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The Psychiatrist as Expert Witness
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Massachusetts Washington. M.The Psychiatrist as Expert Witness Second Edition Thomas G. DC London.D. England . Gutheil. Harvard Medical School Boston.
[DNLM: 1. c1998. Includes bibliographical references and index.appi. Moreover. Forensic Psychiatry. Psychiatrist in court. Gutheil. Inc. Food and Drug Administration and the general medical community. p. Evidence. I. Thomas G. Inc. II. Inc. therapeutic standards may change. Dr. however. specific situations may require a specific therapeutic response not included in this book. paper) 1. ISBN 978-1-58562-342-6 (alk. Title. Gutheil has no competing interests to disclose.org Library of Congress Cataloging-in-Publication Data Gutheil. Forensic psychiatry—United States. 2. Companion to: The psychiatrist in court / Thomas G.. Thomas G. Gutheil. 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.S. 1000 Wilson Boulevard Arlington. and routes of administration is accurate at the time of publication and consistent with standards set by the U. VA 22209-3901 www. schedules. — 2nd ed. . Expert Testimony. cm. 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. 2. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Books published by American Psychiatric Publishing. Expert—United States. and that information concerning drug dosages. For these reasons and because human and mechanical errors sometimes occur. W740 G984pf 2009] KF8965. Gutheil. The psychiatrist as expert witness / Thomas G.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. As medical research and practice continue to advance. American Psychiatric Publishing. Copyright © 2009 American Psychiatric Publishing.G8 2009 614′.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.
. 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 . . . . . 14 Ethics and the Oath . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . 7 The Hired Gun Problem . . . . xiii Acknowledgments. . . . . . . 10 2 The Expert’s Ethical Universe.Contents About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . .
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
About the Author Thomas G. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. the textbook.D. Harvard Medical School. he has taught many clinicians about the interfaces between psychiatry and the law.. received the Manfred S. he has received local and national writing and teaching awards. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. Clinical Handbook of Psychiatry and the Law. Through more than 250 publications and many lectures and seminars in national and international fora. Gutheil. Appelbaum. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. M. M. and a Distinguished Life Fellow of the American Psychiatric Association. 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.D. and now in its fourth edition. Recipient of every major award in the forensic field.. coauthored with Paul S. xi .
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other changes in this second edition include: a glossary of useful terms. 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. Forensic psychiatry is growing in popularity. and many a practitioner feels the urge to try out this fascinating realm. this edition also contains things I wish I had said in the first edition. xiii . in fact. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. and cases or principles that I have learned about since the first edition. interspersed with frenzied bursts of action. Often the greatest difficulties in this profession occur at the outset. and at the request of past readers of the first edition.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. 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. an expanded discussion of bias in testimony. that book is a good place to warm up. additional illustrative examples. Moreover. it provides tedious stretches of waiting and inactivity. expanded definitions of key concepts. if you feel shaky about the basics. before experience itself has had the opportunity to provide the most durable and valuable instruction. As an aid to present readers. a model forensic consent form for examination. From another perspective. 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. you might consider this book to be next in logical and chronological order to the companion volume in this series. The Psychiatrist in Court: A Survival Guide. besides the requisite updating of references and suggested readings. Such service presents many stresses and equally many satisfactions. In addition. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own.
You who are in that position are also my audience. the novice court goer. M.D. kicking and screaming. . the later chapters may yet prove useful. Thomas G. and informal discussion in a user-friendly tone replaces scholarly discourse. This new updated edition. I hope you find this approach useful. perhaps— dare I say it—interesting and even fun. SECOND EDITION If your early court experience has not been too traumatic. Best wishes for success in your burgeoning career as an expert witness. you. drawing on developments subsequent to its first version. but choosing to go. Indeed. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. whenever possible.xiv THE PSYCHIATRIST AS EXPERT WITNESS. concrete advice replaces abstract theorizing. attempts to provide some of that practical. in part because they represent material never covered in other sources. The more seasoned expert may wish to skim over the more familiar material in the text. hands-on mentoring and guidance that were not readily available in the past. Gutheil. 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. for such readers.
Harold Bursztajn. Esq. M. to Drs. Harvard Medical School. Resnick. Phillip J. xv . and Ms. Hilliard. Candace Love of On-Point Research for valued assistance in compiling resources.D. Larry Strasburger. for permission to use some of his material on writing for court. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. and Shannon Woolley for their careful review and most helpful critique and comments. I especially thank “Dr.” James T.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center.. and to Ms.. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. Ellen Lewy for absolutely indispensable assistance with the manuscript. Stephen Behnke.
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even if those conclusions are based on others’ observations. to provide information and understanding relevant to the legal system’s concerns. the concept of a psychiatric expert witness. clinically defined. is a psychiatrist who uses particular skills. knowing a lot about a certain topic and having extensive experience therein. More narrowly. the question of what makes an expert witness is more complex. the question “What makes an expert?” seems to answer itself: expertise makes the expert. that is. Indeed. In the courtroom setting. both clinical and nonclinical.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. 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. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. in contrast the expert is entitled by the role to draw conclusions. In this book. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. an expert witness may review a chart filled with other clinicians’ observations 1 . this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. For example. 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.
or malingering. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. incompetent.. However. some questions can only be answered by a specialist. the court system needs expert witnesses in a burgeoning variety of technical fields. .I do not want someone who [merely] teaches others about it. the expert is to educate the retaining attorney. proclaiming their ultimate faith in the jurors themselves. then the judge or jury. Under this model. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. I believe this person. the jury is free to accept or reject the expert’s testimony in whole or in part. about matters that are beyond lay knowledge or decision making. I also want someone who has clinical experience and is doing that which he/she is testifying about. 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’d want to be treated by this person because he/she makes sense. What I find bemusing is the fact that. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. and so on. For that matter. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent.” You want someone who will present in a way that the jurors would be inclined to say this. competence. 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... because what an expert offers is “only” a witness’s opinion. Note in regard to the issue of ultimate findings.2 THE PSYCHIATRIST AS EXPERT WITNESS. that is. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. at times. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice.” This issue is discussed further in later sections of this text. from ballistics to the temperature of coffee sold at fast-food franchises. are the very same ones who had retained me on a previous case. opinionphrased descriptions rather than conclusory statements: “in my opinion. such as competence or insanity. Indeed. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. not the ultimate finding that a judge or jury decides. insanity. As a rule experts should limit themselves to criteria-driven. if I had this problem.
eyes glowing with interest.Introduction: What Makes an Expert? 3 Another scholar. statistics. clinical entities. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. although basic. and so forth would have accomplished this vital storytelling purpose. Despite his doubts. demographics. however. “Where are the communion pictures?” Pressed for a less cryptic expression. with Figaro kneeling on stage taking the measurements of his marriage bed. The power of storytelling was captured in a movie about the career of Mozart. 3) make sense out of the law. is the adversarial context. or resolved or otherwise put to therapeutic use. and an adversarial atmosphere are problems to be avoided. causation. a law professor. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. (2. . In this chapter. and throughout this book. Most clinical work occurs in the context of the alliance. are so essential to this work that I review them in the following discussions. consider this scene: In the movie Amadeus. The foremost of these. went even further by listing the functions of the expert as being to 1) tell the story. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. 2) make the fact finder want you to win. oppositionality. The highly experienced defense attorney who had retained me was heard to mutter at one point. surmounted. 4) help the fact finder see the facts. The emperor leans forward. at family functions. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. Showing pictures of the deceased at communion. some points. he has become engrossed in the story. the emperor is initially resistant to Mozart’s novel music. and the resulting probabilities. Mozart begins to describe the opening scene of The Marriage of Figaro. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. syndromes. and the one often most troubling to clinicians. and 5) argue the case (1). In one scene. pp. he noted that the plaintiff ’s attorney had failed in a crucial storytelling function to make the person who had committed suicide come alive in the minds of the jury so that they would be sensitive to what had been lost by his death. conflict between the parties.
. 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. Although there may be as many views of the patient as there are team members. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. whether testifying or consulting.” a mandate that may trump other claims on your agency. because that position confers greater neutrality and protection for your efforts. such as child custody evaluations. for whom am I working? Your answer will clarify your location within the adversarial framework.e. ambivalences may be divided between the two parties in the case rather than felt internally by either.e. In the legal context. 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. you usually work for the patient. render highly complex the question of agency. and other papers that the attorney generates in the course of litigation. in a forensic setting. memoranda. they are not case-related documents and therefore are protected from disclosure. files. Com- . the court situation is a zero-sum game: one winner. Note for completeness that certain forensic contexts. Like other consultants. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. In medicolegal work.. For example. must first ask the question. as well as the usual lack of a physicianpatient relationship (i. you work for the consultee (i. you usually do not). In other words.4 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. Unlike the search for consensus in the clinical setting. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). I define the term work product to include the notes. in the forensic setting. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. The question of whom you work for also will alert you to major pitfalls of bias. the adversarial context is one of the “givens” in the situation. even if it is a compromise (3). two of the victims of this concept are ambivalence and complexity. This specialized topic is beyond the scope of this book. the retaining attorney or court). both of which reside in every case and every patient or litigant. in the clinical context. The Prime Question Any forensic psychiatrist. one loser. The usual guiding principle in such determinations is “the best interests of the child.
with exceptions. fantasy. Therefore. The term also suggests that an expert’s opinion rests on a base. when in doubt. court-related issues are often matters of public record and public exposure (in open court).Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. it should. the forensic perspective almost always extends beyond the individual examinee. is private and confidential. convicts. or impression. suspects. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. As we will see later. including records. litigants. your personal attorney can always give you advice on nondiscoverable matters. or basis. Warnings are further discussed in later sections about the interview itself. my own or others’ interview notes. . reports. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. 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. 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. 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. legal documents. One trenchant reason for this approach is to obtain corroboration or discorroboration. Although therapy usually transpires within the patient’s self-reported data. lest they be exposed prematurely to the other side. correspondence. Most attorneys know not to include details of their trial strategy in letters to you. between the “whole truth” and the “admissible truth” (4). The issue here is the tension. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. and captured as well in the consent form for forensic examination as Appendix 1. In contrast. be carefully documented. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. and relevant literature. of course. later addressed. with some exceptions. The retaining attorney will guide you in this matter. defendants.
and similar signs. hearsay-ridden trail by which it comes to the team’s attention. experts in court must play by court rules. hearsay. The Socratic Method Although expert testimony has been compared to teaching. 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. obvious self-contradiction. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony.6 THE PSYCHIATRIST AS EXPERT WITNESS. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. despite the convoluted. the forensic practitioner is wise to suspect everyone of having some stake in the matter. always seeking out verification. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. one is guided by its rules. or discorroboration . prejudice. In contrast. Because a patient in treatment is willingly coming for help. may be forced into limitations on this promise because of countervailing considerations of precedent. — George Santayana Unlike the treatment context. absent clear delusions. The witness should be guided by the maxim: when entering the courtroom. and to maintain an appropriately skeptical posture. Once again. which preclude admission of certain kinds of data or evidence in the name of justice. 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. In practical terms the expert witness. corroboration. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. This painstaking. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. but the Socratic method is one of the mainstays of courtroom procedure. fundamental fairness. and the like (4).. though under oath to tell the whole truth.. do not demand to be heard: answer all the questions and then stand down when dismissed. Yet the court may be driven by principles of fairness. detailed. be it moral or monetary. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said.
or even reasonable psychological certainty). Reasonable Medical Certainty Doubt is not a very pleasant condition. but certainty is absurd. and leads physicians of all specialties observing. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. makes forensic psychiatrists unpopular with their clinical colleagues. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. for example. including forensic psychiatrists. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. All psychiatrists. forensic work is a sideline to our clinical focus. 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. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work.Introduction: What Makes an Expert? 7 for all important facts. Although some will cry that there are exceptions. Other contextual clues about the hired gun are overly candid advertising in legal media (e. we are paid by time criteria. Note that there may be some jurisdictional variation on this point.g. reasonable medical probability. For most of us. high-profile insanity cases. As a general rule. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). honest experts should avoid these approaches to . regardless of its clinical or empirical validity. Rather. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. ask about the local variant.. — 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. sell time. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number.
Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. it is an excellent way to benefit from the teaching of colleagues and to share ideas. There are complexities in this area that should be addressed. If a clearly meritless case is offered to you for review. and corroborating data. Thus.” in this volume). all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. although the clinician is obligated to place the welfare of the patient above other considerations. there are significant clinical. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. reasoning. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. SECOND EDITION finding work. (By the way.) 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. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. summarized as follows (for more extensive discussion of this point. because these provide a base of financial stability that enables you to turn down cases. and you maintain your ethical compass direction. Often no absolute standard exists by which to measure opinion testimony. First. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. case materials. you avoid temptation to skew your opinion. For various reasons (5–7). and ethical incompatibilities with serving as your patient’s expert. 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). The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that .8 THE PSYCHIATRIST AS EXPERT WITNESS. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. see reference 5 and the appendix to reference 3). “Developing and Marketing a Forensic Practice. 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. legal.
treaters called into court may violate the confidentiality of the clinical setting. Indeed. From this viewpoint. thus leaving the jury free to vote its “gut. it is often the case that the outcome of the legal matter has been predetermined entirely by the demographics involved in selection of the jury before the trial even starts. the expert goes in skeptical.D. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. . rather than the entire forensic database. not the engine. the therapeutic alliance. though essential for therapy. Second. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. the treater has usually had only the patient’s reports on which to rely. 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. M. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8).” Although this last is true in certain respects. Third. Early in my career. as noted in the section on malingering above. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination.Introduction: What Makes an Expert? 9 the treater gives in court. constitutes a bias for forensic functioning.” This provocative image should be kept solidly in mind. in contrast. Master forensic psychiatrist Robert Simon. the wish to avoid paying expert fees that are usually higher than those of treaters. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation.” Even when the expert is the only source of data that the jury receives. whether because of simple ignorance of the above distinctions.. even though this may occur appropriately under legal rules. The Humility Factor Finally. 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. Attorneys seem to display a curious indifference to these incompatibilities.
Boca Raton. 5. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. 2007 Barsky AE. 1997 Gutheil TG. 2003 Strasburger LH. Expert’s Quarterly (Winter): 2. 4. 2002 Bronstein DA: Law for the Expert Witness. Baltimore. FL. Bull Am Acad Psychiatry Law 20:153–162. Lippincott. 8. August 2. 1992 Appelbaum PS.asp. New York. Lippincott. Testifying and Everything Else You Need to Know. Guilford Press. 2008 . Depositions. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. “the admissible truth”: an ethics dilemma for expert witnesses. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 1997 Gutheil TG. J Am Acad Psychiatry Law 34:14–21. Suggested Readings Ackerman MJ.org/guidance/ethical_ guidance/expert_witness_guidance. Hauser MJ. Williams & Wilkins (Wolters Kluwer).gmc-uk. MD. 1998 Gutheil TG. Personal Injury and Other Civil Actions. J Am Acad Psychiatry Law 25:233–247. et al: The “whole truth” vs. Simon RI: Narcissistic dimensions of expert witness practice. 3. MD. DC. White MS. Wiley. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Lewis Publishers. 7. 2008. Washington.10 THE PSYCHIATRIST AS EXPERT WITNESS. Available at: http://www. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. J Am Acad Psychiatry Law 31:422–427. 6. Am J Psychiatry 154:448–456. Gould JW: Clinicians in Court: A Guide to Subpoenas. Kane AW: Psychological Experts in Divorce. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. American Psychiatric Press. New York. SECOND EDITION References 1. British Medical Journal 337 (#7664). 2006 Catto G: Acting as an expert witness. Baltimore. Gutheil TG. Williams & Wilkins. J Am Acad Psychiatry Law 33:55–58. Accessed August 5. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Harv Rev Psychiatry1:4–5. 4th Edition. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. 2005 2.
DC. 2004 Slovenko R: On the therapist serving as a witness. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. Psychiatric Services 52:1526–1527. Edited by Quen JM. Bull Am Acad Psychiatry Law 2:119–132. Washington. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. 3rd Edition. 1994. 2001 Simon RI. Hillsdale. 2005 Simon RI: Psychiatry and Law for Clinicians. Washington. 1992 Dietz PE: The forensic psychiatrist of the future. in The Psychiatrist in the Courtroom. Analytic Press. DC.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. American Psychiatric Press. 1990 Gutheil TG. Int J Law Psychiatry 13:281–307. pp 233–248 Rogers R. NJ. New York. Bull Am Acad Psychiatry Law 15:217–227. Behavioral Sciences and the Law 7:145–180. Gold LH: Textbook of Forensic Psychiatry. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 2001 Quen JM: The psychiatrist as expert witness. 1989 . Springer Science+Business Media. J Am Acad Psychiatry Law 30:10–13. American Psychiatric Press.
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[Finally] I realized that each witness chair comes equipped with a stabilizer control. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. p. In this chapter. tend to drift unconsciously into a “therapeutic mode. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. their ultimate goals in the legal process. It is a control easily within the reach of every witness—the lever marked “truth. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. rather than help.” (1.. particularly an empathically attuned one. S-3) THE EXPERT faces many challenges in forensic work.. To prevent such inadvertent abuse or exploitation of the examinee. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. the ethical expert be13 ..” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume.” They may forget that this encounter is not therapy. examinees being interviewed by a psychiatrist. and its results may harm.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. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. First.
g. If you take every case you review.) For example. you decide you cannot support the retaining attorney’s position. who—in the ideal situation—accepts this view. the turndown rate is the percentage of cases in which. The warnings (carefully documented. defensible. For symmetry. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. either your threshold for validity is too high or you need to meet a better class of attorneys. you are friends with one of the defendants). Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. indicates the intention of explaining your information to the client. denounces your integrity. if necessary. Rather. Turndown rates between 10% and 30% are not uncommon. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. scoffs at your qualifications. this case might be called a defense case because the actions of the defendants are. and slams down the telephone. the attorney curses your name. after reviewing. You pass this information on to your retaining plaintiff’s attorney. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. 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. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. (Note that even if you cannot support all of the claims proffered in the case.14 THE PSYCHIATRIST AS EXPERT WITNESS. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. 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? . indeed. impugns your ancestors. In a not-so-ideal situation. If you turn down most cases you get. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. Therefore. this case is over and has been turned down. thanks you for your help. understandably. After settling up any monetary adjustments. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. that the firm will not be using you as an expert. 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. and states.. you must consider whether your threshold for case validity may be too low.
Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). “White. that is.” Your correct answer would be. 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. Partisan pressures from the adversary are put aside. you could receive a number of good cases. “White on this side. This model is sometimes called the advocate for truth model. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. and the expert becomes the fully neutral observer and reporter. In forensic practice. and 2) you answer cross-examination truthfully (see the following discussion). most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. all of which you should turn down. you take nothing for granted. One model holds that once the oath is taken. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. guess. only over those you elect to accept. or a number of invalid or meritless cases. that position is always acceptable. “What color is that house over there?” The novice answers. Consequently. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. Although these referrals are not strictly turndowns. they do represent cases in which you have elected not to participate. Consequently. An author described the special sensitivity to what one can swear to in this way: You are asked.The Expert’s Ethical Universe 15 Note also that you may be in a position to refer cases to colleagues who are known to you as having perspectives different from your own on.” Once under oath. for a particular case outcome). inpatient care. 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. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. speculate about. and so on. for example. the only touchstone is absolute truth as you know it or understand it. all of which you might accept. This model has been called the honest advocate model. say. Nevertheless.” .
discussed further in Chapter 3. is misreading the nature of the ethical contract between the two parties. this identification may compromise your needed objectivity. just what does the expert owe the retaining attorney? Strictly speaking. . A pitfall in this area might be called forensic countertransference. “First Principles. As you work closely with your attorney. 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. might extensive socializing with the retaining attorney—or. settle or drop the case. Recall that the attorney’s goals are winning the case. you owe only serious. and what you can and cannot testify to under oath. If the attorney. 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. This difference is significant. under the rubric of loyalty. thus.16 THE PSYCHIATRIST AS EXPERT WITNESS. that is not your problem. but the likelihood of identification bias would surely seem to be greater. you do not owe agreement with the attorney’s position or theory of the case. you may come to like.g. committed quality work. You do owe it to your attorney to level with him or her about yourself (e. First. The attorney is free to find another expert. your opinion and its limitations.. that is. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. is disappointed that your present opinion is unfavorable. similarly. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. yours are providing ethical and valid consultation or testimony or both. this factor would require greater scrutiny of the relationship by the forensic witness. Extending this idea. the skeletons in your closet. The varying forms of bias are discussed below. but two dimensions of the relationship pose potential ethical problems. and admire him or her. out of feelings of being loyal to his or her retaining attorney. identification with your retaining attorney (discussed more extensively in ).” in this volume). or make whatever use of your opinion that may be of service. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. with whom you have done many a previous case together. respect. 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.
promises many future retentions. although not common in practice. 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. Similarly. The situation does reveal some complexity. as a clinician. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. If you are a victim of child molestation. The . you are expected to manage your countertransference toward the examinee or the examinee’s actions.” Note also that. of course. This neutral position is highly desirable for that reason. 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. eliminate other subtler biasing factors. many expert biases are not detected either by the adversary system or even by the experts themselves. The fact that the position is more or less neutral does not. 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 should refer the case. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. In this model the attorney lavishes praise on the expert. for instance. an attorney. 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.The Expert’s Ethical Universe 17 Nonsexual Seduction and Other Forms of Bias One form of bias may be created by the retaining attorney in an attempt to influence the expert. of course. 33) However. 337). this effort may be termed nonsexual seduction. Somewhat idealistically. you may feel unable to examine objectively a child molester. bias can be exceedingly subtle. p. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. such as overidentification with the judge or the “system. There is no shame in this. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. if the countertransference is unmanageable. and may add blandishments such as dinners at expensive restaurants and the like. (p.
both pull and push must be resisted. likely be explored. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. . if appropriately asked by the other side. Finally. yes.” Your retaining attorney exerts the pull of retention. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. Gutheil and Simon (6). defend those opinions passionately and fiercely on cross-examination. Such candor may well enhance their credibility.The Expert’s Ethical Universe 19 TABLE 2–1. the limits of your conclusions. while servants beat him with knotted towels. the opposing attorney exerts the push of attempted impeachment. p. the limits of your data. the limits of your knowledge. Therefore. 261. having become inappropriately enamored of their opinions rather than of the truth. Again. 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. and the limits of your testimony. the limits of your credentials. experts can be separated into two categories. In the process of cross-examination. The less admirable experts. the true extent of their opinions. expert testimony is like that. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. 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. and their testimony is often unconvincing. and identification as above. and the hypothetical situations under which their conclusions would be different. none of this information should be a surprise to your retaining attorney. loyalty.
