflicting stories from parties in case. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 69 Concentration at depositions. 97 Case review.
60 malpractice suits. 8 Double billing. 64–65 later evidence affecting opinion given at deposition. 58–60 goals of opposing attorney. 58–60 inappropriate questions. 29 Defendant. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 68 treatises. 68 of experts at trial. See also Confidentiality. 66–67
interruptions. 38 of experts at depositions. 4–5. 66–67 demeanor of deponent expert. 66–67 locking in/limiting expert’s testimony. 80–82 of examinees during interviews. 69–70 videotaping of. Written documentation Doing no harm. vast amounts of now stored online. 79–80 restructuring. Records leaving behind after trial. 59–60. 65 correction of answer. 114
. 85 Dangerous examinees. 68 final preparation. 113 Dress and appearance packing for travel. 77–79 Departure from courtroom. 117 Drugs. 63 goals of expert being deposed. 68–69 breaks and recesses during. 74 Disclosure issues. 91–92 privileged information. 61. 116 Drinking. 47 nonverbal responses. 64 priority. 75 Decision to take case. 83 trial. 69 Direct examination. See also Depositions interrogatories. 64 opinions and their bases. 135. See Parties in case Demeanor cross-examination. 97–98 Daubert challenge. 68 fighting by attorneys at. 59–60 assumptions. 34 assessing. 80–82 leading questions. 57–58 nondiscoverable material. 70 “gerrymandering” clinical data. 85 reasons for. 113–115 trial. 34 stenographers in. 64 language/word choice. 64 objections. 76–77 written documentation to give listing of. review of. 85 quotes. questions about. 135 admissions in. 77 unpacking at hotel. Reports. 84 pauses before answering. 57–72. 64. See Privilege Documents. See also Interviews. 31 Database. 64–65 curious questions. See Records. 59 limits of expertise. 92 Disabled individuals access to airplanes. Privilege Discovery. 65 questions and answers. 115 access to courtroom. 62–63 concentration during. 66 concessions. 88 trial preparation. 5–6. 135. 62–63 reviewing. 26 pauses before answering. 58–70. 135. over-the-counter. 73 use during trial. 65–66 consulting with retaining attorney during. 87–88 Depositions. 61 compound questions or answers.Index
demeanor during. 59 past. 34. 83–86 “yes” or “no” questions.
67 Expenses. 15 remaining neutral. 32 Good writing. 125–128 travel costs. 36 “False memory” cases. 26–28 detailed fee agreement. 96 Harm. See Fees. 1 functions. See Countertransference Forensic practice. See Air travel Food. ethical model. 129–130 standard fee agreement. SECOND EDITION
Family or friends. 28. issuing. 75 Ethics. See also Hired guns definition. 115 Flip charts at trial. 38 “nothing to go on” problem. 49–51 examples. 60 False allegations. 16 marketing a forensic practice. 82 Hotels. 17 special expertise of. 5. 115 Feedback. 112–113. always soliciting. 2 Forms detailed fee agreement. 13–14. 15 loyalty to retaining attorney. principles of. 100–101 billing. 75–79. sample. scholars in. 87–88 Evidence. 25 Flashlight. sample. 80 Flying. doing none. 61. 38. 33 oaths. 107 new facts at trial. 62 Hired guns. 30–32 of experts. 25 External consistency of story. importance. 28. or experts. 47–48 cross-examination. 6. 13–21. 88 Fees. 44. deposition and trial. 80 Fabrics. of sexual misconduct. principles of. 95–96. 18–19 honest advocate model. 112 Failure of retaining attorney to pay fee. 51–52 Hindsight bias. 6 High-profile cases. 8 Hearsay. 14–15 Etiquette at trial. 9 Humor. for travel. 115–116 Humility factor. 37 Eye contact at trial. 28 Fairness. 15 Honesty. See also Ethics of attorneys. 28. 113 contact with opposing attorneys. 52–55 History of expert. 125–128 Gestures at trial. See Meals Forensic countertransference. 103–108 Forensic reports. sample. See also Written documentation Forensics. sample. 7–8. 15 social relationships with attorneys. 113 Fitness as expert. 28. 50–51 interviews. 78
Eating. 24 Entrance of judge. litigants. staying with. See Meals Emotional injury cases. 16 turndown rates. See also Conflict of interest advocate for truth model. 136 spotting the other side’s. 82 nonconfidentiality warnings. xiii–xiv evidence in. 61. 67 marketing. 78 Global requests. 49–50 Employment relationship. Reimbursement for travel Expert witnesses. 129–130 standard fee agreement. 1–3 Experts honesty of. 44
. 15 altering reports. 25 Honest advocate.144
THE PSYCHIATRIST AS EXPERT WITNESS.
