Expert Witness | Psychiatry | Expert

The Psychiatrist as Expert Witness
Second Edition

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The Psychiatrist as Expert Witness Second Edition Thomas G. DC London. England . Massachusetts Washington. Gutheil. M. Harvard Medical School Boston.D.

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. Companion to: The psychiatrist in court / Thomas G. — 2nd ed. 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. and that information concerning drug dosages. p. Dr. 2. As medical research and practice continue to advance.G8 2009 614′. Title. specific situations may require a specific therapeutic response not included in this book. Inc. . The psychiatrist as expert witness / Thomas G. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. American Psychiatric Publishing. however. Evidence. Forensic psychiatry—United States. Thomas G. Food and Drug Administration and the general medical community. therapeutic standards may change.. Copyright © 2009 American Psychiatric Publishing. 2. For these reasons and because human and mechanical errors sometimes occur.appi. II. c1998. Gutheil. Books published by American Psychiatric Publishing. Thomas G. [DNLM: 1. ISBN 978-1-58562-342-6 ( Library of Congress Cataloging-in-Publication Data Gutheil.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. VA 22209-3901 www. Gutheil has no competing interests to disclose.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Inc. Expert Testimony. Gutheil. Moreover. Psychiatrist in court.S. W740 G984pf 2009] KF8965. cm. Gutheil. schedules. and routes of administration is accurate at the time of publication and consistent with standards set by the U. I. Forensic Psychiatry. Includes bibliographical references and index. Expert—United States. Inc. 1000 Wilson Boulevard Arlington. paper) 1.

. truly the wind beneath my wings.To my children and the hope of the future. To Shannon.

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. . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . . . 9 References . . . . . . . . . . . .Contents About the Author . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . 13 Turndown Rates. . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Appelbaum. he has taught many clinicians about the interfaces between psychiatry and the law.. the textbook. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry.D. Harvard Medical School. coauthored with Paul S. M. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. and a Distinguished Life Fellow of the American Psychiatric Association. Clinical Handbook of Psychiatry and the Law. xi . Through more than 250 publications and many lectures and seminars in national and international fora.. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. Gutheil.D. received the Manfred S. he has received local and national writing and teaching awards. 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. and now in its fourth edition. Recipient of every major award in the forensic field.About the Author Thomas G. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. M.

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other changes in this second edition include: a glossary of useful terms. an expanded discussion of bias in testimony. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. besides the requisite updating of references and suggested readings.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. and at the request of past readers of the first edition. it provides tedious stretches of waiting and inactivity. and many a practitioner feels the urge to try out this fascinating realm. a number of basic points from that book are covered in early chapters of this second edition for readers who would benefit from such a review. Often the greatest difficulties in this profession occur at the outset. The Psychiatrist in Court: A Survival Guide. if you feel shaky about the basics. 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. expanded definitions of key concepts. In addition. additional illustrative examples. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. Moreover. From another perspective. before experience itself has had the opportunity to provide the most durable and valuable instruction. in fact. interspersed with frenzied bursts of action. and cases or principles that I have learned about since the first edition. Such service presents many stresses and equally many satisfactions. a model forensic consent form for examination. you might consider this book to be next in logical and chronological order to the companion volume in this series. Forensic psychiatry is growing in popularity. 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. that book is a good place to warm up. xiii . As an aid to present readers. this edition also contains things I wish I had said in the first edition.

Gutheil. Best wishes for success in your burgeoning career as an expert witness. and informal discussion in a user-friendly tone replaces scholarly discourse. . Thomas G. the novice court goer. perhaps— dare I say it—interesting and even fun. drawing on developments subsequent to its first version. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court.D. for such readers. 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. whenever possible. you. SECOND EDITION If your early court experience has not been too traumatic. I hope you find this approach useful.xiv THE PSYCHIATRIST AS EXPERT WITNESS. concrete advice replaces abstract theorizing. the later chapters may yet prove useful. This new updated edition. The more seasoned expert may wish to skim over the more familiar material in the text. kicking and screaming. M. hands-on mentoring and guidance that were not readily available in the past. You who are in that position are also my audience. attempts to provide some of that practical. but choosing to go. Indeed. in part because they represent material never covered in other sources.