SECOND EDITION References 1. 1990 Brodsky SL. J Psychiatry Law 28:449–457. McKinzey RK: The ethical confrontation of the unethical forensic colleague. December 2004. pp 33. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. Washington. 8. Simon RI: Avoiding bias in expert testimony. 3. Miller PM: Withholding. 38. WI. J Am Acad Psychiatry Law 29:336–339. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Gutheil TG: Expert witness perceptions of bias in experts. 2002 Candilis PJ. 39 Gutheil TG. 2008 Katz J: The fallacy of the impartial expert. 2007 Gutheil TG. Prof Psychol Prac Res 33:307–309. Weinstock R. Springer Science & Business Media. New York. 1983 Appelbaum PS. 7. 2004 Gutheil TG. J Am Acad Psychiatry Law 36:195–200. Bull Am Acad Psychiatry Law 20:163–177. 2. Baltimore. 1992 . MD. Martinez R: Forensic Ethics and the Expert Witness. 36. Int J Law Psychiatry 13:249–259. 2002 Gutheil TG. 2001 Miller RD: Professional vs personal ethics: methods for system reform. J Am Acad Psychiatry Law 27:546–553. 1992 Lynett E. J Am Acad Psychiatry Law 32:70–75. Williams & Wilkins. Miller PM. Bull Am Acad Psychiatry Law 20:141–152. Baker TO: Operator’s Manual for a Witness Chair. 5. DC. Psychiatric Times. 2004 4. Milwaukee. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Psychiatric Annals 34:260–270. Commons ML. 1999 Commons ML. 2001 Slovenko R: Discrediting the expert witness on account of bias. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements.20 THE PSYCHIATRIST AS EXPERT WITNESS. objectivity and fair compensation. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 4th Edition. Defense Research Institute. American Psychiatric Publishing. 6. seducing and threatening: a pilot study of further attorney pressures on expert witnesses.
Prof Psychol Res Prac 34:219–224. Bull Am Acad Psychiatry Law 19:237–248. 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. Behavioral Sciences and the Law 5:149–160. Leong GG. Greenberg SA: The expert witness.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. Bull Am Acad Psychiatry Law 17:189–202. Hosp Community Psychiatry 44:388–389. 1987 Schultz-Ross RA: Ethics and the expert witness. 1991 . J Am Acad Psychiatry Law 36:167–174. the adversarial system and the voice of reason: reconciling impartiality and advocacy. J Am Acad Psychiatry Law 33:386–389. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 1993 Shuman DW. 1989 Weinstock R. 2005 Rogers R: Ethical dilemmas in forensic evaluations.
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you still work only for your retaining attorney and. indirectly. as when a defendant. and compromised working relationship. In the forensic relationship. That relationship is also a source of certain pitfalls of bias. your employer is less clear. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team.CHAPTER 3 First Principles IN CLINICAL WORK. you may—indeed. that person is the recipient of your opinions. discussed in the previous chapter and later in this chapter. that attorney’s client. but you are not required to preview your findings. regardless of what is going on with other experts or treaters. prescribe. When you examine a plaintiff at a defense attorney’s request. or perform some other such intervention with him or her. share a copy of your report with the examinee. However. you may or may not owe a separate form of allegiance to that attorney’s client. treat. Your duty is to the person for whom you are working. the patient is your employer. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. forensic work should thus always begin with the question. 23 . make recommendations. that is usually clear. Although you are usually working for an attorney. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. considered for examination of competence to stand trial. is being treated in a hospital setting. ineffectual testimony. or some kind of class action). you should—be polite and supportive to your examinee.
The Psychiatrist in Court: A Survival Guide. the topic is extensively discussed in the companion volume. or Ms. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. This point came up in an actual cross-examination in a distant state. the term your attorney will be used to refer to the attorney retaining you as an expert. In this chapter.” implying venality and bias. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. on purpose—he chose to characterize as “mine. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. Smith until he or she invites you to call him or her John or Jane. “Have you discussed this with your attorney?” This threw me. informal discussion should be the format. more likely. refer to those sources. Friendly. and mastery of professional jargon. for whom am I working. Instead. this approach is self-defeating. The Retaining Attorney’s Request After the first forensic question. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. If this issue is in question. It became clear that the cross-examiner meant my retaining attorney. 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- .24 THE PSYCHIATRIST AS EXPERT WITNESS. not your personal counsel. How you communicate with your attorney is important from the outset. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. politeness dictates that you call the attorney Mr. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. Watch for this ploy. which—either by accident or. This telephone call is far from a mere administrative formality. though this distinction may be intentionally obscured as a cross-examination tactic. clinical experience. I was asked.
First Principles 25 chiatrist actually has some knowledge about. personally. For example.. Your Fitness as an Expert Should you. “Look. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. The attorney can then take or leave this arrangement. experience. board certification. I recommend hearing about the broad issues of the case first and only then asking for people’s names. and so on. In general. 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. however baseless? Are you now being investigated by the board of registration for some allegation. that is. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. 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. but subtler versions of personal resonance with a case are not uncommon. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. no matter how unfounded? Do you have a . These issues go beyond mere conflict of interest. Therefore. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident.g. I don’t know a great deal about this specific subject. which is usually (but not always) clear-cut. the hospital. if you cannot or should not take the case. the attorney will not have revealed confidential information (the names) to you. as indicated by publication. if your aged mother has just died in a nursing home. 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. This example is fairly obvious. Note that your special expertise should exist against a backdrop of your general competence in the field. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. 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. such cases should be reality-tested for the attorney. have you been the defendant in a malpractice suit. 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. but I am willing to become familiar with the issue”).
. they are all corrupt). have taken an opposite position or opinion. 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. Belatedly surprising your attorney (e. .. Thus. . are there cases in which you have testified on behalf of the other side. Do your best to address this possibility early. including the speaker. 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. If you write a lot.In too many medical malpractice cases. unfortunately. credentialing problems in the past. contradicts your present position. even if the issues are clinically or forensically totally different. in an economic sense. for instance. SECOND EDITION history of problems in the military. or have been retained by one side more than the other? Review this with the attorney.” when everyone. . As is often the case. This issue is further discussed later in this chapter. in the preceding quote.e. juvenile offenses. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. who are the strangers in the courtroom. Finally.. the more words you might have to eat on cross-examination. the court record chidingly notes. Similarly. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. for the first time while on the witness stand) is a major expert sin. . for example. and similar problems? You must be extremely candid with the lawyers about such facts at the outset.g.26 THE PSYCHIATRIST AS EXPERT WITNESS. . Fees. a criminal record (no matter how minor). Time. 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. Second. attorneys are invisible within the court record. (1) This quote is interesting from several viewpoints. not for their time and clinical expertise. 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. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. the ultimate beneficiaries. you realize that the more you write. knows that it was Smith’s lawyer who was derelict. “Smith failed to plead .
Second. and organizing your forensic assessment is part of the work.” or “I am paid by the hour. Doctor?” The only appropriate answer.” Other witnesses may take this further: “My testimony is not for sale. and try to maintain that rate. Indeed.First Principles 27 not the forensic context. The attorney either takes me up on this offer. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. attorneys have timers on all their phones and charge by the split second. Note also that time spent thinking.” or “Nothing” (and wait for the attorney to crack. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. or challenge the details. this usually means that the client has hesitation or resistance about my rates. since the doctor-patient relationship is not pertinent to the examiner-examinee one. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. but you are made of finer stuff. allowing me to refer to a junior colleague. and hires me anyway. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. choose a fee that you would not be embarrassed to state. I tactfully suggest that. analyzing. ideally delivered in a calm tone of voice and not through clenched teeth. Doctor.” Yes. “So. I know. without children bursting in to share their Nintendo triumphs with you). Like the judge previously quoted. meaning no offense. nit pick. Use timers or check your watch at the start and end of a piece of work and write down the time. 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. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. this is a pro bono case for you?”). planning. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). 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. Therapists who are quite capable of taking an extensive. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. whether for psychotherapy or expert witness time. only for my time. same as you. Don’t charge for a 90-second telephone call confirming the date of . grits his or her teeth. First. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. is “I am not being paid for my testimony. or grasps the point. I also recommend not “nickel and diming.
Perry Mason. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. Refuse any other arrangement. Ethically speaking. To novice experts. and give the dates to the attorney. but in my experience. Then. when you design your own fee agreement. among others. of course. or other conflict. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). The attorneys. the organization in charge of attorneys’ ethical issues. SECOND EDITION a deposition. at the end of this book. your fee should never be contingent. for instance.28 THE PSYCHIATRIST AS EXPERT WITNESS. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. even if there is). or for reading a one-paragraph letter.A. shame. I took my first major “stiffer” to court eventually and received some of my money. respectively. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. but your consultation must be free of investment in any form in the outcome of the case. Owen Marshall. don’t take on the case. That august body opined that this was not an ethical problem but a business issue or a contract issue. you can calmly state them without guilt. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. the good folks on L. You sell only time. It should.. 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. when asked about your fees on the stand. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. How much work or time should you devote to the case? This depends on your schedule. it is unfair to your attorney. ideally. basically consultative services. 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.e. Urge your attorney to bring up your fees on direct examination to get it out of the way. you are charging for time regardless of the outcome of the case. some of which never . You give only testimony. I reported him to the Massachusetts Board of Bar Overseers. they referred me to small claims court. Keep your vacations in mind. are free to employ contingent fees. If you don’t have enough time. defaulted on payment) by their first attorney. 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. failure to pay is reality. in addition.
defendant. that is. nontreatment role is clearer. Will you be expected to testify at trial. In other cases. You may be needed to evaluate a plaintiff (or a defendant.First Principles 29 lead to the courtroom. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. Among other things. what your time permits. You simply may be a consultant to the attorney on the merits of the case at the outset. an individual client. You may provide rebuttal material for use by others. your first task might be an evaluation of plaintiff. As a rule. is more accountable. that role would be ethically incompatible with the objective testifying role. what your skills or knowledge support. working for the attorney or insurer is a far better idea than working for the client alone. . Do one or the other. at some point. 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. 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. often in orange-crate–sized lots. for that matter). or will your opinion be used by the attorney to strategize without a report. You might advise the attorney on how to cross-examine the other side’s experts or litigants. or is the matter likely not to go to trial? Are you going to be a reporter. how you feel about the attorney. rarely. The Final Decision Putting together everything that you now know—what you charge. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. Moreover. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. someone who has to generate a written report. The usual next step begins with your receipt of written materials on the case. testator. your attorney. how free from bias or conflict the situation is—finally ask. or even witness. 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. as a professional. If you are. going to testify. Which comes first boils down to a matter of individual preference. your consultative.
attorneys would call you only for ironclad solid cases in which they have every confidence. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. a tendency to assume you will give the “desired” opinion no matter what the material shows. a behavior that certainly did not seem all that threatening. the next task is clear. including by obtaining expert consultation. even in a consultative sense? In the initial telephone call. However. of course. 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. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. In any case. or a tendency to want to withhold information. compared with some other behavior.30 THE PSYCHIATRIST AS EXPERT WITNESS. Regrettably. Scheduling considerations may determine the first task. the emotional pressure of the attorney’s desperation should not alter your objectivity. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. On perusing . In reality. the minority are the ones who pose the problems. stating that the patient’s dangerousness flowed from his being charged with slashing tires. followed by review of the documentation. The attorney presented the case to me by telephone. in relation to which. There is nothing inherently wrong with this desperation. The point is perhaps an obvious one. 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). Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. you must ask the question. 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. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. does the attorney have merit? As a rule. I recommend listening for indexes of venality. for that matter. though you would not necessarily know this. For example. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. his dangerousness was the crucial issue.
and the result may be your withdrawal from the case. but I emphasized that he and I needed to be clear about the fact that I would testify . such pressure should be resisted. then you have to expect the same in the future. Somewhat annoyed.First Principles 31 the old record. I decided those were near-enough equivalents. 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. 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.” He wondered if that could be equally well expressed by “areas of competence. the benign category. wants to be certain you took note of a particular record entry or deposition statement. and the arguments fall into two categories. however. If he or she withholds or distorts information or lies to you initially. In the second.) The second red-flag situation occurs when. 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. arguments are the attorney’s attempt to browbeat you into changing your mind. the only safe course is not to work with that attorney. the malignant category.” After mulling this over. 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). after you have given your verbal report. I told the attorney that she possessed “islands of competence. you give your conclusions. therefore. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. will argue with you at this point. You cannot afford to embark on a course of work with someone such as this particular attorney. Most ethical attorneys. based on the patient’s history of significant violence. (Note also in this example the value of the previous record. Obviously. faced with this disappointing fact. the attorney wants to be sure you understand the import of certain data. A delicate balance must be struck between reasonable flexibility about. I telephoned the attorney and demanded to know why he had withheld this history. Another less knowledgeable group of attorneys will be educated by your discussion. a document often difficult to unearth but essential to the full evaluation. however. For example. the wording in which your opinion is couched and the substantive alteration of your opinion. In the first. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. based on your review of the database. in a competence assessment of an elderly woman. Some attorneys. which happen to be unfavorable to the retaining attorney’s case. Expert witness work is hard enough without bad faith. for instance.
multimillion-dollar will contest. inclusion of somewhat negative evidence would show objectivity. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. In yet another case. after discussion I accepted that. The attorney asked for major cuts or deletions. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. regardless of what may be precluded by rules of evidence and discovery. and withdrew from the case. tactfully. in fact. to “go over” my report. This is the final opinion I am giving here and now. The attorney said he was offended that I should even think he was suggesting omitting something. It is important to ask for everything from the attorney. hung up. finally. I had prepared a 22-page single-spaced report. wanted. Volume II. and so on. shape or form whatsoever. “withholding” important data from the jury. The attorney made a big show of my “concealing” this information. and I accepted. in an extended phone call. only the final opinion really matters. that since I had read it and thought it relevant. The negotiating discussion moved into argument. . I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. his senior partner wanted to deemphasize the subject by changing some wording. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. Your request should be global. This was trivial. however. I told him. the remainder of the opinion. In a variant on this issue. the retaining attorney. I said I would change nothing. an opposing attorney asked me on the stand when I had received various parts of the database. this rationale is especially ill-founded. and so on.32 THE PSYCHIATRIST AS EXPERT WITNESS. One attorney nearly drove me mad by releasing dribs and drabs of material. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. I did not recall because I do not keep that kind of record. Although delighted with this level of detail. and testify to if asked. moreover. Since only the final (or courtroom) opinion is determinative. even if some material is irrelevant and other parts are inadmissible. in any way. under the specious rationale that this method would permit seeing the evolution of my opinion. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. In another case. rather than Volume I. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. and did not stop until I said. Agreement was struck. This suggestion was acceptable. in a high-profile.” The attorney moved on to other matters. He asked me to use the dates of the depositions I had reviewed. I could not ethically omit it.
long pages of deposition testimony drone on about the exhibit. I think this guy is probably not insane. 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. after your report. This problem is a variant of a countertransference issue. . I find it helpful first to read the complaint so that you know what the basic issues are. 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. even data of dubious validity. I have found that attorneys for some reason often fail to send the exhibits to depositions. This ethical dilemma arises when the attorney says. and connections that can be checked against the primary record data and flag those in some way. each element of which may be confirmed or disconfirmed by other material in the database. feel free to use it if it suits your own preferences. “Look. Second. My own approach is as follows. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. it is up to you. However. but I’d like you to do this evaluation on him anyway.” 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. if you will. you should consider some important points. check the documents you receive against the cover letter to be sure you have everything you should. directed not toward the patient or examinee but toward the attorney. Either undertaking or turning down such a case is a defensible position. Forensic countertransference is further discussed in reference 2. As you read the complaint. He was photographed doing the crime. First. a situation sometimes occurs that requires special mention.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. because I’ve got nothing. you are creating a checklist. but you can only imagine it because the actual document has not been provided. facts. 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. for example. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. look critically for claims. Recall that a plaintiff can claim anything at first. Referral to another or an additional expert also may be indicated. As you go through the documents.
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. Some discretion. advance screening. cold. . matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. insanity in a criminal context). perhaps by a paralegal. Note for completeness that some experts like to start by examining the litigant first. and selection of a safe environment may be required for examining potentially dangerous examinees. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. 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). if you have not already done so. I read the medical records and clinical material or the equivalent. you may also request that the attorney’s office create the timeline. Given the complexity of many psychiatric malpractice cases. no matter how difficult the scheduling might be. makes it harder to focus on hot spots of the case or areas of contradiction in the database. including your own. SECOND EDITION Second. exert every effort through your attorney to obtain enough time to do an adequate examination. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. At this point. This permits. however. your interview queries would thus arise directly out of the material. the testator. the witness.34 THE PSYCHIATRIST AS EXPERT WITNESS. accept it as a limitation.g. Such an examinee-first approach. The attorneys on either side of the case may limit the interview time available. the depositions or witness reports. and be prepared to acknowledge this constraint as a limitation on the data. If the appropriate amount of time for your examination cannot be obtained. I strongly recommend reading large chunks of material at a single sitting.. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. for example. A laptop computer for this task may be quite helpful. third. then to check the record to determine whether the complaint or issue has any validity. or with only the complaint reviewed. the defendant. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. you are familiar with basic interview approaches). The Interview After reading the materials. you also may want to review relevant literature on the subject. you will want to interview the plaintiff. or whoever is involved in the case (presumably.