137 Intervening causes. 34–35 plausibility of case. 86 Malingering. 7 Listings as a marketing tool. 6–7. 87–88 Lecturing as marketing tool. 112 Meals airplane food. 18–19. 35 priority. 106 Locality rules for standard of care. 38 emotional injury cases. for travel. 107 strategies. 97 to the court. 106 publishing/writing. 86. suspending. 49. 16. 84 Leaving courtroom. 46–48 social service history. 45 locality rules. 83 testimony before. 107 Interference of attorneys during interviews.Index
Identification with retaining attorney. 51–52 Medical records. 6 entrance of. 37–38 criminal responsibility cases. 45 records. 47 elements of malpractice. 38 note taking. 36 presence of attorney. 91–92 recording. 36 Internal consistency of story. 79. 99. 35 retention of records. 98
Laptops. 107 lecturing. 18 Integrity. 16 Insanity defense in criminal cases. 106 Letters to attorneys. 40 videotaping or recording. 45 Juries. 2 entrance. 39 Interviews. 115 Lawyers. 116–117 Media coverage and cases. 106 listings. 87–88 dismissal by. 45 Lodgings. 75 informing of availability as forensic expert. 45–46. 112 Judges addressing. 37 alternative scenario. 137 Insurance challenges. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). pros and cons. 105 ethics. 36 internal consistency of story. level of scrutiny. 36 nonconfidentiality warnings. 48–49. 35 order of. 82 Jet Smart (Fairchild). 138 Marketing a forensic practice. 37. 49–50 external consistency of story. 37 interference. 34–35 plaintiff. 34–38 “alibi” issues. 106 specialization. See Attorneys Leading questions on crossexamination. review of. 43–48 creating timelines for. 49 demeanor of examinee. 79–80 Jurisdiction-specific language. 34 depositions. importance of. 119 Materials. 103–108 announcement of practice. 95 Likelihood principle. 47 standard of care. 115 during trial. 36 Interrogatories. See Hotels Loyalty to retaining attorney. 78 Jargon. 35 Involuntary gestures at trial. 34
. 75 respect for. 52 Malpractice suits. 53. 57–58. 105 Judgment.