Harold Bursztajn. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. Harvard Medical School. Resnick. for permission to use some of his material on writing for court. and to Ms. Ellen Lewy for absolutely indispensable assistance with the manuscript. to Drs..D. Hilliard. Larry Strasburger.. and Shannon Woolley for their careful review and most helpful critique and comments. Esq. Phillip J.” James T. I especially thank “Dr. Stephen Behnke. and Ms.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. Candace Love of On-Point Research for valued assistance in compiling resources. xv . M.

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A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. the expert is distinguished from the ordinary or “fact” witness by an essential attribute: the fact witness is limited to testimony about what can be discerned by the five senses by direct observation or experience. More narrowly.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. 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. For example. knowing a lot about a certain topic and having extensive experience therein. the concept of a psychiatric expert witness. in contrast the expert is entitled by the role to draw conclusions. both clinical and nonclinical. the question “What makes an expert?” seems to answer itself: expertise makes the expert. Indeed. is a psychiatrist who uses particular skills. In this book. to provide information and understanding relevant to the legal system’s concerns. even if those conclusions are based on others’ observations. clinically defined. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. In the courtroom setting. an expert witness may review a chart filled with other clinicians’ observations 1 . that is. the question of what makes an expert witness is more complex.

SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts.. insanity. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. some questions can only be answered by a specialist. the court system needs expert witnesses in a burgeoning variety of technical fields. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. However. the expert is to educate the retaining attorney. and so on. What I find bemusing is the fact that.. 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. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. Indeed. As a rule experts should limit themselves to criteria-driven. 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. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. I believe this person. or malingering.” This issue is discussed further in later sections of this text. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. incompetent. For that matter. at times. competence.” You want someone who will present in a way that the jurors would be inclined to say this. such as competence or insanity. that is.. then the judge or jury. . about matters that are beyond lay knowledge or decision making. I’d want to be treated by this person because he/she makes sense.2 THE PSYCHIATRIST AS EXPERT WITNESS. I also want someone who has clinical experience and is doing that which he/she is testifying about. proclaiming their ultimate faith in the jurors themselves. because what an expert offers is “only” a witness’s opinion. Under this model.I do not want someone who [merely] teaches others about it. Note in regard to the issue of ultimate findings. from ballistics to the temperature of coffee sold at fast-food franchises. if I had this problem. the jury is free to accept or reject the expert’s testimony in whole or in part. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. opinionphrased descriptions rather than conclusory statements: “in my opinion. are the very same ones who had retained me on a previous case. not the ultimate finding that a judge or jury decides.

Mozart begins to describe the opening scene of The Marriage of Figaro. and 5) argue the case (1). clinical entities. some points. statistics. is the adversarial context. at family functions. . a law professor. although basic. Most clinical work occurs in the context of the alliance. eyes glowing with interest. and throughout this book. 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. syndromes.Introduction: What Makes an Expert? 3 Another scholar. and the one often most troubling to clinicians. The foremost of these. (2. he has become engrossed in the story. The power of storytelling was captured in a movie about the career of Mozart. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. or resolved or otherwise put to therapeutic use. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. consider this scene: In the movie Amadeus. conflict between the parties. 2) make the fact finder want you to win. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. In this chapter. with Figaro kneeling on stage taking the measurements of his marriage bed. causation. Despite his doubts. and an adversarial atmosphere are problems to be avoided. however. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. are so essential to this work that I review them in the following discussions. the emperor is initially resistant to Mozart’s novel music. The emperor leans forward. In one scene. 3) make sense out of the law. Showing pictures of the deceased at communion. demographics. surmounted. “Where are the communion pictures?” Pressed for a less cryptic expression. and so forth would have accomplished this vital storytelling purpose. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. 4) help the fact finder see the facts. The highly experienced defense attorney who had retained me was heard to mutter at one point. oppositionality. went even further by listing the functions of the expert as being to 1) tell the story. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. and the resulting probabilities. pp.