If you are unable to prevent the above intrusions. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. it is certainly beneficial for teaching and for self-review for quality assurance. For example. to have the interview audiotaped or videotaped. however. the absence of this datum must be factored into the opinion. 3. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. exaggerating symptoms. Note that when you are retained by the defense and wish to examine the plaintiff. the expert will receive a request to have an attorney or paralegal present during the interview or. inhibit free-ranging inquiry. This decision is legitimate but bears consequences. 2. The fundamental reasons are as follows: 1. that side’s attorney may refuse to allow you to do so. and suggestions from the attorney present may contaminate the process. an audiotape or videotape of an interview may be constructive. However. alternatively. when examining for the opposite side of a case. Verbatim material also can be obtained in this way. focusing on making a recording. Examinees commonly play up to the audience or recording device. more authentic) responses to your inquiries. as a rule. then to examine him or her again to clear up matters raised by the written material. Inappropriate interruptions and objections. Jurisdictional rules may make one or all of these procedures mandatory. although this irritates some examinees more than writing during the interview. cuing. presumably. it might be effective and appropriate to examine him or her first. for some experts. based on the belief that such an examination can only hurt the case. 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. in one case.First Principles 35 If the witness lives locally. Examinees who must travel to see you should. “You wouldn’t let me!.” was appropriately disconcerting. Not uncommonly. but I strongly recommend opposing their occurrence through your attorney.” My immediate response. unobtrusive note taking probably represents the optimum compromise among choices. 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. then to read the database. be spared this burden. For a number of circumstances.
a mass tort in Louisiana. but the following vignettes make the point clearly: For example. 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. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. Mobil.. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.. 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.Attorney Larry Cohen (personal communication. is whether the case is fundamentally plausible. a psychiatrist interviewed plaintiffs with an attorney present. The following are four of the principles that I apply as a generic framework for this purpose. Do the deviations from standard of care sound hokey. If the attorney attempts in any way to cue or coach the examinee. Plausibility The first question to ask of the case.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. behind the examinee). distortion..g. and so on? . March. . warn once. 322) To offer a structure for this stage of the inquiry... and I want to sue him. p.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. This subject is addressed extensively elsewhere (3). 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. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting.36 THE PSYCHIATRIST AS EXPERT WITNESS. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. be it civil or criminal. as when the complaint boils down to. in the unpublished 1996 case of Lailhengue v. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. “I wasn’t myself when I plotted that elaborate armed robbery”? Internal Consistency Does the subject on the side retaining you present a coherent story.. (4.
observations. in a sexual misconduct claim later proven groundless. she assumed the doctor was not present and could not refute her claim. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. he had made several outgoing calls during the time period of the alleged molestation. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. Alternative Scenario In the film The Great Train Robbery (Crichton M. or for some criminal claims of insanity. 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. even if asked to do so or tempted by medical ne- .First Principles 37 “Alibi” Issues or External Consistency Is there material from somewhere else that challenges or refutes the claim? Does the defendant claim to have been totally psychotic and out of control. 1978). The phone records aided in challenging the claim by providing a time stamp. The notion of the alternative scenario can be essential for assessing civil claims. MGM/UA. 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. 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. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. however. as well as disability evaluations and similar tasks. 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. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. the following dialogue occurs between the trial judge and Edward Pierce. the outcome. If the situation did not occur in the manner claimed. remember not to offer any treatment or treatment recommendations to your examinee. She had apparently established these referents by calling the office and receiving no answer. or the alleged damages? For example. about the historic English crime. Finally. such as sexual misconduct.
what you say may come out in a report. answer them as best you can. in a deposition. or have no visible effect on your case—only time will tell. As you are interviewing the examinee. and if you do not. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. you do not have to answer any of my questions. in both civil and criminal cases. Only when I subsequently read her deposition did her entire . SECOND EDITION cessity as treatment issues emerge in the interview. please sit down” but before anything substantive has been said: Before we start. or in an open courtroom. that is. as noted early in this text. Note the fully intentional structural resemblance of the above paragraph to informed consent. possibly with reporters present.38 THE PSYCHIATRIST AS EXPERT WITNESS. restroom) at any time. recall that anyone can really be fooled. and treatment offers are inappropriate. such as informing the examinee which side has retained you. Other warnings. Second. Do you have any questions about what I have told you so far? If the person has questions. 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. but since I can only be useful if I am objective. although I hope you will do so. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. the other side of the case. you can ask for a break (water. I am entitled to make note of that. And finally. Is the patient convincing and plausible? Do the words match the music. Fitting Together the Interview Commonly. my testimony may help your case. The relationship is not a medical one. defendant. unlike what you may be familiar with from other doctors or therapists. You will be challenged to weave interview data into the totality of the case. and you must keep several issues in mind. the court). you are attending to his or her demeanor and its relation to credibility. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. she had plausible answers for all my questions. hurt your case. what we talk about here is not confidential because I am not your treater. you will interview the subject (plaintiff. compare the consent form in Appendix 1. seem to be called for out of fundamental fairness to your examinee. First. I have been retained by (your side. if not. and others) as part of your exhaustive review of the database. Third. Her emotions were strong and appropriate to the content. move on to the substance of your interview. there are some things I need to inform you about.
the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt.e. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. because of their psychopathology. but did that deviation cause the damages. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. Such distinctions are extremely significant in the hard monetary realities of the legal case. especially when they themselves. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. but then Dr. 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 .First Principles 39 case fall apart. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. Besides serving as a valuable lesson in humility. because the defendant is not causally responsible for what happened earlier. Jones did Y and the plaintiff did Z. but those efforts may fail or be misdirected and may even make things worse. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. Similarly problematic is the matter of intervening causes: “Dr.. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. The plaintiff ’s failure to take those remedial steps does count against him or her. believe deeply in their position. on the other hand. it only means that you’re being conned into thinking that you’re not being conned. the case was highly instructive: interviewees can be extremely convincing. Smith did X at this point. the preexisting condition must be deducted from the damages. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. a defendant may be mentally ill. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. For example.” In the civil system. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. particular plaintiff vulnerability for which the defendant must be held responsible. The Causation or Connection Dilemma In many forensic cases.
although it has not yet gained broad enough acceptance to be generally admissible as evidence. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. What portion (usually. mistrial claims. 2003 3. Kirby v Ahmad. they may serve you to recall the case at a later point for research or publication purposes. event. work by Pittman and Orr (5) on differentiating serial trauma shows promise. In addition. two major approaches apply: 1) shred or have a reputable company shred the paperwork. Another good rule is to discard. SECOND EDITION were of a particular deviation. all case materials except your reports. and what the exacerbations were of preexisting conditions. appeals. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. Washington. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. or incident. Keeping Records How long should you keep forensic records? A basic rule is that you should never discard case materials until you have asked the retaining attorney if you can do so. because they would be hard to replace. or 2) return the materials to the retaining agency. J Am Acad Psychiatry Law 31:6–9. what amount and what percentage) of the damages can be assigned to the later trauma which is the occasion for the suit? To take this issue out of the guessing-game arena. American Psychiatric Publishing. 63 Ohio Misc 2d 533 at 534. 1994 Gutheil TG. what the results were of subsequent events. then is sexually abused by a treater. Or. and so forth that require revisiting the materials. If you are discarding case materials. . and your interview notes. 2002 Gutheil TG: Reflections on coaching by attorneys. if any. 2. Even if a case seems “over. References 1. and then has other symptoms or more of the same symptoms. with permission.” there may be subsequent posttrial motions.40 THE PSYCHIATRIST AS EXPERT WITNESS. DC. Further research may reveal other promising approaches (6). keep the latter indefinitely.
Chapman. 2008. Otto R. et al: Response bias in plaintiffs’ histories. in Clinical Assessment of Malingering and Deception. 1993 Deaton JSD: Toward a critical forensic psychiatry. Medical Chances: How Patients. 41 6. Bull Am Acad Psychiatry Law 21:37–52. Families and Physicians Can Cope With Uncertainty. New York. Feinbloom RI. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. Lippincott. Baltimore. 1993 Bursztajn HJ. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Brunner/Mazel. J Psychiatry Law 21:33–76. Zasler ND. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Williams & Wilkins. Guilford Press. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. New York. 1991 Lees-Haley PR. 3rd Edition. Routledge. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. Assessment 4:321–324. Brain Injury 11:791–799. J Psychiatry Law 24:3–25. Gutheil TG: Clinical Handbook of Psychiatry and the Law. et al: Medical Choices. 2005 . & Hall. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. 5. 3rd Edition. Williams CW. Hamm RM.First Principles 4. New York. 1997 Pittman RK. 2007 Borum R. 4th Edition. MD. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). 2003 Group for the Advancement of Psychiatry. 1990 Suggested Readings Appelbaum PS. Edited by Rogers R. J Am Acad Psychiatry Law 33:158–175. J Am Acad Psychiatry Law 31:232–238. Guilford Press. New York. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation.
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CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. for example (the most common claim against mental health professionals). this bias means that the outcome of an event appears as though it had been far more foreseeable. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. More practically. once you know it has already happened. 2) breach of duty. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. in this chapter. than was actually so before the event in question occurred. Generally. In a suicide malpractice case. and 4) proximate cause. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. Psychiatric Malpractice Cases One of the most critical issues in psychiatric malpractice is the failure to prove all four elements of malpractice (dereliction of a duty directly causing damages): 1) duty of care. The discussions within this chapter should be considered an introductory survey. 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. you already know the person is dead. 3) injury to the patient. Sometimes forgotten is the fore43 .
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,
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. There is something of a translation burden on you to read between the lines to determine the issues. When reading the deposition. The point may seem obvious. “This is so clear and memorable that I will naturally recall it later. the next time you read this document for deposition or trial may be 7 years away. Next. the expert may draw conclusions from the record alone. a marginal scribble. any forensic document) without making some sort of notation of what is significant.” However. for example. of your thoughts and reactions. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. I find it valuable to look at the social service history. make some sort of notation each time you read through the record. or a folded corner of the page. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. you may have to pose your own questions to the parties. 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. of course). To save yourself reading everything from scratch each time. nor are the queries necessarily posed the way you would do so. or it can be a highlighted entry. On some occasions. defendants. 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. but depositions consist of attorneys’ questions to various parties. Because keeping a medical record is itself part of the standard of care.Types of Typical Cases 47 the tests ordered. or whatever. these may not necessarily be the questions you would want to ask. In the process of reading. . you read the depositions of witnesses. of what this record entry contradicts or supports in the deposition. plaintiffs. after the records. opposing experts. as different things may strike you on subsequent review. through your retaining lawyer’s permission and intercession. a post-it. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. as a separate document. if present. you are seeking consistency and credibility. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. This notation can be on a separate sheet of paper of similar notes. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. and others. an underline. of any queries or signs of missing data that the record generates to be checked later or elsewhere. you may be tempted to say to yourself.
exert the effort to stand back from the process. you are lulled by this informal. Of second-rank importance. statements of the arresting officers. 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. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. These would include witness and victim reports. while reading a deposition. the more helpful it would be in forming your opinion. Out of the entire panoply of available material on a criminal responsibility case. The truly challenging case lies between these extremes. but still relevant. namely. and records of any treating clinicians from points close in time to the alleged acts. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. you can be drawn into the prose by the unfolding drama therein recorded. These unethical conversations usually have an informal tone: “So. is historical material. Because of the flow of material and its often fascinating content. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. your attorney’s confidential trial strategy. friendly approach into letting your guard down and discoursing freely on your opinions. litigant. it is inappropriate to call or write directly to the opposing attorney. On occasion. eh?” Presumably. and so on. data gathered at the time of the alleged act. For example. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. Criminal Responsibility Cases In cases of criminal responsibility. in my (and almost everyone’s) view. or expert. what do you think about this amazing case. Is this defendant someone who seemed to show . “I think you should talk to the retaining attorney. To read critically. a case wherein the defendant had or has a major. In those jurisdictions where the issue exists. weighing the logic of the deponent’s responses. remember to consider diminished capacity as an intermediate condition. Doctor. 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. are the most significant. The appropriate response is.48 THE PSYCHIATRIST AS EXPERT WITNESS. credible mental illness (and therefore a likely defense) versus a case with none of these qualities.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. you may confront the classical poles of the issue.
the cause of the crime. the interview in a criminal responsibility case has the least power of all the data collected. malingering is especially common and problematic in this assessment. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. 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. an unrelated accompaniment to the crime. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. the result of the crime. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. I find the interview for an emotional injury case to be of primary value. 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. All the interview data must be fitted to the totality of the database.8). and so on. The novice expert should become familiar with useful publications on the subject (7. Because of the seriousness of criminal penalties. although mandatory and irreplaceable. some on . who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury.Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. as with all forensic evaluations (6). a plaintiff drank from a chemically contaminated bottle and burned his mouth. a surprising number of individuals avoid treatment. Finally. an injury from which he recovered rapidly without lasting effect. In one case. The interview also gives you a chance to assess what might be called a sense of proportion. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. The plaintiff who claims that his or her major posttraumatic stress disorder (PTSD) and all of his or her subsequent emotional problems were caused by a tiny plastic bottle of vodka striking him or her when falling out of an airplane’s overhead compartment might raise some issues of proportion. for example.
Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. may be relevant. but they may also be relevant to assessing damages or preexisting conditions. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. The shopper then may sue the store for harassment and consequent emotional harms. preexisting vulnerability. only to find that the goods are legitimately accompanied by a receipt. 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. History. Next to the small table where we were sitting. in regard to which the defendants must “take the plaintiffs as they find them”). 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.50 THE PSYCHIATRIST AS EXPERT WITNESS. The response “My attorney told me not to” conveys its own obvious message. with intrusive flashback memories. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. I . For example. avoidance. This history may represent the plaintiff ’s “thin skull” (i. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. as a result of the mugging. you again often encounter the previously described problem of factoring out the effects of serial trauma. “What would have to happen for you to go get treatment to mitigate your damage in this area?” A response such as “I would have to find a doctor I liked” is quite reasonable. The interview took place in his basement recreation room.. In this situation. however. 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. too. Finally. and startle responses. 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. Such a search can be embarrassing and humiliating to anyone. I had to interview him in his home because he claimed to be phobically homebound. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. Not only might these provide a context for the injuries claimed. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. He claimed to have full-fledged PTSD. especially idiosyncratic history. A question you should ask your interviewee is. SECOND EDITION their own accord and some when given this advice by their attorneys.e.
who. which the average member of the public really doesn’t understand. He slept like a log. yet the observation is valid.Types of Typical Cases knew this because. I myself jumped in my chair. On the surface of his story. then you get the case. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. dying. He was strapped into his seat. An apartment dweller sued her landlord for failing to respond to the infestation. There is a fundamental asymmetry about media coverage in almost every case. that is. it turned out. High-Profile Cases At one point or another. not totally probative. and did not dream. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. This case also illustrates the maxim. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. however. One of my cases raised this issue. the former passenger was revealed as a serious. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. the case certainly seemed meritorious in theory. you may be asked to review a case that has been extensively covered in the media before you have been retained. It is. perhaps so. or crime has generated publicity first. usually not. unimaginative. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. he would have said calmly. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. In a famous incident. As the “moving . to get the actual data. stoic fisherman. he saw a jagged metal edge and below that edge. Initially. 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. the jury ultimately decides. fellow passengers. without warning. the alleged malpractice.357 Magnum close to his ear. On detailed examination. He gave the impression on interview that if you fired off a . of course. the nose of the plane fell into the harbor. ate like a lumberjack. it seemed to me that this incident would induce PTSD in a stone statue. and. had been in the front row of seats just behind the break in the plane. Boston Harbor with freezing. looking straight down past his toes. had no signs of trauma whatsoever. but at incredibly high levels. the plaintiff or prosecutor can say anything. don’t assume—examine. This passenger. 51 This observation was potentially valuable and worth recording. on careful inquiry. injury. therefore. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages.
and spill hot coffee over their thighs and sue McDonald’s. SECOND EDITION parties. Ninety-nine percent of the time. to influence the public powerfully in advance. of course. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. None of this trumpeting means anything. consciously or unconsciously. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. the plaintiff and prosecutor inevitably bias the public’s perception. but this principle may be readily overlooked in a media frenzy. “Developing and Marketing a Forensic Practice. the defense attorneys cannot answer the media’s questions. Some attorneys may try. pushing the case for all it is worth. rip off the covers in moving cars. but so do a number—perhaps a greater number—of venal witnesses. for example. In short. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. until it is proven in a court of law. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. however. selling testimony instead of time.) Another stigma of the hired gun is the counsel of perfection. you simply may be reading your newspaper before you are asked to consult on a case. A plaintiff can say to the media. for example. Recognizing this blot on our collective escutcheon will prepare you to deal with or counter the actions of the hired gun in court or elsewhere (10).” In another case. Therefore. 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 this volume provides more reliable methods of publicizing your practice. In malpractice cases. because they don’t want to give away trial strategy. the standard references the average reasonable . Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. in hopes that some of that public will later become jurors. lest your review should begin with a one-sided perspective. (Chapter 9. you have to be alert to this potential biasing factor and be aware of the media asymmetries.” the attorneys have to create the case from scratch. 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.52 THE PSYCHIATRIST AS EXPERT WITNESS. The defense attorneys must say “no comment” each time. Even though you may try to tune out the media. “McDonald’s has an obvious duty to weld on the covers of coffee cups with Krazy Glue so that people can’t hold the cups in their laps. there is no case until it is brought.
but malpractice litigation hinges on what is required by the standard of care. “If the care had been adequate. The real issue is: does the standard of care require more. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). For example.” This testimony is a classic hired gun claim. An even more malignant twist is the made-up or artificial standard. but no one lives real life like that. 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. Waffles are evasive. Another variation on this theme is. it’s a very serious situation. The hired gun often advances a perfectionistic standard as though it were the average. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. I personally have never heard of or read that standard anywhere. in the real world.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Anyone always could have done more. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage.. Indeed. 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. . Some experts believe that physicians are never wrong and always justify whatever the physicians do. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. “They (the defendants) should have done more.. 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.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. the likely explanation is that the treaterexpert made it up to suit his views of this case.” Many “good ideas” theoretically might have contributed to the patient’s care. the counter to such claims often begins with the phrase “Well.
Also note that the failure to consider a valid option indeed may constitute negligence. he should have been [that is. rather than ideally. he gets frightened. goes all the way to [another city]. actually. the mental state and what’s gone on in that patient’s mind is very uncertain. Note how that witness actually avoids responding. That was the answer in toto. but that is the answer to a different question. there is a lot of despair and a great deal of thought disorganization in the patient. of unpredictability. More to the point. and that is frequently the hallmark of the hired gun. an hour before that or less signs a 3-day statement and then just disappears. reasonably would have been. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. then committed suicide. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. a reasonable history. it seems nearly impossible to extract the actual opinion from the thicket of prose. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. It certainly should have been considered. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. specifically. an emergency petition ideally would have been. Note that this entire chunk of testimony is one run-on sentence. that this is a patient with some history of a. In the following example. a patient had escaped from the hospital. The entire answer took four full deposition pages. Is that a yes or a no? In fact it is neither—it is a waffle. we don’t know whether he stops or doesn’t stop and get [drug] or not. I am not in a position to tell you that that would be the only choice. but. Getting the feel for how the waffle works takes a certain amount of reading of case material. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. 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. took some blood pressure pills one time in [city].54 THE PSYCHIATRIST AS EXPERT WITNESS. 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. . 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]. and where I believe the standard of care was breached was that the patient. he has taken in despair 10 lithiums some years back.
Int J Law Psychiatry 6:331–350. Bursztajn H. . 1981 Gutheil TG. American Psychiatric Press. Williams & Wilkins. 4. References 1. Int J Law Psychiatry 6:317–329. 2008 5. Shuman DW. foresight: the effect of outcome knowledge on judgment under uncertainty. Science 211:453–458. 6. In fairness. Bursztajn H. MD. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. Baltimore. I: malpractice prevention and the use of subjective data. for better or for worse. DC. 2002. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. we may be dealing with an incompetence issue. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. et al: Decision-Making in Psychiatry and Law. I would prefer never to assume malice when incompetence would serve as an alternative scenario. Edited by Simon RI. 1975 Tversky A. New York. Finally. 1983 Bursztajn H. but that doesn’t mean that it’s without supervision. 2. Guilford Press. note that one cannot. 1991 Fischhoff B: Hindsight. Yet. which makes sure the patient is safe within a structured environment. we must consider another possibility regarding the above examples. Brodsky A. 7. Kahneman D: The framing of decisions and the psychology of choice. a trend of such waffling answers in deposition does set off my hired gun detector. II: clinical uses of legal standards in the interpretation of subjective data. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. Gutheil TG. 3rd Edition. and that includes they would be safe within or without the community. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. J Exp Psychol 1:288–299. 3. Gutheil TG. Conceivably. with impunity. Washington.Types of Typical Cases 55 The following is part of a response to a request to list deviations from the standard of care in a Tarasoff-type case: It’s a consequential piece of behavior that creates the most essential elements of a treatment plan.
Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. THE PSYCHIATRIST AS EXPERT WITNESS. Psychiatry 1:26–28. DC. 1993 . psychiatry and the law. 1992 Gutheil TG: A confusion of tongues: competence. Meloy JR. 2nd Edition. Psychiatr Clin North Am 17:439–446. 1987 11. American Psychiatric Press. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. DC. American Psychiatric Press. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. Gutheil TG: The problem of evasive testimony: the expert “waffle. Viglion DJ. et al: Detection of malingering in competency to stand trial evaluations. Psychiatric Services 50:767–773. insanity. Washington. Bull Am Acad Psychiatry Law 20:409–418. 2000 10. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. Legal Studies Forum 9:41–53. 1999 Gutheil TG: Fundamentals of medical record documentation. Bull Am Acad Psychiatry Law 21:23–36. 2004 Knoll J. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. J Am Acad Psychiatry Law 34:215–223. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. Law and Human Behavior 19:493– 505. J Psychiatry Law 28:5–18. 2005 Simon RI. SECOND EDITION Gothard S.” J Am Acad Psychiatry Law 35:112–117. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Washington. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. 1995 9.56 8.