See also Marketing a forensic practice New facts at trial. 97 communication with opposing party. 16. 85 depositions. See also Confidentiality deposition. 115 Preexisting illnesses or conditions. 97 Preparation for trial. 45. 117 Metal detectors at courthouses. 49–51 Practice pointers. 26–28 Networking. 24 decision to take case. SECOND EDITION
Online. goals of. 15 Objections depositions. 64 interrogatories. 113–115 Parties in case case name or citation in written report. 38 Nonsexual seduction. 74. 68 Pauses before answering cross-examination. 47–48 Outcome of case. 52–55 contact with. 58–60 Opposing expert witnesses. 13–14. 74 Prior testimony by expert. 86 Nonconfidentiality warnings. 69 Plaintiff. See Emotional injury cases Physicians’ Desk Reference (PDR). 100–101 Posttraumatic stress disorder. See Parties in case Plausibility of case. 49–51 Morality. 25 bias. 67 National Forensic Center. 24–25 timing and scheduling. 64 Peer review for testimony. 4–5. 26 Opposing attorney. not compromising. 104. while traveling. 70
Medication issues as basis for suit. 82 interrogatories. 34–35 Patience. 35. 81 Postreport negotiations. 24–29 background of expert. 117 Pretrial conferences. 8 Pens and pencils at trial. See Trial preparation Prescription medications. 15. 112 Packing for travel. 82. 44 Melatonin. 91–92 Privilege. 80 Misunderstanding of clinical issues by attorney. 29 fees. 40. 77 Personal injury cases. 36 Politeness. writing for. 47–48 plaintiff interviews. 47 during interviews. 17–18. effect of. 50 Preliminary reports. 16–18 clinical and forensic issues. 137 Note taking importance of. 82–83 Microphone use at trial. 57–58 Objectivity. 65 work product privilege. 5. 97
. 82 Mitigation of damages. 26–28 fitness as expert. 137 depositions. 138. 30 Occasions. 66. unfailing. 25–26 Priorities. use of. 77 keeping notes. 88 The Packing Book (Gilford). 118 Metaphors and analogies. 24 request of retaining attorney. consulting with retaining attorney at. 137 Negotiations with retaining attorney. See also Web sites storage of past depositions. 14. 57–58 trial. 65. 91–93 Precautions. 71 Oaths. 54.146
THE PSYCHIATRIST AS EXPERT WITNESS. 39 vulnerability of plaintiff (“thin skull”). 114. 106 Negligence. questions of. 25 initial contact.
91–93 personal conflicts. 3. See Breaks and recesses Recorded interviews. 107 Standard of care. 36. 40 case review. 49 Sequestration. 112 Reality-testing. 24 Publications by expert. 16 Social service history. showing toward juries. 113–114. 106 Publicity and cases. 54. 3 Suicide malpractice cases. 46–48 medical records. maintaining appropriate. 34 retention of. 26–28. 112 Reports.Index
Pro bono work. 97–98 Supporting data for written reports. 54 Resources for suggested readings. Robert I. 44. 34 malpractice cases. 100 Recesses. negotiations with. 68 Storytelling. See also Written documentation Reputation of expert. review of. 70 Skepticism. 28–29 Running shoes. 75–76 Seduction. 25 Required action. 25 Reasonable medical certainty. 46 criminal responsibility cases. 97 Rehearsing testimony. 53. 107. 5–6. 6 Specialization. 92. See Oaths
. 33. 18. 9. obtaining in advance. 79. 6. 74 Reimbursement for travel. 73–74. 40 social service histories. 119 Site visits. 38–39. 138 Standard of proof. 82 Silent treatment. 131–133 travel books. 82. reasonable medical certainty. 112–113 Santayana. 117 Social relationships with attorneys. 40 Returning calls. staying with. 64. suggested. importance of. 104–106. 31–32. 113 Relatives. traveling with. 51–52 Quoted passages. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 45–46. 79 Stenographers. 6–7. response to. 14
Retaining attorney. 9. 106 Psychiatric malpractice suits. 112 Respect. 66 Simon. 115 Rental cars. See also Packing for travel Supplementary reports. 6 Scheduling issues. nonsexual. 99 Surprised expert. 81 Sworn statements. 131–133 travel books. 85 Readings. See also Malpractice suits Suitcases.. 95–102. power of. 83 Retainer. 7. See also Court reporters in depositions. 47 Socratic method. 48 Sleeping. xiv. 138 Professional meetings. 93 Seating at trial. 138 of witnesses. 108 written documentation. 75 Sexual misconduct cases. level of scrutiny. 138 Rebuttals. 35 Records. 7. 33–34 CATO model for. 47 Referrals. See Negotiations with retaining attorney Retention of records. 49 database of. 25–26 as marketing tool. review of. 17–18 Self-serving behavior. George. 15. 108 Roles of expert. 43–45.