The usual guiding principle in such determinations is “the best interests of the child. Unlike the search for consensus in the clinical setting. such as child custody evaluations. must first ask the question. 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.e. you work for the consultee (i.” a mandate that may trump other claims on your agency. render highly complex the question of agency. you usually do not). and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). both of which reside in every case and every patient or litigant. I define the term work product to include the notes. in the forensic setting.. and other papers that the attorney generates in the course of litigation. The question of whom you work for also will alert you to major pitfalls of bias. whether testifying or consulting. the retaining attorney or court). the court situation is a zero-sum game: one winner. Note for completeness that certain forensic contexts. in a forensic setting. Like other consultants. This specialized topic is beyond the scope of this book. Although there may be as many views of the patient as there are team members. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. In the legal context. In medicolegal work. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. the adversarial context is one of the “givens” in the situation. even if it is a compromise (3). files. because that position confers greater neutrality and protection for your efforts. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. as well as the usual lack of a physicianpatient relationship (i.. memoranda. ambivalences may be divided between the two parties in the case rather than felt internally by either. Com- . one loser. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. the team is expected to reach some sort of consensus about the treatment so that it can move forward in a unified manner to the best possible solution. in the clinical context.e. For example.4 THE PSYCHIATRIST AS EXPERT WITNESS. The Prime Question Any forensic psychiatrist. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. two of the victims of this concept are ambivalence and complexity. In other words. they are not case-related documents and therefore are protected from disclosure. you usually work for the patient. for whom am I working? Your answer will clarify your location within the adversarial framework.

the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. lest they be exposed prematurely to the other side. or impression. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. be carefully documented. it should. Most attorneys know not to include details of their trial strategy in letters to you. The issue here is the tension. suspects. Warnings are further discussed in later sections about the interview itself. my own or others’ interview notes. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. including records. court-related issues are often matters of public record and public exposure (in open court). of data—facts and clinical verities—rather than on idiosyncratic theory or whim.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. and captured as well in the consent form for forensic examination as Appendix 1. correspondence. convicts. 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. Therefore. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. Although therapy usually transpires within the patient’s self-reported data. when in doubt. with exceptions. with some exceptions. or basis. of course. . the forensic perspective almost always extends beyond the individual examinee. One trenchant reason for this approach is to obtain corroboration or discorroboration. later addressed. defendants. your personal attorney can always give you advice on nondiscoverable matters. 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. fantasy. is private and confidential. litigants. The term also suggests that an expert’s opinion rests on a base. between the “whole truth” and the “admissible truth” (4). In contrast. and relevant literature. As we will see later. reports. The retaining attorney will guide you in this matter. legal documents.

In practical terms the expert witness.. may be forced into limitations on this promise because of countervailing considerations of precedent. which preclude admission of certain kinds of data or evidence in the name of justice. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. and the like (4). fundamental fairness. The witness should be guided by the maxim: when entering the courtroom. one is guided by its rules. corroboration. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. This painstaking. absent clear delusions. In contrast. experts in court must play by court rules. Once again. be it moral or monetary. do not demand to be heard: answer all the questions and then stand down when dismissed. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. Yet the court may be driven by principles of fairness. and to maintain an appropriately skeptical posture. always seeking out verification. The Socratic Method Although expert testimony has been compared to teaching. despite the convoluted. obvious self-contradiction. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. 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. — George Santayana Unlike the treatment context. 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.. prejudice. though under oath to tell the whole truth. the forensic practitioner is wise to suspect everyone of having some stake in the matter. detailed. and similar signs. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. or discorroboration . but the Socratic method is one of the mainstays of courtroom procedure. hearsay-ridden trail by which it comes to the team’s attention.6 THE PSYCHIATRIST AS EXPERT WITNESS. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. Because a patient in treatment is willingly coming for help. hearsay.