Under some circumstances. Note that some jurisdictions practice “trial by ambush” without expert discovery.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. In both cases. 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. Attorneys probe and define the limits of their cases. if any. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. From the viewpoint of the expert. preparing for what to expect from the various witnesses and documents. there is the period known as discovery. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. the attorney will likely write the actual prose of the 57 . whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand.
attorneys sometimes ask you for your tax returns of the last 5 years. the expert. guided by your input as to what you expect to testify to at trial. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. your attorney will advise you as to what requests for information or documents will be objected to or refused. This approach saves you from having to retract misstatements on cross-examination. reasoning that they can always modify their opinions at trial when the right questions are asked. Depositions The second major area of discovery is the deposition. For example. even worse. either from clinical evidence or experience or from facts in the database. On occasion. review Chapter 5 in the companion volume to this book. Do not attempt to decide what is or is not objectionable yourself. the interrogatory is sworn testimony. SECOND EDITION answers for you. If you have never given a deposition or you feel a bit shaky about the procedure. that is an attorney’s function. or some combination of the three: getting your opinion. and painting you into a corner. 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. based on his or her interpretation of the rules of evidence. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. . It is critical that everything in your interrogatory be something that you have already decided you are able to support. However. If you discover this to have occurred. without retaining you at all.58 THE PSYCHIATRIST AS EXPERT WITNESS. 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. read every such document before it is turned in. obtaining admissions. Opposing attorneys usually follow one of three agendas. it is always unethical. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). The Psychiatrist in Court: A Survival Guide. you do not want to be associated with this attorney. I advise you to withdraw from (or refuse to take) the case. hyperbole hurts you. In addition.
and deadlines may dictate this suboptimal condition. a witness’s deposition or medical record that you had not seen before your own deposition. 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. On the other hand. taken before the entire database has been acquired or reviewed by the experts. This ploy usually can be defused by your attorney. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. however. to empty your wordhoard. for instance. Just answer the question. Of course. the plaintiff. select rebuttal witnesses. admissions and concessions of points or . who is in turn obligated to inform the attorney on the other side of your new opinion. depositions are occasionally. time considerations. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. but this is a subintention within the larger discovery framework. When you subsequently receive. This information may or may not trigger a supplemental step for you in the form of an interrogatory.Discovery and Depositions 59 Getting Your Opinion First. the defendant. as a way of ensuring that your opinions may be brought out at trial. 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. and so on. if any. but not ideally. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. you are ethically obligated to so inform your attorney. or a full-fledged repeat deposition. over and above what has been conveyed in reports or interrogatories. In this latter context. during the course of the deposition. Attorneys also stress that the deposition is their one chance to find out what you have to say. the attorney is not averse to discovering precisely those points that will help his or her side of the case. scheduling problems. This discovery function is a completely legitimate task and one with which you should cooperate fully. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. inform his or her experts about facts or issues to pay attention to. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. as the Anglo-Saxons phrased it. the attorney. the police. 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). a telephone conference. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you.
.. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. negligence. of course. that is. conceptually. however. much was made of this testimony. You are locked in to that testimony. also under oath. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. Your Goals for the Deposition One scholar has described the witness’s goals as truth. At trial. competence. SECOND EDITION views detrimental to the other (i. Truth. This procedure elicits sworn testimony. what are we to believe. His mental status was not particularly demonstrative of symptoms of mental illness. insanity.60 THE PSYCHIATRIST AS EXPERT WITNESS. raised many possibilities. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. The answer was no. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. is the final standard. In a wrongful commitment case against the hospital. For example. so that your opinion is constrained or limited in a way that decreases its impact.e. Indeed. even though it was the preadmission history. any contradiction is obviously damaging to your credibility: “You swore this now and that then. When you later give testimony in court. 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. The points may relate to guilt. based on paranoid-sounding content. On arrival at the hospital. he denied to the admitting physician that he had any violent intent. of course. under oath. or damages—the entire gamut of forensic possibilities. 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. that justified the admission. fairness. and accuracy (3). your) side of the case. The most familiar variations include attempting to get you to generalize about psychiatry and ignore the differences among the schools of thought within the field. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. not the mental status by itself. to kill coworkers. A patient was committed because of threats. although the history. Accuracy addresses the clarity of your vision in relation to the known facts in the case.
Prepare for this. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. 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”). 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. To do your job. as noted above. Occasionally. if more time turns out to be required. you must be rested. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. focused. you were probably not paying sufficiently close attention. 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. Unfortunately. More details about this necessity are discussed later in this chapter. this also takes a toll on the court reporter. Get enough sleep the night before the deposition.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. however. 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. another deposition date can be scheduled. your opinions (and their limitations). using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. looking for dirt before even addressing the instant case. If you do not go home after a deposition feeling tired and drained. several factors urge clearing substantial blocks of time for deposition. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. try to eliminate distractions. Rather. Still others. and your planned testimony. alert. A small number of attorneys attempt to wear down the expert by sheer passage of time. 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. aware of the serious weakness of the substantive aspects of their case. and vigilant at all times. The expert should clear a full day for the deposition to be on the safe side. . hoping to hit the key points if only by accident. intense concentration sustained over hours is hard work.
I am serious. 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. or evidence of a propensity for violence. Note. And the third part of your question is. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. so you were negligent. If there is the slightest doubt.] Answer (by case manager): I don’t think I would agree with that. but it is quite risky and may compromise clarity. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. so you were negligent.62 THE PSYCHIATRIST AS EXPERT WITNESS. his act could . let me answer all three components. no. Second. ask to hear it again or have it read back. Question: So. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. yes. the case manager’s lack of understanding might be negligent. therefore. 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. ask that it be broken down. you can give a useful compound answer to a compound question. which I codirect. it is serious. in the following example. On rare occasions. A more effective answer might have been. in order to determine competence. can we agree that on [date of murder] you did not have a clear understanding of [patient’s] propensity for violence? [Questioner assumes there was a propensity in the patient—a hindsight view—hence. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. I don’t—I wouldn’t agree with you there. warning. or you knew and didn’t act. 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. to be an appropriate way of determining competence in the clinical situation. yes. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. Question (attorney for staff member): Knowing what we know today. “The patient gave no sign. If the question is compound or complex. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. they have to enter into a dialogue with their patient.
a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. Gee. which might be used against her nursing colleagues.] Yet another deposition tactic is what I call gerrymandering the data.”] Question: Is that the procedure in which you make notes. [The witness sets her own standard of care. Note that an excellent and self-contained answer to such a question or line of questions is. 5 years and hundreds of patients later. The deposing attorney inquired. moreover.] Answer: Gee. not the only possibilities. and grandiosity. or did you make that entry based on information given to you by others? [These are. of course. challenge. I sure hope I saw him because I usually don’t write things unless they are true.” would be perfectly okay. any good nurse does that. not the individual element. that the witness specifically remembers such a detail. paranoia. Question: Did you observe [patient] attending those meetings. For example. did not constitute sufficient evidence of bipolar disorder (although. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. But this witness has set a standard for herself: “hope for truth.Discovery and Depositions 63 neither be foreseen nor be prevented. the answer. reveals the hazards of too effusive. In addition. no. When seen. or weaken certain conclusions (4). “In a vacuum. [This is not an answer to the question. you write down what you have observed. and too extensive an answer to deposition questions. of course. “I don’t recall. testifying 5 years after a suicide.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. the totality of symptoms did so). The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. right. Clinical data also can be cut into discrete segments to attempt to refute. in a vacuum. vulgarity. The following excerpt of testimony given by a naive fact witness. making a chart entry based on what you were told by other staff —for example. Obviously. from a previous shift—is universal practice. Her answer ignores the fact that the record does not always note the source of the clinical data.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. not what others have told you? [The attorney tightens that very screw.] Answer: Right. . the patient manifested rapid press of speech. too discursive. the witness should decline to answer yes or no to such a question. social obnoxiousness in various ways. It is unlikely. a patient with apparent bipolar disorder challenged an involuntary commitment.
insist on a time frame. in essence. pause a moment. Speak slower than usual. terms.” “I don’t know. drugs.” reflect a moment on why the time frame might be important in relation to that particular question. 3. clearly. (See also Chapter 5 in the companion volume. whose written record will be the actual form of the deposition in all future contexts.” or a short narrative response that contains the question so that the response. not only for the spelling of your name but for contact after the deposition for questions. and the like. review the corresponding discussions in the companion volume. Insist on finishing your answer to your satisfaction. not your glib response in the deposition room.” “I don’t recall. in the belief that your pause means you have finished. nods. incomprehensible questions. Other useful basic tips include the following: 1. immediately correct . in effect. your attorney may be trying to call your attention to something. shrugs. Some key points made in that volume are the hazards of guessing. “Objection. Be careful about overlapping speech. the trap of double negatives in the questions. Recall that the written transcript is the durable version of the deposition. Correct any errors. If your concentration slips and you give an answer that you later believe was wrong or even misleading. “yes. Attorneys may sometimes interrupt your answer. shakes. Do not tolerate this interruption. 2. a garbled record from too-fast speech wastes everyone’s time and money. SECOND EDITION The Pregnant Pause After the question is asked. Spell unusual names. and other myoclonic responses. cannot be quoted out of context. instruct you not to answer. Giving the stenographer your business card before the deposition is a highly useful courtesy. and carefully for the stenographer.” “no. or you might infer something useful from the type of objection posed. If your attorney says. usually accidentally. because the stenographer cannot record winks. They are. If any of these summary phrases do not trigger recognition. and so on. and the importance of speaking slowly.) Your answers must be verbal and aloud. Overlapping dialogue is awkward or impossible for the reporter. Answers Deposition answers are drawn from a surprisingly shallow pool. lack of time frame. who cannot take down two simultaneous conversations and produce a clear record. Pausing allows you to replay the question in your head and to think about your answer. but sometimes they do so deliberately to distract you or to break your concentration. The pause also allows other attorneys to object. Also remember to listen carefully to the objection. The Psychiatrist in Court: A Survival Guide.64 THE PSYCHIATRIST AS EXPERT WITNESS. each speaker should finish before the other begins.
the doctor might answer: “Well.. where you are retained by the defense.Discovery and Depositions 65 it on the record. Therefore. I tell a lie... for example. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. . First. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. Two points about this problem should be kept in mind.To tell the truth. these otherwise colorful colloquialisms must dismay the listener and raise questions about either the testimony or the seriousness with which it was delivered—both unfortunate concerns.6].) When to Throw It Away In my consultative experience. 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. . To err is human. pp. Therefore. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. Therefore. In a suicide malpractice case. (The question of coaching is more extensively addressed elsewhere [5. . the deposing attorney may ask. the entire deposition takes place under oath and under penalty of perjury. However. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. . but I can’t say that any of them were [sic] precisely like this one. When in doubt. “Doctor. As a deponent witness. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer.” (3. this may be phrased as when to throw away the “throwaway” questions. because no two fractures are exactly alike. 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 I said that. Second. would you agree that a patient’s sui- . exercise this option. the deposition may be paused for that consultation. if you are concerned specifically about a matter of privilege that may govern your answer. . . No. he could accurately answer in the negative. I’d be lying. but leaving the error on the record means having to retract it on cross-examination. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer.” Of course.
It is not the defendant’s negligence that is at stake in this situation but your credibility. not unlike some patients in psychotherapy whose doorway pauses—“oh. wait until it gets ridiculous. and you answer it. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. influenced by the TV show Columbo. throw it away. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. Your retaining attorney may also get into the act. When the answer is that clear. have some water. Subjected to the silent treatment. Quibbling over the possible exceptions or equivocating in some way helps no one.” Wait to relax only after the stenographer has put away the machinery. make the concession. just one more thing”—contain vital material. still. of course. but the lack of the note did not cause the suicide. and move on. but you know enough not to get involved in that “thing. Curious Questions The absence of a jury and of a judge to rule on the appropriateness of questions sometimes gives deposing attorneys the feeling of freedom to ask questions that might be disallowed by a judge or be seen as impertinent by a jury. on the record. check your watch. by the way. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. thinking about dinner and work to do later.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. . having inexplicably found his or her second wind. is “It ain’t over till it’s over. may attempt to get some off-the-record insight literally in the doorway. an attorney may look ostentatiously at his or her watch and say. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney.” At that point. an attorney. the novice witness relaxes and loses focus. “Just a few more questions. The moral here. Occasionally. Doctor. Remember that the failure to write something down may be below the standard of care. in the colorful argot of the national pastime. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. now begins to fire rapidly at the witness. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. The attorney asks a question.66 THE PSYCHIATRIST AS EXPERT WITNESS. With an encouraging smile the attorney looks expectantly at you without saying anything. and we’ll be done.
For example. 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. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. the subject matter. This method sometimes involves carefully answering the question that the attorney should have asked. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can. they often fail to realize that they do not have forensic evidence to back up those notions. Some questions are curious because the attorney appears to be flailing at.and the answer to that question is . The only valid answer is that those questions are outside your 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.Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor... make sure you include the question in your answer on those occasions so that no one is misled. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. 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). if you’re grossly suicidal and you have access to guns and drugs and alcohol. and answer that part.” in a manner to ignore those feelings. using categorization..” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. therefore. but I’m in favor of sensitivity. as is “That is outside my area of expertise. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. Note how the first question was a total loss and had to be rejected completely. “I don’t know” or “I don’t remember” is a fully appropriate answer.. rather than asking about. that we can’t isolate ourselves with notions of “I’m not part of our society.” Avoid the narcissistic trap of “I can answer anything. I find your question a little confusing. No expert is expected to be an expert in everything or to remember everything. “I understand you to be asking me.” . and this response is perfectly appropriate..
clear. mediate the debate. The two sides. no matter how generic or basic it may seem. never losing your cool. stay seated and keep quiet until it is over. but your belief might interfere with your detection of negligence in this case. In one deposition. more boring. careful speech that may be more formal. threaten to go before the judge to plead their points. scream at each other. 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. meaning that you assume that the documents are what they seem to be. and far less friendly and instructional than it would to a jury. should that become necessary. Do not do anything.68 THE PSYCHIATRIST AS EXPERT WITNESS. the next question will be coming your way. The only vital difference is the way in which you speak. As noted. . that is not your problem. “I can continue until midnight. firm. clear. I know that’s a good hospital. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm.” This assumption is dangerous because it suggests bias. more pedantic. Because the stenographer (and not the jury) is your audience. In the specific malpractice context. That is as it should be. unfailingly polite. you will make it worse. There are good hospitals out there. The only assumption you should make is good faith. “Well. for example. after which the expert examines for evidence either way. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. This fight is an attorney-to-attorney matter. so I assumed that they knew what they were doing. you will be addressing him or her in slow. When everyone is through. Your attitude should convey. “Did you make any assumptions about the case before you began?” You may be tempted to say. Clinicians may be tempted to call on their clinical skills to temper violence.” This position of timeless patience puts the onus appropriately on the attorney to move things along. more technical. this implies arranging coverage for your patients should a crisis occur. A situation that. you assumed it was a medical record in good faith. authentic or merely theatrical. and so on. and you might well know some of them. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. stand up in their chairs. and demonstrate other regressive behavior. occurs rarely may throw the novice witness: a roaring fight between attorneys. or facilitate calm negotiation. the parties are really the parties in the case.” as it were). If the admission note turns out to be a forgery. Assumptions The deposing attorney may ask. heretofore quiet and almost appearing bored by the proceedings. fortunately.
” For the above reasons the answer to the question as to whether you made assumptions should not be “no. Comparably. In a criminal context. Alternatively. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. yet the clinical diagnosis and treatment still may meet the standard of care. of course. then. desperate for stable islands of consensus in the tossing seas of uncertainty. the parallel assumption would be “Sane. inescapably. competent. Some experts respond that the DSMs are not authoritative. but ask to be shown to which one the attorney is referring. these publications are not uniform in authoritativeness. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. Remember. may imitate the attorneys by overvaluing these texts and ignoring their limits. or article) is authoritative in the field or in the subject of the current case. Most modern books and articles have multiple authors or editors. and DSM gives the formal criteria for diagnoses. For example. both sources are “authoritative”: PDR contains the actual package insert information about drugs. merely official.” Learned Treatises In the course of a deposition. the examining attorney may ask you if a specific text (book. Moreover. However. no one wrote a previously published book or article with the exact case in mind in which you are involved. chapter. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. In one limited sense. you may be asked to supply the names of authoritative texts yourself. to make an informal clinical diagnosis. including those parts which conflict with your testimony. have their limits. note whether you agree or disagree in general with the stated points. After reading the entry carefully. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. But both. this is a matter of risk management for the pharmaceutical companies. and innocent until proven otherwise. you cannot take the position that no text is authoritative. 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. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . Novice experts. the disclaimer at the front disavows its applicability in many forensic contexts. Be sure to maintain a sense of proportion about these references and their utility. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage.
The latter may be privileged. In contrast. Your attorney then can communicate with the retaining attorney..e. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. well before the deposition. Above all. You must exercise some care in these discussions as they may be discoverable. Give both (or several) points of view if they exist. record notes. be balanced and accurate. The usual audience of the standard deposition is the stenographer. Obviously. Arrange to do so with the attorney sufficiently early. Under some circumstances.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. let the attorneys determine whether it is discoverable. Any notes. and so on so that you can buttress all your conclusions with specific elements from the database. review your files as diligently as if you were going to trial. the camera is . Many attorneys anticipate this problem and send only bland correspondence. p. it is wise to review—and if necessary. In some cases. police reports.70 THE PSYCHIATRIST AS EXPERT WITNESS. rehearse—the details of the links between your conclusions and the facts. statements. If you are really unsure about something. Also. this conversation is protected. you also may want to meet one more time with the attorney’s client before the deposition. some discuss details of trial strategy in their letters to you. especially if details remain unclear or if over time the clinical condition has changed or evolved. actually visiting a site may be important.. summaries. check the accuracy of any numbers (9). 571) Final Predeposition Preparations Before the actual deposition. In addition. outlines or summaries for quick reference) may be subject to subpoena for the deposition. remember to go to bed early. (8. The Video Deposition A modern wrinkle on the procedure is the video deposition. Frankly admit if anything has been removed from your file. in the video deposition. consult your own attorney. whose transcript will endure and be used for any impeachment possible.. or “cheat sheets” (i.. Meet with the attorney and review the issues. and you may have to furnish copies to opposing counsel. laboratory values. SECOND EDITION When quoting the literature. but this is not your problem. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. you will need to review a wide array of information.
The video deposition presents a number of possible pitfalls. If the expert is known to be unavailable for the trial dates. Remember to keep your language level. and pedantic level of the ordinary deposition but in basic. “irresponsible” as “responsible” are small changes with profound results. In the current economy. say. not at the ponderous. 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. instead of—your personal appearance in court. My personal favorite is when the phrase.” 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. and the deponent signs under pains and penalties of perjury. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. representing the jury. If the deposition has been particularly instructive or noteworthy. “It’s an us-and-them situation” was rendered “It’s an S and M situation.” and rendering. the expert may wish to retain a copy for teaching purposes after the case is over. the retaining attorney. Recall that omission of a comma. or the deposing attorney for distribution to the parties. Most court reporters are extremely good at their jobs. who may see the video displayed in addition to—or. at times. you should try to direct your gaze toward the camera lens. .Discovery and Depositions 71 the audience. the video may also serve as the vehicle (in this case. juror-friendly. careful. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. As in the trial described in the next chapter. but errors can creep in. After the Deposition Always ask to read and sign the deposition. the deponent expert should always ask for a personal copy to review in preparation for trial. When you receive the deposition transcript. of the word “not. trial-suited English. you are under constant scrutiny. the only vehicle) for the expert’s testimony. This approach risks eventually being papered out of house and home. and must beware of inappropriate gestures and personal bodily attentions. read it very carefully. jargon-free. this time in a permanent record. checking for errors and typos. but under some circumstances the notarization can be waived. At least one copy of the transcript is returned either to the court reporter.
Mills MJ: Legal conceptualization. Willliams & Wilkins. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Child Abuse Negl 17:571–572. The Practical Lawyer 33:69– 78. J Am Acad Psychiatry Law 29:313–318. Defense Counsel Journal 4:174–179. 6. The Practical Lawyer 39:55–63. SEAK. 2003 Kaplan HI. 1996 2. South Bend. 8. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. 3. 39–40. Baltimore. 2007 Gutheil TG: Reflections on coaching by attorneys. Current Psychiatry 7: 25–28. J Am Acad Psychiatry Law 34:18–22. 6th Edition. Williams & Wilkins. Bull Am Acad Psychiatry Law 10:17–27. 2001 Baker TO: Operator’s Manual for a Witness Chair. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). Baltimore. 2005 Suplee DR. Lippincott. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 2006 Gutheil TG. 1999 Babitsky S.72 THE PSYCHIATRIST AS EXPERT WITNESS. Gutheil TG. 2008 Rice B: Malpractice: how to survive a deposition. SECOND EDITION References 1. legal fictions. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. Falmouth. 7. Med Econ 82:45–48. MA. 1987 . Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Suggested Readings Babitsky S. Vols 1 and 2. Milwaukee. IN. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Falmouth. MD. MA. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. SEAK. 1993 Malone DM. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. Simon RI. WI. MD. J Am Acad Psychiatry Law 31:6–9. 5. Woodruff MS: Deposing experts. Defense Research Institute. 9. 1982 Gutheil TG. 1983 Gutheil TG. 4. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. National Institute for Trial Advocacy. Simon RI. 36.
Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. settled. preparation means not only reviewing the entire database with great care but also thinking through the story you plan to tell by means of your direct testimony. trials do come around every so often. Planning. examining the companion volume. 73 . 1. If you are uncertain about the guidelines for trial preparation. Preparation. I addressed the six Ps of trial preparation. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. I review some of the basic courtroom procedures. pled out. For experts who have spent little or no time in court. In this chapter. If you are testifying away from home. The Psychiatrist in Court: A Survival Guide. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. the same six Ps should be reviewed but with a slightly different emphasis. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. For the expert witness. and they are the subject of this chapter. 2.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. Nevertheless. For the expert. and devising means of locating key passages in the database quickly. review that chapter. is recommended as an orientation. review Chapter 10 (“The Expert on the Road”) in this volume before setting out.
the floor of the courthouse on which the courtroom is located. Review the weaknesses in your opinion. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. If you have a disability. the location of the trial. Confirm travel arrangements and other details.74 THE PSYCHIATRIST AS EXPERT WITNESS. You should rehearse ways of expressing information to the jury. and all such details. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. the unknown issues. You also need to hear how the trial is going. Define the limits of your testimony. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. and your past experiences. Consider taking a taxicab to local courts to avoid parking hassles. you need to know through choice and practice how you will convey your opinion to the jury. your publications (especially those relevant to this case). Most of these matters are best handled on direct examination where some measure of control can be exercised. Practice. Even more distressing. The pretrial conference is probably one of the most important stages of preparation for trial. . 3. 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 sketching any visual aids you will need for the courtroom blackboard. parking arrangements. and the expected cross-examination. Pretrial conference. location of restrooms. what the judge is like. and what the emotional climate of the courtroom is. Presentation. Clarify in your own mind how you plan to deal with questions about your fees. It is not enough to know the database. Clarify and confirm your travel arrangements. and select useful examples from your experience to make central points. 6. the contradictory evidence. Build in contingency plans for the possibility that the trial extends into the next day at least. Pitfalls. 4. 5. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. On cross-examination. and the data relevant to the other side of the case. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. Insist on this conference if the attorney is equivocal or resistant to the idea. what previous testimony has been given. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). 7. the relevant literature.
a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. The topic requires more extensive discussion (1). named for the plaintiff in an important U. Such a hearing. rise for the judge’s entrance. this kind of potentially valuable hearing and screening device can also be abused (2). that is. sit down. where the jury will be and what . 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. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well.The Expert in Trial 75 The Daubert Challenge In an effort to ensure the validity of expert testimony and its underlying methodology and to prevent “junk science” (unsupported or idiosyncratic theory) from entering into the court’s deliberations. much valuable information can be gained and the tone of the room determined. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). Once in the courtroom.e.S. may occur prior to trial (occasionally. Supreme Court case. experts are not allowed to be present in court for the testimony of any other witnesses. 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. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. you will find it valuable to locate the restrooms and telephones. Regrettably. From the viewpoint of the expert. its methodologic reliability. Before going into the courtroom. and to ensure that recognized approaches to the subject matter are chosen. and whether the testimony will fulfill the legally required expert function in the court. but if you are the only one standing. which are sometimes in obscure locations in older courthouses. 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. Wait in the public seats until actually called to the stand. particularly experts. Practical Matters Preparing to Go On Many courts sequester witnesses. the best approach is to exercise care about the methods used to reach conclusions. to be able to articulate the bases and reasoning behind those conclusions. When you are allowed to hear the testimony of other witnesses.. Doing so is supposed to decrease anxiety and give you a feel for the setting (i.
Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. in an often extensive chart or deposition. because his or her opinion is being given from memory. My own preference is to strip down what is brought. Each preference has its pros and cons.g. 2) as noted.. if needed. and 3) you may become lost in excessive data. 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. 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). essential medical records . These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. dog-eared pages. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. The expert appears more confident and knowledgeable about the case.76 THE PSYCHIATRIST AS EXPERT WITNESS. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. On the other hand. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. Key documents might include my report and interview notes. When no documents are before you on the stand. What to Bring Experts and their retaining attorneys vary in whether they prefer. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. SECOND EDITION the room looks like from the hot seat). Note again the importance of having and practicing a plan of organization. yellow self-stick notes. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. as are all the substantiating data. or your own table of contents devised for more extensive documents. a particular citation is. The downside is the need to remember a vast amount of detail and to recall where. 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. tabs. the attorneys will have it). Recall that in almost every case. even for experienced experts. only a copy of the expert report that is already in evidence or only a curriculum vitae). having the whole database on the stand permits greater support of your testimony with specific data from the documents. The expert should determine which of these two approaches is more suitable. while the experts are testifying. Note that some anxiety is normal.
Stick to the conservative business mien. what you wear should fit well and be well broken in. perhaps comfort should rule. depositions. or if you must. 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. Above all. highlighting marker. testifying is thirst-provoking work. It is important to include material that supports the other side of the case so as not to produce (or seem to produce) a partisan trial database. If you are completely uncertain about what to wear to court. For depositions of less central players in the case. glass. and check in. Indeed. Do not wear or carry your cellular telephone or beeper. and you will not go wrong. Finally. the defendant or . A handy pen or pencil. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. It is unclear whether either strategy is superior to the other. your mode of dress should convey the fact that you are a professional in the courtroom on business. eccentricity. I can use my table together with the attorney’s copy of the deposition.The Expert in Trial 77 (pruned to relevant periods if needed). the bailiff usually will keep it filled. Arranging for a cup. and similar data. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. Avoid either ostentation.e. during breaks. in the sense that you are usually under observation by someone—the bailiff. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. Demeanor Being on the stand is not unlike being filmed. What to Wear Experts tend to fall into two general categories: 1) those who try to look like lawyers and 2) those who try to look different. This table of contents enables speedy reference to key facts. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. if you must. do not wear new clothes. and cutting-edge high-drama fashion or excessive informality.. the bored juror. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. ornamentation. affidavits. showing off how busy you are and how court is taking you away from really important matters. If I need the actual page or quote. ensure that they are turned off. or carafe of water is an excellent idea. I take to the stand a one-page table of contents (i. Arrange appropriate coverage so that you do not have to worry about being reached.
Doctor?”). Beware of “involuntary” gestures. not of the attorney in question. If you become huffy or outright mad. you win the exchange. Your identity on the stand is that of teacher. attorney moves on to another subject]. such as rolling your eyes at the jury when a particularly fatuous question is asked. an attorney—at all times. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. Such reactions may be misconstrued as disrespectful. impugns you. or obtuse to the seriousness of the issue. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. There is no reason for a teacher to get mad. it is important. for example) as body language consistent with candor. Avoid personal body attentions (such as scratching) as much as possible. as follows. not credible. Without such alliance. or degrades you. SECOND EDITION plaintiff.78 THE PSYCHIATRIST AS EXPERT WITNESS. humor may seem disrespectful. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. . If the attorney is hostile. Scholars recommend keeping the front of your body open (by not folding your arms. and you want the jury to understand it. humor directed against yourself may show that you do not take yourself too seriously. get interested in what you have to say and stay interested. and sarcastic. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. demeans you. all such chips are apparent) is particularly unconvincing. Doctor. Be clear. 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. even when someone else is speaking. A witness with an apparent chip on his or her shoulder (and in court. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. but of the jury or the entire process. fluffy. obnoxiously facetious. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. however. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. sneering. and you are unfailingly polite. flip. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. With discretion. Make your point because it matters. and stuffy. you are likely to be too involved and therefore possibly biased. Even when an attorney attacks you. Attorney (with a slight sneer): Isn’t it true. you know or should know that it is not personal and has nothing to do with you.
If no microphone is provided. If in any doubt about your speech volume. Finally. to accept a possibility as such (almost anything is “possible. a juror who cannot hear may be hesitant about saying so in open court. As occurs during the depositions noted in the previous chapter. Speak to the most distant juror to be sure your voice is audible. . Direct your extended remarks to the jury. to concede a point that really doesn’t mean much. concede a remote possibility and move on.” that is. If you must use. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p.The Expert in Trial 79 Being fluffy means being too abstract. and to admit that rules have exceptions. blunts your argument and weakens your credibility. and “waffley. not just a classroom exercise. They are not excessively academic. Although you are a teacher. understandable manner that brings the details together in a recognizable gestalt. or waxing argumentative rather than instructive. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). avoid discussing unconscious dynamics unless absolutely needed for your point. It is not the same as “certainty” (100% sure). Testimony Direct testimony should unfold in an organized manner. good teachers are lively and interesting. the most common beginner’s error in the courtroom is the inability to “throw it away. but without intimidating staring. In general. the concept is sometimes rendered mathematically as a 51% certainty. as a result of your careful and thoughtful preparation with your attorney. explain. yet may ultimately give up on your testimony after straining to hear for too long. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. or respond to jargon. the trial is a human process. even inhibited souls will nod if they can hear. ask if you can be heard by the farthest ranks of jurors. or prone to nit-picking. project. pedantic. jargon laden. they are usually poorly received by juries. theoretical. not stuffy. making roving eye contact with various jurors whenever possible.” Make your point as concretely as necessary and back it up with hard data from the database. Haggling with the attorney over a tiny abstruse point. Keep in mind the expert’s role in telling the story in a coherent. evasive.e. Because jurisdictions differ as to the precise definition.” but only a few things reach reasonable medical certainty). adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. to agree that some things happen sometimes.. what fools these jargonists be). If a microphone is available.
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
” but this appreciation is lost if the jury cannot understand or follow your description. even if the technical details are lost in the shuffle. Adventures in Cross-Examination For experienced experts. just like putting your hand over the vacuum nozzle. stutter. That is how this kind of antidepressant or mood elevator works. “I don’t care to waste my time on this whore. 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. In the same way. and throat clear that you emit on the stand. The jury hears the testimony twice—an aid to both memory and persuasion. any testimony from this witness would be bought and meaningless. it is numbing to a jury.” preferably said in a mildly contemptuous tone.The Expert in Trial (draw a barrier) this process. may record every pause. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. 83 Although this mode of explanation may seem cumbersome. the best cross-examination is. I have been impressed by their ability to grasp what is at issue. as if to convey. As you can grasp by merely reading this response aloud. Um—as the events became closer to the—um—incident itself [the murder]. do not underestimate juries. and the expert has theoretically prepared to tell the story in a coherent manner. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. Recall that this is direct examination by his own retaining attorney. and slavishly but perfectly appropriately. 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. if you do that. the jury usually appreciates being given the “inside story. The hazards of lack of practice are revealed by this following segment from an actual murder trial. . Consider practicing such a description with your attorney or colleagues or friends. “I have no questions for this witness. Over the years. The expert is on direct examination by his own retaining attorney. the chemicals stay in the spark gap and keep working so that your mood is lifted. such an avoidance of cross-examination is sound trial strategy. depressed— um—and seeking help. the dirt stays on the floor. grunt. Respect the juror. This is a powerful argument for at least organizing your thoughts before you begin to testify.” Realistically.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. some scholars assert.
” are almost always answered yes on the theory that almost anything is possible).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. First. If you want to say. or the answer may be obvious from the question (i. isn’t that right. interrogatory. It is better to say. which may be asked on cross..84 THE PSYCHIATRIST AS EXPERT WITNESS.. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”).” the attorney may move on to the next question after you have said. however. such as the previously listed leading questions. the attorney asks closed questions.” . what you say is often true in other cases. Instead. attorneys do not perform this simple but effective maneuver. The following are some examples of the last (all are leading questions. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. equivocating hurts you. Throw it away. and even the attorney’s competitive feelings directed toward the expert. no problem.e. “that’s generally true” and you may be too flustered to challenge the action. deposition. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. but in this instance it is not. SECOND EDITION Most often. “Although the present case is a clear exception to that rule. “That’s generally true. The attorney may know the answer to a particular question from the expert’s report. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. or alternatively. the attorney’s wish or need to have the client see the attorney doing something. ask only questions to which only one answer is possible (fittingly. The tight rein on which you are held may make it difficult to get your opinion out there. never ask a question to which you do not already know the answer. 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. the attorney’s competitive strivings with the opposing attorney or firm. surprisingly. Even those attorneys who opt to engage in cross-examination are usually (but.”) or exhibitionism (“Watch me shine!”). the question answers itself ). not always) aware of two fundamental principles that should guide this activity. or publications.
some sources suggest answering at the outset. At times. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. state that you cannot answer yes or no. or have you dozed off? It is best to state. Practically. We’ll reconvene in 15 minutes. the attorney may quote something that you wrote or lectured on. if needed. At such moments. this type of questioning means that you have only three answers available: “yes.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). Breaks During breaks that occur in the middle of cross-examination.” This response may be foreclosed by the judge directing you to answer anyway. and think seriously about whether yes or no will represent the whole truth. say it. a judge may even decide to declare a recess: “While you are thinking. 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.” and do so. Always ask to see the context if you do not immediately and completely recall it.” The break gives you ample time to think. Quotes On cross-examination. a question will require more time for prolonged thought or searching of your memory. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . You took an oath to tell the whole truth. to consider your answer carefully. and to allow your attorney to object.” “no. if not. Doctor. “I’m going to take a moment to think about that. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. If either will do so. we are going to take our midmorning break right now.” Listen with intense attention to the question. The key word is truthfully. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. Scholars liken agreeing to this either-or approach to signing a blank check. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. some attorneys advise not discussing your testimony.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no. and a mere yes or no may fail to convey the “whole truth. consequently. to be sure you are clear about the question.
if requested. For the lunch break. 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.86 THE PSYCHIATRIST AS EXPERT WITNESS. the one that counts. Now you must testify on the witness stand. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. Your final opinion. SECOND EDITION sions with your own personal lawyer are protected). had it changed your opinion. The thrust of this line of questioning is to convey that your opinion is premature. Some experts want to call their offices during breaks. I recommend avoiding eating heavily. could change with complete validity based on some new fact that you hear for the first time during the trial. you may have written a report after reviewing some quantity of material. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. you may have been deposed. The Final Opinion During the course of expert consultation. or inadequately grounded in data. Subsequent communications may be labeled supplementary reports to keep the sequence clear. but let’s assume it did not). . your opinion. even worse. incomplete. In theory. is your actual trial testimony. because it is based on data. in the trunk of your car. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. you have confused loyalty to your attorney with the oath to tell the truth. This change is as it should be. Later. others find telephone calls distracting and let whoever is covering for them handle things. These include biological and physiological crises or circumstantial ones. as a “preliminary” report. An aid to this conceptualization is to label your first report. you would have been obligated to so inform your attorney. Crises Various crises may strike while you are on the stand. such as the discovery that you have left a key document in your suitcase across the courtroom or. Use your own judgment and knowledge of your biorhythms. and some additional material may have come your way just before the trial (which. 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.
This behavior conveys too much interest in the outcome for someone who is not a party to the case. Your job as expert is important to the case. “Thank you. If you do shake hands. and sit more upright to relieve tension. No one knows the effect of these gestures. you seem to be acknowledged . It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. Deal with the problem and then continue with your task with restored focus. nod politely to the jury. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. that’s all. conservativeness is probably better (the discreet nod rather than the glad-hand wave). Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. The judge will almost always grant this. The judge dismisses you by saying. and both grudgingly acknowledge that neither has any more questions for you. when you are through. Doctor. entitled. or to learn of other subsequent activity. Forensic etiquette requires that you just leave. or weak. fans!”). at odds with your objectivity. you will appear inept. it is preferable just to hang in there. for example. it poses a dilemma of a no-win situation. “You (or the witness) may step down” or “Thank you. and go. Do not hang around to hear what other witnesses say. Do not stop to chat or debrief with the attorney. measured breathing. wave at the jury box (“So long. On occasion as I have left the courtroom. Your Honor. What do you care what happens? You only testify under oath. and serious distractions impair your work. by needing to go to the bathroom. Do not be inhibited by fears that. as always. you exit. it invariably conveys the strong suggestion of partisanship. While this is a common and respectful courtesy. get down from the stand.” At this point you say. or emit other social behaviors. to see the outcome. If a delaying tactic is not used. More troublingly. sickly. Focus on slow. stretch your limbs behind the screen of the stand. The End of the Affair Finally. childish. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. Ask the judge if you may take a brief break for personal reasons. one of the parties or even one of the attorneys reaches out to shake my hand.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). Some more extroverted experts thank the jury out loud.
Gutheil TG. Because this brief volume can serve only as an introduction. Surprisingly. and the like—impinge on trial outcome. Take only your report. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. J Psychiatry Law 28:235–251. Forces beyond your control and outside your testimony—such as the demographics of juror selection. the best teacher. “juror countertransference” toward the attorneys. if you do not or you ignore the outstretched hand. you seem rude. some forget. always seek feedback and reactions to your participation. For your personal development as an expert. 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. as much as possible about what happened and why it happened. while acknowledging that experience is still.88 THE PSYCHIATRIST AS EXPERT WITNESS. Most courteous attorneys will inform you later. this task is for the lawyers. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. 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. 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. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. as always. SECOND EDITION for good (but partisan) work. however. 2000 . Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. by letter or telephone. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. It is perfectly appropriate after some time has passed to call and ask the outcome. If you have traveled far with a heavy load of database materials. References 1. Finally. A far more detailed analysis of testimony can be found elsewhere (5).
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
requiring two parties to match schedules.” in this volume). As a rule of thumb.. although obviously fewer persons and a shorter time frame are involved than are for trial. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. sharp. add another layer of challenge. a forensic interview. You’ll be out of there by lunchtime. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. flexible. but during the very week that you have scheduled four weddings and a funeral. so let’s put you on first at 9:00 A . comes before a report. negotiation. which also require several people to synchronize their schedules. and telephone calls to resolve them..” Smile politely when you hear these words but make expansive plans. theoretically. maybe 2. I can’t imagine my direct examination taking more than an hour.e. You may have a little room to maneuver in terms of the order in which you testify. but things happen. others are not. with a deposition for a third case. Trials take first priority. the trial should take precedence. I know you have a busy schedule. of course. tops. hours. Because your reports can be done at any time of the day or night. The last two priorities are interview and report. The second priority is depositions. An attorney who planned to have you “bat cleanup” (i. the other side may be willing to have your testimony inserted into their side of the case. with suitable preparation of the jury. he or she will be exerting the greatest efforts to make it all work out. attorneys. SECOND EDITION for months without any forensic activity whatsoever. “The Expert on the Road. You can count on your eyeballs the number of times this clockwork model actu- . testify last in order to summarize) may be willing to move you earlier in the case and somewhat restructure your direct examination to compensate for this maneuver. This type of schedule is close to reality. Travel glitches (discussed in Chapter 10. for example: “Doctor. court dockets are crowded and leave little flexibility. If a trial and a deposition are scheduled for the same time. and other-side attorneys are reasonable. You must do the best you can with what you’ve got. Large numbers of people are involved. two trials in different states will be called simultaneously. and accommodating.92 THE PSYCHIATRIST AS EXPERT WITNESS. cancellation) is as follows. You’ll probably be cross-examined for 1.M. and serious matters hang in the balance. The tension here is that some courts. the hierarchy of urgency and therefore attempted postponement (or at worst. Because your attorney has the most interest in your presence. In extreme circumstances.
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. Gutheil TG: “Paraforensic” aspects of expert witness practice. Washington. J Psychiatr Pract 12:50–54. Gutheil TG. In the end. Bull Am Acad Psychiatry Law 24:533–546. Commons ML: Trading forensic and family commitments. it is not uncommon for an out-by-noon case to extend into the next day. no clear conclusions can be drawn. a judge will treat the time between 9:00 and 9:30 A .M. 1996 Suggested Readings Gutheil TG. some are not. the odd juror gets stuck in traffic. 2002 Reid WH: Forensic practice: a day in the life. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. difficult choices may have to be made. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. Why? Although some judges are scrupulously punctual. 2. J Am Acad Psychiatry Law 32:356–358. and family.” In addition. negotiation may be possible for some scheduling conflicts but not always. American Psychiatric Publishing.) 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. Although my colleagues and I tried to study this issue formally (2). (More suggestions on scheduling are included in Chapter 10 in this volume. DC. The jury takes a long midmorning break. However. The subject may represent some kind of taboo because it is rarely discussed. The judge assigns a long lunch and hears another few motions just afterward. partner. The attorneys wrangle over whether some document relevant to the next witness is admissible. 2004 Kearney AJ.Some Pointers on Expert Witness Practice 93 ally occurs. 2006 . as a kind of swing time in which he or she can hear a half dozen motions in this and other cases and “dispose of them. Occasionally. Thus. References 1.