bringing into. 74. 112 Traveling. See also Cross-examination prior testimony by expert. 26–28 travel time. See Crossexamination demeanor at. 74 Truth telling. 8–9 Treatises. 75–79. 74 rehearsing. 87–88 dress and appearance. 86–87 cross-examination. 78–80 Telephones calls during trial breaks. marker board. 60. 73–90 beepers/cellular telephones. SECOND EDITION
cough drops or throat lozenges. 74 using database during. blackboard. 115–116 meals. or flip chart. 77 etiquette at. 74 Teaching role. 112–113 travel information. 112 Travel expenses.148
THE PSYCHIATRIST AS EXPERT WITNESS. 69–70 Treatment recommendations. 108 wake-up calls. 118 crises while testifying. 86 pens and pencils. 78 illustrations. 80. 77. 34 for depositions. 113 Travel service. 115 lodgings. 80 language/word choice. 77 pointers. 139 Taxicabs. 14–15. 77 breaks and recesses during. effect on standard of care. 28–29 Third-party cases. 74 pitfalls. 82. 73–74 practice sessions. 86 cellular telephones. 82–83 lunch during. 44. 74. 74 presentation. 112 Traumas. 82. importance of. 25–26 roles of expert. 79–80 timing and scheduling tips. effect of. 86. 112–115 sleeping. 49–51
Tarasoff-type cases. 80 pretrial conferences. 91–92 seating at. 116 Testimony at trial. 45–46 Types of cases. 87
. 77 courtroom. 79–80. 116 Treater. 116–117 microphone use. 77. 76–77 water. 117 time planning. 139 Type of practice expert has. 80 new facts coming to light. 51 evaluating. versus expert. 117–118 Trial preparation. 35 keeping track of. 92. 77 returning calls. 61. 48–49 emotional injury cases. 113 examinees. 43–56 criminal responsibility cases. 81–82 priority. 77–79 departure from courtroom. 74 planning. 19. 8. 111–118 billing. 75–76 supplies. 76–77. 44 Throat lozenges or cough drops at trial. 77 what to bring into court. Honesty Turning down cases. 112 unpacking. 35 flying. See Meals packing. 80 humor. 55. 13. 37–38 Trial. questions about. See also Ethics. 117–118 testimony. 39–40 Travel books. 118 Time creating timelines. 85. 64 for interviews. 85–86 conclusion of questioning. 73–74 language/word choice. 87–88 eye contact.
97 interviews/items reviewed. 97 opinion. 96 rebuttals.Index
high-profile cases. 97 principles of good writing. 99–100 constraints on time. 51–52 psychiatric malpractice cases. how to handle. 43–48 “Ultimate ethical test. 107 Weight to be given to on-site psychiatrist’s observations. 97 occasions. 97–98 jurisdiction-specific language. 64–65 reports. example of outline. 82–83
Word-of-mouth referrals. 115 in courtroom during trial. 70–71 Videotaped interviews. 140 examples of. 98–99 postreport negotiations. 53–54 Wake-up calls. 100 criminal case.” 2. 70. 108 Work product privilege. 117 Word choice depositions. questions of. money. 100 referrals. 116 Water during air flights. 100–101 trial preparation. 95–102. 77 Web sites. 44 White noise. 35 Visual aids. 98 letters to attorneys.” 18–19 “Ultimate issue. 101–102 database listing. 97 supplementary reports. 97–98 headings. 82 Values. 79. 67 Video depositions. 4–5. 7 Waffling in answers. 140 Written documentation. 97–98 supporting data. 100–101 preliminary report. 139 Understanding of clinical issues. 74. 104–105. misunderstanding by attorney. Reports case name or citation. 97 conclusion. 74 Voltaire. 99
. or data. 98–99 conflicting stories from parties in case. See also Records.