. we are paid by time criteria. ask about the local variant.Introduction: What Makes an Expert? 7 for all important facts. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. For most of us. or even reasonable psychological certainty). Reasonable Medical Certainty Doubt is not a very pleasant condition. Other contextual clues about the hired gun are overly candid advertising in legal media (e. for example. Rather. reasonable medical probability. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. and leads physicians of all specialties observing. high-profile insanity cases. 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. honest experts should avoid these approaches to . Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. — 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. makes forensic psychiatrists unpopular with their clinical colleagues. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. All psychiatrists. including forensic psychiatrists. Note that there may be some jurisdictional variation on this point. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. sell time. forensic work is a sideline to our clinical focus. Although some will cry that there are exceptions. but certainty is absurd. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. regardless of its clinical or empirical validity. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. As a general rule. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure).g.

case materials. and you maintain your ethical compass direction. see reference 5 and the appendix to reference 3). (By the way. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. 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 prime directive of the legal system is telling the truth regardless of whether it favors the welfare of the patient or severely damages it. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. you avoid temptation to skew your opinion. Thus. summarized as follows (for more extensive discussion of this point. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. it is an excellent way to benefit from the teaching of colleagues and to share ideas. legal. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings.) Treater Versus Expert Should a patient-litigant’s treater ever serve as an expert witness? Although there are no inherent problems with serving as a fact witness and reporting on your observations of the patient. First. although the clinician is obligated to place the welfare of the patient above other considerations. “Developing and Marketing a Forensic Practice. there are significant clinical. If a clearly meritless case is offered to you for review. There are complexities in this area that should be addressed.” in this volume). the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . SECOND EDITION finding work. reasoning. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. because these provide a base of financial stability that enables you to turn down cases. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. Often no absolute standard exists by which to measure opinion testimony. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. For various reasons (5–7). and corroborating data.8 THE PSYCHIATRIST AS EXPERT WITNESS. and ethical incompatibilities with serving as your patient’s expert.

Attorneys seem to display a curious indifference to these incompatibilities. treaters called into court may violate the confidentiality of the clinical setting. Early in my career. Indeed. 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. the expert goes in skeptical. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). constitutes a bias for forensic functioning.D.. the treater has usually had only the patient’s reports on which to rely. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. Second.” Even when the expert is the only source of data that the jury receives. the wish to avoid paying expert fees that are usually higher than those of treaters. The Humility Factor Finally. though essential for therapy. the therapeutic alliance.” Although this last is true in certain respects. . in contrast.Introduction: What Makes an Expert? 9 the treater gives in court. whether because of simple ignorance of the above distinctions. M. 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.” This provocative image should be kept solidly in mind. From this viewpoint. as noted in the section on malingering above. even though this may occur appropriately under legal rules. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. 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. not the engine. Master forensic psychiatrist Robert Simon. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. thus leaving the jury free to vote its “gut. rather than the entire forensic database. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. Third. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation.

J Am Acad Psychiatry Law 34:14–21. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. 2006 Catto G: Acting as an expert witness. 1992 Appelbaum PS. 4. Harv Rev Psychiatry1:4–5. Baltimore. British Medical Journal 337 (#7664). 1997 Gutheil TG. 2008. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 8. Wiley.10 THE PSYCHIATRIST AS EXPERT WITNESS. Am J Psychiatry 154:448–456. 6. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. 2007 Barsky AE. Lippincott. 7. “the admissible truth”: an ethics dilemma for expert witnesses. et al: The “whole truth” vs. Gutheil TG. FL. Suggested Readings Ackerman MJ. 2005 2. White MS. Baltimore. Washington. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. MD. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Testifying and Everything Else You Need to Know. J Am Acad Psychiatry Law 25:233–247.gmc-uk. New York. MD. J Am Acad Psychiatry Law 31:422–427. Williams & Wilkins. Bull Am Acad Psychiatry Law 20:153–162. 1997 Gutheil TG. 2003 Strasburger LH. 3. American Psychiatric Press. Simon RI: Narcissistic dimensions of expert witness practice. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Kane AW: Psychological Experts in Divorce. Hauser MJ. Depositions. 2008 . 4th Edition. Accessed August 5. Williams & Wilkins (Wolters Kluwer). Guilford Press. 5. J Am Acad Psychiatry Law 33:55–58. SECOND EDITION References 1. Boca guidance/expert_witness_guidance. Gould JW: Clinicians in Court: A Guide to Subpoenas. 2002 Bronstein DA: Law for the Expert Witness.asp. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Lewis Publishers. Lippincott. 1998 Gutheil TG. New York. DC. Available at: http://www. Expert’s Quarterly (Winter): 2. Personal Injury and Other Civil Actions. August 2. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness.