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or for a disability determination. In all such cases. In this chapter. a defendant’s criminal responsibility. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. In The Psychiatrist in Court: A Survival Guide. allowing careful legal analysis and reflection on whether you will be helpful on the case. a description of an independent medical examination for a personal injury suit. or a full evaluation of a person’s competence to stand trial. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. an attorney. or to serve on a jury. some basic principles on letter writing to the court are described and are not repeated in this chapter. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. 95 . 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. for a worker’s compensation claim. or a physician’s deviation from the standard of care. I focus on writing the full-fledged forensic report. a court. to serve as a witness.
then. of course): 1) no report.. Without referring to other documents. Resnick. In other situations. Obviously. . General Remarks The report as a whole should meet certain criteria. detailed report. for which I am most grateful (where I cite his material. 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. It should be just long enough to cover the essential information but not so long as to exhaust the reader. SECOND EDITION Alternatively. may take three major forms (with variations possible. I emphasize the third form. all should govern the form of the report. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. the attorney may ask that you not furnish a report. M. “Reports should be self-sufficient. 2) a summary report. which states all of your conclusions and the analysis of all the relevant substantiating data. simplicity. which in that jurisdiction is discoverable by the other side. Phillip J. the report may present materials or approaches that the attorney does not wish to share with the other side. brevity.D. For similar reasons. without detailed discussion of the bases or reasoning behind those conclusions. painstaking preparation. and meticulous proofing and review of any report you produce. the reader should be able to understand how the opinion was reached from the data in the report. Resnick also identifies the “four principles of good writing”: clarity. Despite these useful functions. Resnick. According to Dr. Consequently. has generously and graciously granted me permission to cite some of his advice on report writing. because the first is self-explanatory and the second is an extract of the third. Forensic report writing. I refer to him explicitly in the text). your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts.96 THE PSYCHIATRIST AS EXPERT WITNESS. Critical documents should be briefly summarized within the report. and 3) the full. It should stand alone. and humanity. It should contain everything that you need to support your opinion and no irrelevant material.” Dr. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. which presents your database and conclusions only. In this chapter. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions.
Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report. of the report should address the question of why you are writing this report. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. The heading should also include your letterhead and the date of the report. what is your standing in the case that justifies this missive? How and why did this examinee get to your doorstep? Examples might include the following: • “At the request of Attorney John Smith (or Judge Janet Jones). . emotional injury or psychiatric malpractice). the case or docket number if known. One way is to provide the case citation or caption in whole or in brief (e. sometimes called the referral.. and depositions. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . or State v.” Some attorneys. or the type of case in a civil matter (e. reasoning that the occasion is obvious from context.” and subsequent contributions.” The Database After identifying the occasion.g. The Occasion The occasion. Resnick is included at the end of this chapter.” • “I examined Ms.. In that case. use a standard business letter format.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). Identifying data can be presented in a number of ways. I examined (name of examinee) with regard to (forensic issue). or emendations should be titled “Supplementary Report. the charges in a criminal case. One model by Dr. additions.g. otherwise. Smith v. Jones et al. that is.. think of your report as a memorandum and use a standardized format. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. Include any interviews per- . Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney.. legal pleadings.. police reports... John Johnson). the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records..
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. in the treatment of (plaintiff ). might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. for example. held to a reasonable degree of medical certainty. 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 . The remainder of the report is thus treated as optional reading. . or according to some natural. you are free to choose your favorite. and so on. 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. Note the wording. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. SECOND EDITION formed and their date and length. Although each group has a rationale. or other) is free to stop there and make decisions about future directions in which the process should go. it is my professional opinion. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). 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. including interview data) and your total clinical background of training (what you were taught) and expe- . A typical conclusion in a malpractice case. attorney. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. that. all medical reports. First.. The documents may be listed alphabetically. chronologically. no convincing case has been made for the inherent superiority of either approach. all depositions). logical grouping (e.g. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. about the disposition. (or.98 THE PSYCHIATRIST AS EXPERT WITNESS. 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..
a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. Resnick explains.. more likely than not). you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. In criminal cases involving the insanity defense.” In every case. it is predictable that plaintiff and defendant tell different stories. malpractice. is essentially boilerplate (i. 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. “If there are two versions of the facts. If your conclusion comes at the end of the report. The reader should not have to use his/her own inferences to understand the point. sometimes different spins on the truth. insanity. the expert should scrupulously avoid assuming one side is correct. sometimes frankly contradictory. but occasionally. Supporting Data After the conclusion. “Reasons supporting opinions should be clearly and fully stated. offer alternative opinions. standardized legal language). Dr.” Multiple Realities In civil cases. Second. Resnick states. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. 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). this section should contain extracts of previous material directly supporting the points you are making. you can present the supporting material in several ways.e. although representing the core of your opinion. usually. your conclusions should be presented in . If your conclusion is stated at the outset. Remember that the conclusion. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. be it competence. Dr. the defendant usually has admitted the act for which he or she is charged.e.. In these cases. effectiveness. As Dr. and credibility as an expert witness.Writing to and for the Legal System 99 rience (what you have found for yourself by practicing in the field about which you are testifying). Third. or other. Finally. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality.
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). Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. you may receive requests to alter the report in some ways. to alter or misrepresent facts in the database. SECOND EDITION the following form: “If the allegations are true. then .. A case example was discussed in Chapter 3 (“First Principles”) of this volume. or data (such as inadmissible material. summarizing. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. or agency for which it has been prepared.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. Some requested alterations are fully ethical. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. or to change the substance of your opinions.. asking for the addition of new material not supplied to you earlier.” This approach prevents your seeming to side with one party in the case. Postreport Negotiations After your report is finished and has been sent to the attorney. it would be a weakness not to acknowledge these factors candidly. judge. money. on the contrary. A challenging gray zone is negotiating about wording. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. and Rebuttals If there have been any constraints of time.100 THE PSYCHIATRIST AS EXPERT WITNESS. but generally there is no inherent problem . these should be recorded. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. Constraints. interview of plaintiff blocked by attorney... then . some are not. (Remember you must be candid about everything you believe to be true. There is no absolute guideline for this procedure. and deleting. then . attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. and shortening the report by aggressive editing.. Limits.if defendant’s version is true. Whichever approach you actually take in your written report.. These are not weaknesses of the report. which make for a stronger report.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. even if it has been removed from your report for brevity.
9. 13. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. very likely. Be careful about changing wording concerning issues of causation. 11. 17. Resnick’s outline for a typical criminal report. intensity (likely. The Criminal Report: An Example The following is Dr. 7. 8. extremely likely). You also may ask to see a senior colleague’s report under an agreement of confidentiality. 14. 5. 15. 2. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. and effect of emotional injuries—three common problem areas. 12. 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: 1Used with permission. 10. but it may get you started.1 1. 16. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. 6.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. . 4. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing.
25. 24. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. Guilford Press. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. New York. New York. THE PSYCHIATRIST AS EXPERT WITNESS. 21.102 18. 23. Am J Psychiatry 143:164–169. 19. Edited by Weiner IB. 20. Falmouth. in Handbook of Forensic Psychology. Petrilla J. Hess AK. 22. Wiley. SECOND EDITION Defendant’s account of the crime: Witness and/or victim accounts of the crime: Mental status examination: Physical examination and laboratory tests: Summary of psychological testing: Competency assessment: Psychiatric diagnosis: Opinion: Suggested Readings Babitsky S. 1987. 1986 Melton GB. pp 511–528 . Poythress NG. pp 577–605 Weiner IB: Writing forensic reports. MA. SEAK. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. report writing and expert testimony. et al (eds): Consultation. 3rd Edition. 2007.
embarrassments. (I believe this excluded only admiralty practice and the law of the sea. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. We retained an industrial designer to help create a logo (highlighting crimson. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. In the late 1970s.” The ability to say yes to all comers seemed like a good idea at the time. In this chapter. to connote the Harvard connection). and we drafted an announcement. We sent this announcement to every attorney we had ever worked with. a letterhead. We will let you know shortly which of our directors will be working with you.) 103 . “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. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. and a typeface for our official stationery.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. and inefficacies. heard of. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. Unfortunately.
and pride and confidence in your work versus hired gun certainty or grandiosity. speak. The Delicate Balance In all approaches to marketing. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. for example.e.. thought. clinicians) led to forensic referrals: word of mouth. “Types of Typical Cases. sharing useful information versus being pushy. is suspect and not reliable as an approach (see also Chapter 4. that is. list. an expert’s marketing strategy shifts to generating favorable word of mouth.104 THE PSYCHIATRIST AS EXPERT WITNESS. . The result was tantamount to letting a drop of water fall into a large lake. and expense resembled our own responses to offers that come in the mail to sell us insurance. The balance must be struck between dualities such as generating word of mouth versus hucksterism. opportunistic. We received a few form announcements from two or three firms about their offerings. would you get a straight answer from the attorneys you would want to work for? Strategies Various approaches to building word of mouth are recommended as you develop and market your forensic practice: announce. Support for this theory came from Harvey Research in 1994. commercialized hustling for business—or the appearance thereof.” in this volume). word of mouth). SECOND EDITION All this effort did nothing. write. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. 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. Ordinary advertising in Lawyers’ Weekly. inform. and unspecialize. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. but the net effect for all this time. Most recipients almost certainly awarded our announcement the coveted circular file disposition. The Key Approach As time went on. Based on this reasoning.
Avoid any hype. Among other roles. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. First. Thus. informative. in effect. it should be tasteful. Describe those services you can authentically offer. Serving as a guardian ad litem (GAL. 3) attorneys. Finally. 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.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). of course. Alumni bulletins and class reunions are also opportunities to get the word out. and 4) judges. previous associations with the attorneys on the other side. they will be useful to you in several ways. If you are moving into a new town. and lawyer neighbors and friends who might pass your name along. or use it in some other appropriate way. . too little time. Attorneys whom you can inform include your own attorney. then reporting to the court. Some experts replace the announcement with a minibrochure: a single. the announcement should display the professionalism that you plan to bring to the work. 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. hand it out at a lecture. or other reasons. they may think of you at that point. trifold sheet of fine paper with a brief description of the expert and the services. Opposing attorneys. 2) your forensic peer group. including listing services you are not truly expert in. 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. For your clinical peers. and factual. you may wish to send a short. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. polite letter informing local judges of your availability for forensic services. judges may need your services. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. and send it to attorneys and clinicians. Although your forensic peers may seem to be your competition. they may turn away a case because of a conflict of interest. will see you in action in deposition or trial. the GAL may do a preliminary survey of the psychiatric aspects of a case. if you have one.
Instead. Admittedly. or commentary and have it published. which are often seeking a stable of experts to comment on medicolegal stories of the moment. Write In our computerized modern age. Become active in your district branch legislative committees and processes. 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. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. this skill is acquired. both of whom may be potential referral sources. In my opinion. ambush journalism. sign up as an entry in an existing lecture series. Your podium demeanor may convey at least a little about your expected performance on the witness stand. You will be exposed to attorneys and legislators. departmental conferences. many referrals to psychiatrists come from publications. try to become involved in local media such as call-in shows. these publications may be explored. Finally. review. SECOND EDITION List Listings can be effective as well.106 THE PSYCHIATRIST AS EXPERT WITNESS. Beat the Press (2). or established continuing medical education programs. . The APA Public Affairs Office provides some guidance in dealing with the media. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. may be helpful in dealing with the media. the topics of which appear on the screens of attorneys’ computer searches. however. such as clinicians and lawyers. Although it is useful exposure and a valuable resource to write an analysis. no one will show. 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. and media exposure may open you to crank calls. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. but the wounds of experience are probably and ultimately the best teacher. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). One reference. such as hospital grand rounds. and similar humiliations.
and your course as hired gun may be marked. place in the profession. Beware of making or seeming to make extravagant claims for your knowledge. From the absolute onset of your career.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. In fact. training. Even minor. no matter how slight the issue. trivial cases allow you to be observed in action by potential employers. wherein you follow the ancient maxim. Do not bend the truth to satisfy the attorney. It does not matter if the case is trivial or small potatoes. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. as it were—but the Web site is perhaps the most explicit. a point that cannot be overemphasized. Have the site professionally designed with attention to taste. You will derive no income. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. some critical considerations are the following: 1. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. some broker organizations guarantee your opinion. by definition. even at the outset. based on your fine performance at the deposition. including this one. 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. 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. Conservatively stating your incontrovertible credentials (actual appointments. 2. certifica- . No case too small. It may then take you years of work to unblemish your reputation. Begin your career by unspecializing. Be extremely careful about posting your qualifications. skills. and other aggrandizing statements that are. Consider taking on some pro bono work as well. What About Web Sites? In the modern era the use of Web sites has increased for all professions. one turn to the Dark Side of the Force.” This is a losing strategy. extremely public. If you decide to use a Web site. and interest. 3. In the same vein. modesty. widely publicized mass murders. I will work only on high-profile. but you will obtain valuable exposure. integrity must be your watchword.
and effective. choose only those experts whom you would be confident to have on your side if you were being sued for something. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. Sadoff RL. specific required expertise). Remember to thank your referral sources. but no other method is as reliable. Salt Lake City. publications. conflict. Finally.108 THE PSYCHIATRIST AS EXPERT WITNESS. but I will take it upon myself to find somebody good who can. you are also revealing yourself as a good first stop on the search for a good expert. . Dattilio FM. etc. References 1. including attorneys and fellow clinicians. You are saying to the calling attorney. for referrals. Building a practice on word of mouth is slow. but its importance cannot be overstated: return telephone calls promptly. SECOND EDITION tions. sound. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. Guyant A: Beat the Press.” Although you are feeding the competition. Return telephone calls are the easiest marketing device and one of the most effective.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. Additional Pointers The issue may seem trivial. at times trying. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. 2003 Fulton S. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. UT. recall the value of brokering. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. and demanding of patience. “I can’t take this case (because of time. J Psychiatry Law 31:5–19. 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. 2002 2. American Book Business Press. In analogy with clinical referrals.
1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. New York. . out of Falmouth. 1997 Feder HA: Succeeding as an Expert Witness. I disclose that I have lectured for SEAK numerous times over the years. Massachusetts. Glenwood Springs.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide.. Inc. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. Tageh Press. WW Norton. CO.
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this chapter will be too obvious and not relevant to your needs. In this chapter.D. I address some tips and strategies for the expert who is inexperienced in traveling to cases. 111 . This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. William Reid. 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. seasoned travelers may skip the chapter entirely. The author is indebted to Robert I.. 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. Simon. As always.. M. examinations. the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips. or interviews.D.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. and opprobrium. mockery. M.
especially if you have not worn it for a while. Still other guides are provided in the suggested readings at the end of this chapter. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. Some General Recommendations Travel Information Travel guides are available everywhere. and general information can be obtained from books. to ensure that it still fits. matches. Another useful reference is Jet Smart (2). testify or interview the next day. For cases that involve land travel. the process takes even longer. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. on rare occasion. cars. 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. Opt for crushproof fabrics and materials whenever possible. Running shoes also allow you to sprint through airports to . and hotels directly and save you much time and stress on the telephone or online. 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.112 THE PSYCHIATRIST AS EXPERT WITNESS. Consult with significant others for their opinions if needed. especially in flight. These services can book flights. and your colleagues. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. looks professional. stay overnight in a hotel or similar setting. 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. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. you may make the appropriate adjustments. Try on everything before you pack it. and is in good repair. polished shoes for men and women). the Internet. and return that day or the following one. and one pair of shoes. Alternatively. travel agents. 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. the emerging online travel services (Expedia and the like) may prove useful.
is addressed nowhere in the forensic literature).g. for one or two telephone calls per day to the office to check on things. for example.. but not alcoholic beverages. or 2-hour long-distance calls to your paramour. If the trial runs longer than a day or so. a useful principle is to avoid double billing in any form. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. the literature is relatively unhelpful (the issue of double billing. If you review a different case on the way back. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. do not bill for sleep (you do it anyway). Seek equitable division of costs for multiple-case trips. Separate business from personal comfort. you may bill for that time but not for the ticket because the first case paid the whole trip already. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. do not bill separately for that work because you are already being paid a day rate. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. Avoid checking baggage if you can. and for the regular three meals. 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. fortunately. 1 day at your day rate. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. The Ethics of Billing Bill strictly according to your fee agreement. rare but extremely stressful when they do occur. then. for one telephone call to the family. 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. which are. if you are flying to a case and use air travel time to review the case. For example. in-room movies. Until data emerge. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. because some law firms are slow to reimburse hotel and plane expenses). You have enough to worry about . It is possible. massages.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late.
and cleaning. It is definitely a basic principle for assembling your kit. but you may wish to experiment with a friend’s suitcase. with a little applied topology. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. safety pins in various sizes. antacids. you may opt to wear the suit or outfit on the plane and guard it in transit. such as a variety of buttons and threads to match your clothes.114 THE PSYCHIATRIST AS EXPERT WITNESS. A small. it is indispensable to your successful travel ventures. Wear your workout or running shoes on the plane. extra shoelaces. stain-remover sticks that do not contain toxic petrochemicals. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. and creams to quart-size plastic bags. light flashlight for power outages and searching under beds for lost items. eyeglass screwdrivers and replacement screws. and pack the rest of the gear. 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. multifunction “pharmacy” also should be included. Alternatively. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. a small. . These should include sewing items. and string. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. a small roll of duct tape. and rubber bands. Remember also that your kit should contain items that permit repair. In addition. In general. decongestants. Current travel restrictions have shifted the allocation of liquids. The Kit Whether you call it a travel kit. or toiletries case. Other useful miscellaneous items include adhesive bandages of various sizes and types. even under the seat in some cases. lotions. these roll-alongs often fit either in the overhead compartment or. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. What you take should have similar versatility. Dopp kit. remedy. which may also be prepacked. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. makeup bag. do not skimp or economize on the roll-along suitcase. not to mention the current airline custom of charging extra. the principle of multiple function is one of the basics of a dynamic understanding of mental life. and extra combs. extra eyeglasses or contacts if you wear them. In psychoanalytic theory. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. and similar medications.
procedures. in theory. fails). First. If you have a disability. I recommend the hotel or motel for several reasons. experienced travelers can skip this discussion. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. I carry a compact “smoke hood. The latter appears at first glance both socially desirable and economical. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. Seriously consider avoiding airline food entirely. remember to carry light extension cords and voltage adapters. call the airline early to check on facilities. but you can buy your own compact version. This item is available through a number of catalogs. it is more professional to meet with your attorney the night before the . Besides a small flashlight. but some precautions seem sensible. or order special low-fat meals. for you to get out of the toxic smoke and gases to safety. The traveling expert is sometimes torn between staying at a cold. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. testify. institutional hotel or motel and cadging free lodging with friends or relatives in the area. You breathe through a filter that lasts long enough. and special arrangements. Almost all modern hotels in the United States have smoke detectors. try breathing through a moistened towel for short periods. Emergency Items Neurotic fears can certainly flower when you travel. because someone else is paying your way to the location. you are undistracted by social obligations and family strife or background noise. on very dry flights. Drink water steadily to avoid travel dehydration.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. Second. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. fly out. as well as extra disks and the instruction manual if not on the hard drive already. often hooked to a travel alarm clock.” this discussion will be helpful.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. although occasionally. Secrets of Staying If you are unfamiliar with the expert art of “fly in.
Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. A simple but effective method is to soak a washcloth or hand towel in cold water. is to make a beeline to adjust the hotel’s alarm clock or clock radio. you are free to visit friends and family at your own discretion. wring it out thoroughly so that it doesn’t drip. a situation that can leave you hoarse. .M. SECOND EDITION trial in a hotel room or conference room. Don’t forget to set the room thermostat to your accustomed household temperature. and headachy on the stand. 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. 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. after I put down my luggage. It is probably safest to avoid all alcohol during the trip before testimony. Remoisten it as needed. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . Experimenting with culinary exotica is asking for a case of turista at worst. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. congested. obviously you should eat lightly and stick to what is familiar to you. the air is invariably dry in most hotels. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. after all. My first move on entering a hotel room. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. if desired.116 THE PSYCHIATRIST AS EXPERT WITNESS. nausea on the witness stand also may be misinterpreted. Secrets of Eating In traveling to court. After the trial. back up the call with your travel alarm. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. of course. My second move often is to arrange a do-it-yourself humidification of the room. a business trip. Some. If a paper clip or safety pin does not suspend the cloth or towel well. hotels provide irons. 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. an essential part of effective testimony. but not all. this is. have your martini on the airplane home after it is all over. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. Whether the room’s air system is heating in winter or cooling in summer.
you can have a serious meal without ill effect. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. but all the data are not in. including hangovers. When you are up and awake. without aftereffects. 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. What to Take to Court Courthouses are notably lacking in amenities. or others) at bedtime. and similar relaxants. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. the chatter of housekeeping staff just outside your door) is white noise. by using either alcohol or sleeping pills (barbiturates. When possible. or even a different time zone. breathing techniques. also eat lightly. This term refers to sounds containing all frequencies. Far better results accrue from sleep hygiene maneuvers. as noted. usually described in catalogs as “sound soothers. Catalogs sell portable battery-operated white-noise generators. so you may have to carry some supplies in your pocket or purse. actual memory loss can occur—the last thing you need. These have ill effects. Many travelers find it helpful to block out morning sunlight with the drapes. of course. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning.M. I recommend it. stain . and with sleeping pills.” sleep sound machines.. Ordinary AM radio static and the sound of surf are two examples of white noise. benzodiazepines. hot baths. Examples include prescription medications that you need during the course of a long day. or similar terms. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. just as white light contains all color wavelengths. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . either by closing them completely or fastening gaping fabrics with safety pins. spending some time in direct sunlight may be helpful in adjusting your biologic clock. After court. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. plan your trip to allow time for recovery from jet lag.
Although some of the pointers in this chapter probably state the obvious. sample wardrobes and general travel pointers included as well. and a headache remedy for the obvious problem. cough drops. Commons ML. 1994 (An excellent guide to what to take and how to pack it. James E: The Secrets of Simple Packing (VHS videotape).) St. Miller PM: Expert witness billing practices revisited: a pilot study of further data. New York. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. Slater FE. Psychiatric Annals 33:302–306. et al. Ten Speed Press. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. 2001 Simon RI. Jossey-Bass. I welcome your suggestions and favorite travel tips. 1996 . Berkeley. I hope that these tips make your travel easier and less surprising. with the emphasis on safety and security issues. References 1. San Francisco. mints. or throat lozenges. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. 1998 Gutheil TG.: Expert witness travel dilemmas: a pilot study of billing practices.) Savage P: The Safe Travel Book.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. 1988 (Incredibly detailed. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Santa Barbara. Magellan’s International. CA. Flying Cloud Publishing.) Gutheil TG. Revised. Berkeley. or refreshment. CA. 2003 2. Villard. WA. 5. J Am Acad Psychiatry Law 29:202– 206. 3. 4.118 THE PSYCHIATRIST AS EXPERT WITNESS. Seattle. SECOND EDITION removal. Commons ML. Celestial Arts Publishing. CA. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. J Am Acad Psychiatry Law 26:21–26. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses.
the reader. from all evidence. M. to require our services in increasing numbers. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. The Psychiatrist in Court: A Survival Guide. That book may fill in some of the blanks.C H A P T E R 11 Epilogue I HOPE this introduction to the challenging yet always fascinating role of expert witness has been instructive and helpful to you. Although some forces in society. I welcome comments and suggestions from readers to correct.D. the courts will continue. Simon. 119 . if you wish to take your work to the next level. The better we are at meeting the courts’ needs with ethical. including our medical colleagues. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. the more we serve this valuable and necessary function. or render this text more useful. or have taken too much for granted about your background and experience in any portion of this text. expand. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). which I cowrote with Robert I. decry the expert witness function and voice arguments for its abolition. and helpful testimony. If I have made too many assumptions about you. On the other hand. As always. consider first reading the companion volume. effective. consider reviewing the successor volume to this one. (American Psychiatric Publishing 2002).
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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.Appendix 1 Consent Form for Forensic Examination AFTER PROLONGED ambivalence about use of a consent form I have begun to use the form on the following pages. The main points about the form are the use of basic language.. 121 . and the examinee’s attorney’s attestation that the examinee understands the form (i. supplied for consideration. clarification that the forensic examination is not the practice of medicine.e.
I agree to be interviewed. in connection with my legal case. but if I refuse to give an answer or some answers. M. Gutheil may write that down for the record.” or “update” interviews of me by Dr. agree to have an examination by Dr. “follow-up.D. I understand and agree to additional repeat. 2. 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. . Dr. During this interview or interviews I will be asked a number of questions about myself. the following: 1. . Because I am being interviewed in a legal matter. the person who has signed at the bottom of this letter. Thomas Gutheil. most of which will be very personal. 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. 3. 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. and I understand. if needed. Dr. Gutheil. Gutheil’s questions. however. 4. Gutheil”) I. Gutheil will explain or has explained to me and I understand that Dr. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. I agree to give up my rights to have Dr. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. in spoken depositions (where lawyers ask him questions). I also understand that I am not his patient in connection with or because of this interview or interviews. Gutheil keep secret what I tell him. This means that Dr. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. Gutheil. Gutheil will explain or has explained to me. I understand that I can take breaks if I want to at any time during Dr. Gutheil’s written report or out-loud statements for court may help my case. Dr. nor will he suggest any treatments to me or for me. Gutheil will not give me any medical or psychiatric treatment. I understand. and I understand they will be part of the same examination and will follow all the above rules. Gutheil’s interview or interviews. Dr. The examination will be one or more personal interviews. SECOND EDITION Consent for Forensic Examination by Thomas G. (“Dr. and I understand that no one can know which one it will be in advance. I understand and agree that Dr. I understand that Dr. I understand and agree that Dr. Gutheil is a physician and a psychiatrist. Dr. or out loud in open court in a trial.122 THE PSYCHIATRIST AS EXPERT WITNESS. hurt my case.
that individual is. Gutheil’s retaining attorney. I certify that I have answered any questions my client asked about the procedure. he/she appears competent to understand it. Signed. a court officer. free to show it to me. 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. Dr. to my assessment. Attorney for examinee Print name Date day of .Appendix 1: Consent Form for Forensic Examination 123 5. 20 . of course.
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D. Gutheil. M. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. the radical revision presented here has evolved from that in the first edition for the same reasons. $ for depositions. rescheduling is at mutual convenience. (d) 125 . in addition. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. and $ per hour for trial. including portal-to-portal local travel (c).Appendix 2 Standard Fee Agreement THE EXAMPLE of a standard fee agreement that follows is annotated by lowercase letters in parentheses (annotations are explained at the end of the text for this agreement). (“Dr. Gutheil shall be reimbursed for all time spent on the case. Dr. and the same due for cancellations that occur less than 72 hours in advance. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. at a rate of $ per hour plus expenses. Gutheil”) 1. Standard Letter of Agreement by Thomas G. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer.
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). please return one copy to Dr. Gutheil by name (h). materials. 5. (s) Note: Please send all case materials to (address) Date . Before such travel is undertaken. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. made out to Dr. is the sole responsibility of the retaining attorney or insurer (i). The retaining attorney understands that my forensic work is not the practice of medicine. 4. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. Failure to comply may void this agreement except for duties of confidentiality (l). 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). Dr. Gutheil will be unavailable for testimony in person during the month of August (f ). Dr. prorated (k). Overdue accounts may accrue interest at 6% per annum.126 THE PSYCHIATRIST AS EXPERT WITNESS. A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. For out-of-state evaluations or testimony. Signed. For out-of-state travel. as an advance against which expenses are billed (p). Payment in a timely (g) manner. irrespective of case outcome (j) or defaulted appearances. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). and as a condition for its specific to this travel is exbeing undertaken. including travel by first-class conveyance and appropriate lodging if needed. Please note that because of vacation scheduling. a retainer of $ pected 3 business days in advance. Gutheil’s FID# is . 3. Gutheil. SECOND EDITION per day 2. The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. and examinations as discovery rules permit. any existing balance shall also have been paid 3 business days before departure (e). Signature below indicates agreement with all (r) these terms. (q) 6.
c. will throw up their hands in mock exasperation and say. f. To cut through nit-picking. this clause makes that explicit.” 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.” d. or a member of a corporation or group practice. If you know when your vacation is. or trial travel. that this is a formal contract. or trial. Some experts charge differing rates. n. for review. it saves everyone time and heartache if you spell it out. deposition. deposition. dunned for appropriately earned fees. “You’re right. “portal-to-portal. Doc. k. m. You have the right to request timely payment to prevent excessive backbalance buildup. others the same. thus. l. Working for the client. that does not mean you should not be paid for the work already done. can constitute a bias. moreover. based on their training.Appendix 2: Standard Fee Agreement 127 Annotations a. “Consideration” and “agreeing” are trigger words that signal to attorneys. the “clock” starts when you leave your home or office for court and stops when you return to office or home. as it ethically should be. attorneys are sometimes slow to reimburse travel expenses for interview. . Your fee is. If the retaining party is relentlessly slow. take a videotaped deposition. this statement makes the attorney agree to that possibility. Every agreement must have an exit clause such as this one. e. g. Because you will be investing a fair amount in the travel costs. I recommend asking for this secondary retainer before travel. A case decision that goes against the side retaining you is not grounds for nonpayment. 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. You must be free to withdraw from the case if the contract is breached. This is a standard rate of interest on overdue accounts and an incentive for timely payment. 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). i. b. Some attorneys. h. j. make that clear so that you don’t waste a lot of time swapping checks between payees. you may decide to withdraw. If you are the sole proprietor. You are initially retained as a consultant. If you do withdraw. or even retain another expert. noncontingent. For unexplained reasons.
On rare occasions. some experts simply submit additional invoices. if the attorney is out of the country. The wording here. Such attorneys may pay the retainer. Moreover. and ethical incompatibilities. r. alas. Making the retainer nonrefundable tends to eliminate such shenanigans. give you no work to do. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. has handed the case to another attorney. . because you did no work. When this retainer is depleted. attorneys may attempt to tie up (legally bind) an expert by retaining him or her on paper to prevent the other side from consulting him or her. or has left the firm.128 THE PSYCHIATRIST AS EXPERT WITNESS. making you ineligible for participation with the other side. legal. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. The retainer is not only a means of establishing the contract but also an actual advance against expenses. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. these events do not weaken the contractual ties with the firm. after settling the case. parallel with the forensic consent form in Appendix 1. You are here agreeing to accept signature from a different attorney or a paralegal. others ask for a second retainer (see also Appendix 3 in this volume). s. at no cost to the attorney but at lost time and possible income to you. ask for their retainer back. and. q. You have been sandbagged. for example. SECOND EDITION o. p. identifies the attorney’s understanding that this is not the case. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical.
I may require an additional retainer. consultation with counsel. Any credit balance remaining will be refunded upon the termination of my services.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. Thereafter. 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.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. LARRY H. 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. and report preparation. This retainer will constitute a credit balance until exhausted. STRASBURGER. psychiatric interview or evaluation. interviews with family members or other persons. if it appears that substantial services are yet to be rendered. M. If travel from my office is necessary to perform any of these services. review of records. the hourly 129 .
American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . I will send you a monthly statement. postage. Time spent in preparing for testimony shall be billed at the hourly rate specified above. Larry H. etc. expert or otherwise. Diplomate. court rule. no refund of the retainer deposit will be made. setting forth the nature of the services rendered since the prior billing. long-distance telephone calls.130 THE PSYCHIATRIST AS EXPERT WITNESS. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. photocopying. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. All travel shall be by first-class conveyance. Any excess over the retainer balance is due upon receipt. M. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. messenger services. the retainer discussed above. American Board of Psychiatry and Neurology Diplomate. as prescribed by statute. If the foregoing fee basis meets with your approval. Nor shall such failure relieve your obligation to have on deposit. prior to my testimony. SECOND EDITION rates will apply to portal-to-portal travel time. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. 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). and all travel expenses will be reimbursed. 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. Strasburger. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. literature research. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Sincerely. court order. Please keep a copy of this letter for your records. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. along with a listing of out-of-pocket expenses.D. including secretarial service. please so indicate by signing this letter and returning it to me with your check for the retainer.
Falmouth. Inevitably. South Bend. These sources are meant to supplement those provided at the ends of the chapters in this book. provide at least some information useful for the psychiatric expert. 2008 Ball D: Theater Tips and Strategies for Jury Trials. Mangraviti JJ: How to Become a Dangerous Expert Witness. SEAK. Falmouth. 1997 Babitsky S. 2002 131 . Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. MA. 2003 Babitsky S. SEAK. 2005 Babitsky S. MA. not just psychiatry. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. All. 2002 Babitsky S. MA. SEAK. Am J Psychiatry 159:1819–1825.) Binder RL: Liability for the psychiatric expert witness. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. this has many useful tips on trial demeanor and related issues. MA. The Psychiatrist in Court: A Survival Guide. Falmouth. SEAK. MA. SEAK. Falmouth. Falmouth. National Institute for Trial Advocacy.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. as well as those found in the companion volume. however. IN. 1997 (Though aimed at attorneys. MA. their quality is variable. SEAK. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. Babitsky S. Falmouth. 2007 Babitsky S.
1991 Clifford RC: Qualifying and Attacking Expert Witnesses. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 3rd Edition. MA.) Gutheil TG. Guilford Press. Mulligan WG. PA. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2nd Edition. useful for checking credentials. 2002 (This is designed as the successor book to the present one. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Washington. New York. 1993 Dattilio FM. 2008 Rogers R. American Psychiatric Publishing. Commons ML. J Am Acad Psychiatry Law 29:313–318. 1993 Gutheil TG. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. PA. Horsham. Edited by Jackson R. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. James Publishing. Washington. Wiley Law. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. McClure Company. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. CO. DC.) Gutheil TG. Covise LL. 2006 Feder HA: Succeeding as an Expert Witness. Adams KM. 1908 (Purely for antiquarians and those interested in a classic from the last century. 2001 Isele WP: Under Oath: Tips for Testifying. Springer. at a more advanced level. et al: Expert Witnesses: Direct and Cross Examination. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. LRP Publications. Routledge/Taylor & Francis. pp 565– 588 McHale MJ. DC. Analytic Press. 2007. Pennsylvania Bar Institute. Mechanicsburg. Diamond. Danvers. New York. 2003 . Lippincott. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. New York. Baltimore. New York. Hillsdale. Santa Ana.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Tageh Press. American Psychological Association. Glenwood Springs. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. MD. NJ. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. CA.) Dattilio FM. J Am Acad Psychiatry Law 34:482–491. in Learning Forensic Assessment. New York. 1994 Rabinoff MA. New York. 2007 (Focuses specifically on the testimony phase of expert work. 1995 Kwartner PP. Williams & Wilkins. LRP Publications. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias.132 THE PSYCHIATRIST AS EXPERT WITNESS. Simon RI. Oxford University Press.
http://forensic-psych. American Psychiatric Press. Anderson RM: Mastering Expert Testimony.html: Another multiple resource site. NJ. DC. J Am Acad Psychiatry Law 35:346–349. Falmouth. American Psychiatric Press. American Bar Association. http://www. 1976 Zobel HB. the national forensic psychiatric organization. New York. American Psychiatric Press.com: A resource-rich site with articles. Washington. http://www. Washington. Erlbaum. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation.com: A host of resources by two top attorneys. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. 2003 Simon RI. 1993 Other Media http://www. 2nd Edition. A compendium of sources.com/forensic/f_psych. Gaynor Publishing. VA. Shuman D: Clinical Manual of Psychiatry and Law. MD. with multiple resources.) Simon RI. Beth Israel-Deaconess Medical Center. WW Norton.aapl. Disclosure: This author is a founder. Section of Litigation. articles. Rons SN: Doctors and the Law: Defendants and Expert Witnesses.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. New York. Kochansky J: The Complete Psychiatric Examination (videotape).org: The main Web site for the American Academy of Psychiatry and the Law. Lightfoot. 2001 .org: Web site of the Program in Psychiatry and the Law. and links. Washington. 2007 Tsushima WT. All experts should join. DC. Wiley. and postings. Harvard Medical School. links.SEAK.com: Web site of author’s colleague HJ Bursztajn. http://tncrimlaw. publishing a vast range of information and offering excellent training courses. DC. Mahwah. discussions. SEAK. http://pipatl. 2004 (Study guide available since 2006. DC. MA. Washington. 1997 Younger I: The Art of Cross Examination. and links.reidpsychiatry. Gutheil TG. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry.
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it is usually “court-tested. Boilerplate Standardized legal language. the practical and relevant definitions are provided. 135 . in the context of discovery.e. the person who committed suicide is the “plaintiff’s decedent. the criteria for competence to make a will and for competence to stand trial are quite different.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. Decedent The person related to the case who has died. for example. such as relatives or executors. there is no generic “competence. In reality the actual deposition is the transcript of the deposition. consult your retaining attorney. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. interview data. the plaintiff is the (live) person bringing the suit. it may consist of records and documents. Instead.” Deposition Usually believed to be the actual ceremony. on mainframes) and may be used in attempts to impeach the expert at trial. in which the witness. and so on. it has been accepted in actual cases that validate its use. lab results. In case of ambiguity. which will live on in perpetuity (i.” it is always “competence for what?” The criteria for the different competencies are often distinct. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness.” that is. Competence is decision-specific and usually based on criteria. or tradition. that is simply plugged in to the appropriate place. It is not derived from the facts of the specific case at hand. case law. usually derived from statutes. two or more lawyers. Thus in a suicide malpractice case. Competence The capacity or ability to deal with a certain task.. legal documents such as depositions and interrogatories.
but a psychiatrist. since the goal of the process appears actually to be a decision. and other medical contexts not limited to psychiatry. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. investigating in the field for the court to determine the situation leading to the proceeding (e. usually exchanged between opposing attorneys to alert them to your projected opinion..g. disability. the fetus in an abortion decision). less ordinary procedures might include covert surveillance of a suspected malingerer. The role may include representing an unrepresented party (e. borrowed from western and noir fiction and film.g.. Finding See “Opinion. this limitation constrains the data gathering and the conclusions that may be drawn from the database. The IME may be resisted by some attorneys. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. says what the attorney wants said rather than objective truth). An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. Fact finder Practically speaking. “Hired gun” A term. use of a private investigator to obtain information. to visit a nursing home where resides a person whose competence is being challenged) and other duties. See also “Trial by ambush. the judge(s) and/or jury. but this is the established term. after the civil or criminal matter is set in motion. and various motions accomplish some of this phase.136 THE PSYCHIATRIST AS EXPERT WITNESS.. thus decision maker rather than fact finder.e.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. The GAL may be thought of as a kind of utility infielder for the court. in which information is gathered by the attorneys in order to prepare the case. interrogatories. Depositions.” Discovery That early phase of litigation. may be used as well. Novice experts see this as a misnomer. in “trial by ambush” jurisdictions this step is skipped. if so. The GAL is usually an attorney. and the like. challenging the party moving for a particular result. . IME (independent medical examination) An important part of the discovery process in malpractice. or an attorney-psychiatrist team.
the whole truth. and let the chips fall where they may. and widely misunderstood by many of those. Of course. elaborate dinners and entertainments. when confusion sets in.” Nonsexual seduction A metaphoric term for various ways in which a retaining (or would-be retaining) attorney attempts to woo (influence) an expert to see the case from that attorney’s viewpoint. There are several . its influence should be resisted by the expert. and nothing but the truth. In addition. but without actually retaining. the whole truth is often supplanted by “the admissible truth. governed by legal criteria that vary by jurisdiction. the court makes the finding that defines the outcome of the case. Opinion The final phase. falling below the standard of care in the care rendered in the instant case. the expert. these are prepared jointly by attorney and expert. the oath is a place of safety to which. the “bottom line. Negligence In a medicolegal context.” In practical terms. experts should review these carefully for accuracy as to their opinions. sometimes without even informing. the expert can retreat when in doubt about what is going on or where the inquiry is going. In a practical sense. tell the narrow truth. See also “Standard of care. The expert offers an opinion derived from the database and training and experience. Like other sources of bias.Glossary 137 Insanity The legal concept whereby a person who did an otherwise criminal act is yet nonculpable because of criteria-specific impairments caused by mental illness or organicity. 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.” of the expert’s efforts. because variations from these answers at trial will be used actively in attempted impeachment. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. retreat to the oath. promises of much future work if the opinion in the present case is favorable. and the like. Interrogatories A set of formal. One of the most challenging assessments in all of forensic psychiatry. disliked by almost all parties in a case as well as the general public. “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. the witnesses are to testify in court only with testimony that they can swear to. the insanity evaluation is retrospective. The “seduction” may involve flattery.
particularly experts. “get the money up front. 2001: “The Phantom Expert. but they cannot by themselves reform the exploitative personality. hearings. the origin of the frequently invoked mantra. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department.” “reasonable medical (or psychological) probability. and the like.” “51% certainty. SECOND EDITION variations on this ploy. the standard is usually national but may be local—the “locality rule. it varies by jurisdiction but the official statutory language is something like this: “The standard of care is that care delivered by the average competent (prudent) practitioner of the same specialty under like circumstances and according to the practice at the time of the events in question.” and so on. Several jurisdictional variants include “more likely than not. See Gutheil et al. to prevent the experts from hearing other testimony. administrative law procedures. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. Appendix 4. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. by excluding them from the courtroom.” An expert testifying about a case must be familiar with the relevant standard. privilege is narrowly construed as applying in legal or quasi-legal contexts only.” which the expert must also know. a few find ways not to pay you what they owe. Unlike confidentiality. The expert should be familiar with the relevant local standard and its definition.” “reasonable psychological certainty. . 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.138 THE PSYCHIATRIST AS EXPERT WITNESS. Pro bono Short for pro bono publico (for the public’s good). Sequester The separation of witnesses. which broadly applies to information that should not be shared with others in many contexts.” Though most attorneys are responsible. thus an attorney or an expert might perform a relevant duty for free. this term usually refers to service without payment.” in suggested readings.
Ultimate issue The final outcome of the legal process: negligent. after review. and expert disclosures (see “Disclosure”) inform the other side in advance. Among other goals such as saving time. “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. (See also “Opinion. a blow that would ordinarily not be expected to cause harm. The expert has control only over those accepted or rejected. are sometimes referred to as “third-party cases. these cases. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. discovery proceedings such as interrogatories. which involve a victim in addition to the treater and patient. Turndown rate The ratio of cases that are. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. The expert proffers an opinion. This rate should be seen as a rough guide.Glossary 139 Stipulate To concede or agree to a challenged issue. but the plaintiff has a thin or “eggshell” skull and is severely injured. Because the usual duty of clinicians is to the patient alone. In the majority of situations. etc.” Jurisdictions vary widely as to the applicability of this principle. accepted as meritorious versus those rejected as invalid.” or “duty to warn third-party cases. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. such as whether a witness should be accepted as an expert for the court. not as a valid method of determining one’s standards of acceptance.” Experts should refrain from stating the ultimate issue in their testimony. The image is that of a defendant giving a trivial blow to the head of the plaintiff. insane. depositions. usually based on criteria. but the fact finder renders the finding that embodies the “ultimate issue. Tarasoff v. 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 defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. not those that come in for review. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. competent. guilty.”) .
“The Problem of Evasive Testimony” in Suggested Readings. See Gutheil 2007. to say” but more relevantly. discursive. work product occupies a special category of privilege and is usually not discoverable. Chapter 4 (reference 11). literally “to see. in the present context. This may apply to certain communications between expert and retaining attorney. Work product A designation of privacy for material that is part of the attorney’s trial strategy. the purpose is to allow preparation of cross-examination or rebuttal. a subexamination before or during the trial in which the opposing side attempts to get a sense of what the expert plans to give as testimony. There are a number of possible causes. Waffling An expert’s rambling.140 THE PSYCHIATRIST AS EXPERT WITNESS. . evasive testimony designed to avoid answering a question directly or at all. SECOND EDITION Voir dire An expression from the French.
4. 59–60 Advances minimum fee. 4–5. 62 needed for forensic functioning. 68–69 Attire at trial. 37 Alterations ethical. 105–106 loyalty to retaining attorney.” 106 Audiotaped interviews. 35 Background of expert. ethical model. consulting with retaining attorney during. 82–83 Announcement of forensic practice. 74. 77 Bias. 44. 4. 63 Blackboard illustrations at trial. 78. 70 “Attorneys’ Guide to Experts. 25 Beat the Press (Fulton and Guyant). 19 hindsight bias. 24–29 social relationships with. 7. 74 Accuracy. 68 honesty of. 87–88 Admissions. 16–18. 30–32 misunderstanding of clinical issues. 106 Beepers at trial. 105–106 Analogies and metaphors. 112 first class. 61 retainers. 26–28. 100–101 Alternative scenarios. apparent. 3–4 Advertising. 105–106 American Board of Forensic Examiners. 47–48 depositions. 23–24 Air travel. See also Demeanor 141 . 115 meals. 16 treater bias. 9 nonsexual seduction. xiii. 60 Addressing judge at end of testimony. 82 negotiations with retaining attorney. 116 Alcoholic beverages. 115 courtroom. 16 work product privilege. 8. See Clothing.Index Accessibility airplanes. 37–38 Ambivalence. 104 Advocate for truth. 113 Bipolar disorder. 45. See Ethics informing of availability as forensic expert. 105 Assumptions. 52. 117 “Alibi” issues. 82 of reports. 65 fighting at depositions. 15 Agency relationship. 100 of expert opinion. 52. 49. 115 airline guides. 115 Alarm clocks. Dress and appearance Attorneys communication with opposing attorneys. 16 meeting with before deposition. 32. 121 American Academy of Psychiatry and the Law (AAPL). 4–5. 70 merit of retaining attorney. 80 Body language. 18 Billable time. 106 American Psychiatric Association (APA). use of. 17 problems of loyalty and identification. 49. 14 Adversarial context.
65. 66 Concessions at depositions. 82 Breaks and recesses depositions. 7–8.142 THE PSYCHIATRIST AS EXPERT WITNESS. 77. 28 Correction of answers at depositions. letters to. 118 Criminal cases capital cases. 85–86 Brokerage organizations for expert witnesses. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 23 Clinical material. 81 Communication with opposing attorneys. 30 Causation. 108 Browbeating by retaining attorneys. 74 Code language between attorney and expert. 29–40 documents. 86–87 Cross-examination. 116–117 metal detectors at. review of. 16. 73–79. 77 unpacking at hotel. See Attorneys Countertransference. 30–32 “nothing to go on” problem. 64–65 Cough drops or throat lozenges at trial. 30 validity of case. 99–100 Consent Form for Forensic Examination. 14 Carry-on luggage. 48–49 involving the insanity defense. 4 Class action cases. 33–34 threshold question. 121–123 Constraints on time. 77 Change of opinion. 13–14. 97 Case review. 101–102 Crises while testifying at trial. 44 nonconfidentiality warnings. SECOND EDITION Complaint. 58–59 avoidance by attorney. 39–40 Cellular telephones. 81 delaying tactics. 62. 82 Clothing packing for travel. or data. 116 Coaching. 17. 82 Child abuse issues. 69 Concentration at depositions. 95 Court reporters. 107 Brokering a case when unable to handle it personally. 32. 99. 83 breaks and recesses during. 14 criminal responsibility cases. 18–19. 19 Capital criminal cases. 71 Candor. 33 The court. example of outline. 83 Courtrooms. or experts. litigants. 25 Conflicting stories from parties in case. 40 Child custody cases. 118 Counsel. 5. 24. xiii. 4. 135 . 103–108 Camera. questions about. 113–114 Case name or citation in written report. 34 Compound questions at depositions. 137 report. 48–49. 34 misunderstood by attorney. 38 Conflict of interest. 33 scheduling. 61. 28–29 Contingent fees. 100 Consultation services. 33–34 merit of attorney. 32 Building a practice. how to handle in written reports. 65–66 Confidentiality breaches as basis for suit. 85–86 code language between attorney and expert. 86 Borderline personality disorder (BPD). See also Video depositions gazing into the lens. legal. money. 59–60. 113–115 trial appearance. 70–71. 47–48 Competence issues. 61 trial.
64–65 curious questions. 79–80 restructuring. 97–98 Daubert challenge. 58–60 inappropriate questions. 68 treatises. Records leaving behind after trial. 62–63 reviewing. See also Confidentiality. 59 past. 64 language/word choice. 80–82 leading questions. 65–66 consulting with retaining attorney during. 117 Drugs. 63 goals of expert being deposed. 135. 83–86 “yes” or “no” questions. 114 . 47 nonverbal responses. 91–92 privileged information. 5–6. 69–70 videotaping of. 113–115 trial. 66 concessions. 61 compound questions or answers. 74 Disclosure issues. 68 final preparation. vast amounts of now stored online. 61. 69 Direct examination. 59 limits of expertise. 116 Drinking. 64. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). over-the-counter. See also Interviews. 29 Defendant. 135 admissions in. 66–67 143 interruptions. 113 Dress and appearance packing for travel. Reports. 77–79 Departure from courtroom. 4–5. 135. 87–88 Depositions. 85 reasons for. See also Depositions interrogatories. 34. See Parties in case Demeanor cross-examination. 83 trial. 66–67 locking in/limiting expert’s testimony. 34 assessing. 62–63 concentration during. 84 pauses before answering. 64 objections. 65 correction of answer. 68–69 breaks and recesses during. 85 Dangerous examinees. 88 trial preparation. 64–65 later evidence affecting opinion given at deposition. 73 use during trial. Written documentation Doing no harm. 85 quotes. 76–77 written documentation to give listing of. 34 stenographers in. 68 of experts at trial. 66–67 demeanor of deponent expert. 80–82 of examinees during interviews. 75 Decision to take case. See Records. 64 priority. See Privilege Documents. 57–72. 77 unpacking at hotel. 57–58 nondiscoverable material. 26 pauses before answering. 60 malpractice suits. 59–60. 64 opinions and their bases. 31 Database. 115 access to courtroom. 58–70. 38 of experts at depositions. questions about. 92 Disabled individuals access to airplanes. Privilege Discovery. 135. 8 Double billing. 59–60 assumptions. 68 fighting by attorneys at. review of. 70 “gerrymandering” clinical data. 58–60 goals of opposing attorney. 65 questions and answers.Index demeanor during.
49–50 Employment relationship. 25 Honest advocate. 112–113. 62 Hired guns. 80 Fabrics. 8 Hearsay. scholars in. See also Conflict of interest advocate for truth model. or experts. 50–51 interviews. 15 remaining neutral. sample. deposition and trial.144 THE PSYCHIATRIST AS EXPERT WITNESS. 125–128 travel costs. 1–3 Experts honesty of. 38 “nothing to go on” problem. sample. See also Hired guns definition. 15 loyalty to retaining attorney. 115–116 Humility factor. 14–15 Etiquette at trial. 32 Good writing. doing none. 129–130 standard fee agreement. 16 marketing a forensic practice. staying with. 44 . 18–19 honest advocate model. 16 turndown rates. 115 Flip charts at trial. 15 social relationships with attorneys. issuing. 28. 49–51 examples. 78 Global requests. of sexual misconduct. 28. 13–14. 75–79. See also Ethics of attorneys. 47–48 cross-examination. See Meals Emotional injury cases. SECOND EDITION Family or friends. 95–96. See Countertransference Forensic practice. 28. 9 Humor. 25 External consistency of story. 6 High-profile cases. See Fees. importance. 25 Flashlight. 80 Flying. 75 Ethics. Reimbursement for travel Expert witnesses. 7–8. See also Written documentation Forensics. sample. 82 nonconfidentiality warnings. 61. always soliciting. 129–130 standard fee agreement. principles of. See Meals Forensic countertransference. See Air travel Food. 136 spotting the other side’s. 15 altering reports. ethical model. 30–32 of experts. 103–108 Forensic reports. for travel. 107 new facts at trial. 112 Failure of retaining attorney to pay fee. 13–21. 60 False allegations. 113 contact with opposing attorneys. 36 “False memory” cases. 52–55 History of expert. 1 functions. principles of. 113 Fitness as expert. 82 Hotels. 100–101 billing. 115 Feedback. 61. 44. 33 oaths. 2 Forms detailed fee agreement. 67 marketing. 51–52 Hindsight bias. 67 Expenses. 5. 38. 26–28 detailed fee agreement. 87–88 Evidence. sample. xiii–xiv evidence in. 24 Entrance of judge. 15 Honesty. 125–128 Gestures at trial. 28 Fairness. 6. litigants. 17 special expertise of. 78 Eating. 28. 88 Fees. 37 Eye contact at trial. 96 Harm.
107 lecturing. 115 during trial. 49. 16. 75 informing of availability as forensic expert. 37 interference. 34 depositions. 37–38 criminal responsibility cases. level of scrutiny. 38 emotional injury cases. 34 . 7 Listings as a marketing tool. 39 Interviews. 34–35 plaintiff. 18–19. 107 Interference of attorneys during interviews. 45 Juries. 98 145 Laptops. 137 Intervening causes. 48–49. 40 videotaping or recording. 115 Lawyers. 84 Leaving courtroom. 87–88 dismissal by. 82 Jet Smart (Fairchild). 53. 47 elements of malpractice. 99. 6–7. 46–48 social service history. 37. 105 ethics. See Attorneys Leading questions on crossexamination. 36 Internal consistency of story. 57–58. for travel. 75 respect for. 35 Involuntary gestures at trial. See Hotels Loyalty to retaining attorney. 79. 106 publishing/writing. 83 testimony before. 52 Malpractice suits. 95 Likelihood principle. 36 nonconfidentiality warnings. 112 Judges addressing. 137 Insurance challenges. 6 entrance of. 86 Malingering. 91–92 recording. 112 Meals airplane food. 78 Jargon. 43–48 creating timelines for. 103–108 announcement of practice. 49 demeanor of examinee. 35 priority. 34–38 “alibi” issues. 138 Marketing a forensic practice. 105 Judgment. 51–52 Medical records. 45 records. 35 order of. 16 Insanity defense in criminal cases. 79–80 Jurisdiction-specific language. 45–46. 106 listings. 38 note taking. suspending. importance of. 36 Interrogatories. 106 Letters to attorneys. 87–88 Lecturing as marketing tool. review of. 116–117 Media coverage and cases. 35 retention of records. 34–35 plausibility of case. 45 Lodgings. 106 Locality rules for standard of care. 37 alternative scenario. 36 internal consistency of story. 119 Materials. 2 entrance. 107 strategies.Index Identification with retaining attorney. 49–50 external consistency of story. pros and cons. 45 locality rules. 36 presence of attorney. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 106 specialization. 86. 18 Integrity. 97 to the court. 47 standard of care.
82. 77 Personal injury cases. 114. 82 interrogatories. 8 Pens and pencils at trial. questions of. 24–29 background of expert. 100–101 Posttraumatic stress disorder. 25 initial contact. 24 decision to take case. 91–92 Privilege. 64 interrogatories. 57–58 trial. 49–51 Practice pointers. while traveling. 80 Misunderstanding of clinical issues by attorney. 86 Nonconfidentiality warnings. 30 Occasions. 117 Metal detectors at courthouses. 65 work product privilege. 65. 91–93 Precautions. 14. 4–5. 97 communication with opposing party. 137 Negotiations with retaining attorney. use of. effect of. 25–26 Priorities. 24–25 timing and scheduling. 39 vulnerability of plaintiff (“thin skull”). 88 The Packing Book (Gilford). 57–58 Objectivity. SECOND EDITION Online. 104. 54. 40. 67 National Forensic Center. 81 Postreport negotiations. 26 Opposing attorney. 68 Pauses before answering cross-examination. 24 request of retaining attorney. 49–51 Morality. 36 Politeness. 47 during interviews. 82–83 Microphone use at trial. 26–28 fitness as expert. 47–48 plaintiff interviews. See Trial preparation Prescription medications. unfailing. 113–115 Parties in case case name or citation in written report. 74. 137 depositions. 82 Mitigation of damages. 58–60 Opposing expert witnesses. 85 depositions. 106 Negligence. See also Web sites storage of past depositions. 112 Packing for travel. 77 keeping notes. writing for. 38 Nonsexual seduction. 16. 26–28 Networking. 115 Preexisting illnesses or conditions. 16–18 clinical and forensic issues. 34–35 Patience. 118 Metaphors and analogies. 97 Preparation for trial. 70 Medication issues as basis for suit. 64 Peer review for testimony. 69 Plaintiff. 29 fees. 15. 117 Pretrial conferences. 45. 5. See also Confidentiality deposition. See Emotional injury cases Physicians’ Desk Reference (PDR). 35. 25 bias. 52–55 contact with. See also Marketing a forensic practice New facts at trial. goals of. 15 Objections depositions. 97 . consulting with retaining attorney at. 13–14. 47–48 Outcome of case. 50 Preliminary reports. 138. 74 Prior testimony by expert.146 THE PSYCHIATRIST AS EXPERT WITNESS. 137 Note taking importance of. See Parties in case Plausibility of case. 66. 44 Melatonin. 17–18. not compromising. 71 Oaths.
5–6. 108 written documentation. traveling with. See Oaths . 106 Psychiatric malpractice suits. 68 Storytelling. 26–28. 6 Scheduling issues. nonsexual. 131–133 travel books. 16 Social service history. 112–113 Santayana. level of scrutiny. 108 Roles of expert. 47 Referrals. 92. negotiations with. 115 Rental cars. 6 Specialization. See Breaks and recesses Recorded interviews. George. 15. 82 Silent treatment. 97 Rehearsing testimony. 113 Relatives. 3. xiv. showing toward juries. 24 Publications by expert. 14 147 Retaining attorney. 54. power of. 7. 25–26 as marketing tool. 6. 93 Seating at trial. 107 Standard of care. 138 of witnesses. 49 database of. 112 Reality-testing.. 54 Resources for suggested readings. 73–74. 75 Sexual misconduct cases. 9. See also Written documentation Reputation of expert. See also Court reporters in depositions. 31–32. maintaining appropriate. 117 Social relationships with attorneys. staying with. See also Packing for travel Supplementary reports. 106 Publicity and cases. 40 social service histories. 79 Stenographers. 70 Skepticism. 40 case review. 91–93 personal conflicts. 44. review of. 35 Records. Robert I. 85 Readings. 34 malpractice cases. 112 Reports. 46–48 medical records. 3 Suicide malpractice cases. 25 Reasonable medical certainty. 49 Sequestration. 83 Retainer. 138 Professional meetings. 66 Simon.Index Pro bono work. 36. 25 Required action. 33. 51–52 Quoted passages. 74 Reimbursement for travel. importance of. 138 Standard of proof. 47 Socratic method. 81 Sworn statements. 53. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 97–98 Supporting data for written reports. 100 Recesses. 9. response to. 38–39. 131–133 travel books. reasonable medical certainty. 138 Rebuttals. obtaining in advance. 79. 64. 95–102. 17–18 Self-serving behavior. 33–34 CATO model for. 104–106. 99 Surprised expert. 6–7. See Negotiations with retaining attorney Retention of records. 113–114. 107. 119 Site visits. See also Malpractice suits Suitcases. 18. 75–76 Seduction. 34 retention of. 112 Respect. 43–45. suggested. 82. 45–46. 28–29 Running shoes. review of. 7. 48 Sleeping. 40 Returning calls. 46 criminal responsibility cases.
marker board. 73–90 beepers/cellular telephones. 69–70 Treatment recommendations. 80 language/word choice. 51 evaluating. 74 presentation. 116 Treater.148 THE PSYCHIATRIST AS EXPERT WITNESS. 77. or flip chart. 86. 77 courtroom. 28–29 Third-party cases. 25–26 roles of expert. 77 what to bring into court. 112 Travel expenses. See also Ethics. 112 unpacking. 116–117 microphone use. 76–77 water. 74 rehearsing. 139 Type of practice expert has. 55. 8–9 Treatises. 74 using database during. 43–56 criminal responsibility cases. 118 crises while testifying. effect of. See Crossexamination demeanor at. 82. 112 Traveling. 60. 74 planning. 115 lodgings. 35 keeping track of. 74. 14–15. 113 Travel service. 85. 115–116 meals. 64 for interviews. 80 pretrial conferences. 113 examinees. 79–80. 44 Throat lozenges or cough drops at trial. Honesty Turning down cases. 82. 61. 49–51 Tarasoff-type cases. 117–118 Trial preparation. 80. 77 etiquette at. 75–76 supplies. versus expert. See Meals packing. 74 pitfalls. 77 breaks and recesses during. 139 Taxicabs. 73–74 practice sessions. 77. 86 cellular telephones. 111–118 billing. 19. 86–87 cross-examination. 73–74 language/word choice. importance of. 37–38 Trial. 74 Truth telling. 108 wake-up calls. effect on standard of care. See also Cross-examination prior testimony by expert. 77 pointers. bringing into. SECOND EDITION cough drops or throat lozenges. 26–28 travel time. questions about. 76–77. 75–79. 74 Teaching role. 78 illustrations. blackboard. 92. 81–82 priority. 116 Testimony at trial. 112–113 travel information. 77–79 departure from courtroom. 48–49 emotional injury cases. 8. 117 time planning. 117–118 testimony. 82–83 lunch during. 45–46 Types of cases. 80 humor. 112–115 sleeping. 87–88 dress and appearance. 80 new facts coming to light. 34 for depositions. 74. 87–88 eye contact. 39–40 Travel books. 118 Time creating timelines. 13. 78–80 Telephones calls during trial breaks. 112 Traumas. 85–86 conclusion of questioning. 86 pens and pencils. 91–92 seating at. 44. 77 returning calls. 35 flying. 87 . 79–80 timing and scheduling tips.
96 rebuttals. See also Records. 43–48 “Ultimate ethical test. 140 examples of.” 2. 100 criminal case. 70–71 Videotaped interviews. 100–101 trial preparation. 99 . 74 Voltaire. 116 Water during air flights. 7 Waffling in answers. 79. 97 supplementary reports. 98–99 postreport negotiations. 117 Word choice depositions. how to handle. 97–98 headings. questions of. 99–100 constraints on time. 100–101 preliminary report. or data. 139 Understanding of clinical issues. 82 Values. 108 Work product privilege. 64–65 reports. example of outline. 97 conclusion. 104–105. 67 Video depositions. 97 opinion. 115 in courtroom during trial. 70. 53–54 Wake-up calls. 98–99 conflicting stories from parties in case. money. 97 principles of good writing. 44 White noise.Index high-profile cases.” 18–19 “Ultimate issue. 97 occasions. 74. 100 referrals. 95–102. 82–83 149 Word-of-mouth referrals. 77 Web sites. misunderstanding by attorney. 140 Written documentation. 51–52 psychiatric malpractice cases. 35 Visual aids. Reports case name or citation. 4–5. 101–102 database listing. 107 Weight to be given to on-site psychiatrist’s observations. 97–98 jurisdiction-specific language. 97–98 supporting data. 97 interviews/items reviewed. 98 letters to attorneys.