Gold LH: Textbook of Forensic Psychiatry. Washington. Hillsdale. Bull Am Acad Psychiatry Law 15:217–227. 1994. Edited by Quen JM. 2001 Quen JM: The psychiatrist as expert witness. American Psychiatric Press. DC. pp 233–248 Rogers R. 1989 . Int J Law Psychiatry 13:281–307. New York. Psychiatric Services 52:1526–1527. Bull Am Acad Psychiatry Law 2:119–132. Behavioral Sciences and the Law 7:145–180. J Am Acad Psychiatry Law 30:10–13. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Springer Science+Business Media. 1990 Gutheil TG. Analytic Press.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. 2001 Simon RI. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. 2005 Simon RI: Psychiatry and Law for Clinicians. DC. 3rd Edition. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 1992 Dietz PE: The forensic psychiatrist of the future. in The Psychiatrist in the Courtroom. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. NJ. American Psychiatric Press. Washington. 2004 Slovenko R: On the therapist serving as a witness.

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. First. To prevent such inadvertent abuse or exploitation of the examinee. examinees being interviewed by a psychiatrist. It is a control easily within the reach of every witness—the lever marked “truth.. particularly an empathically attuned one. and its results may harm. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. their ultimate goals in the legal process. rather than help.[Finally] I realized that each witness chair comes equipped with a stabilizer control.. the ethical expert be13 . S-3) THE EXPERT faces many challenges in forensic work.” (1. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray.” They may forget that this encounter is not therapy. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.CHAPTER 2 The Expert’s Ethical Universe My first adventure in the witness chair convinced me that it was as unstable as a one-wheeled rickshaw on a downhill course.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. In this chapter. p. tend to drift unconsciously into a “therapeutic mode.

This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. you decide you cannot support the retaining attorney’s position. 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. either your threshold for validity is too high or you need to meet a better class of attorneys. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. If you take every case you review. 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. this case is over and has been turned down. and states. this case might be called a defense case because the actions of the defendants are. understandably. You pass this information on to your retaining plaintiff’s attorney. the attorney curses your name. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. After settling up any monetary adjustments. the turndown rate is the percentage of cases in which. scoffs at your qualifications.. Therefore. The warnings (carefully documented.) For example. In a not-so-ideal situation. indeed. thanks you for your help. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. and slams down the telephone. Rather. Turndown rates between 10% and 30% are not uncommon. impugns your ancestors. you are friends with one of the defendants). (Note that even if you cannot support all of the claims proffered in the case. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. 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? . Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. after reviewing. who—in the ideal situation—accepts this view.14 THE PSYCHIATRIST AS EXPERT WITNESS. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. if necessary. If you turn down most cases you get. defensible. you must consider whether your threshold for case validity may be too low. that the firm will not be using you as an expert. denounces your integrity. For symmetry. indicates the intention of explaining your information to the client.g.

” . “White on this side. inpatient care. or a number of invalid or meritless cases. 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. for example. An author described the special sensitivity to what one can swear to in this way: You are asked. only over those you elect to accept. and the expert becomes the fully neutral observer and reporter. One model holds that once the oath is taken. you could receive a number of good cases. Consequently. 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. “White. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. This model has been called the honest advocate model. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. speculate about.” Your correct answer would be. and so on. they do represent cases in which you have elected not to participate. for a particular case outcome). say. all of which you might accept. you take nothing for granted. Partisan pressures from the adversary are put aside. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. and 2) you answer cross-examination truthfully (see the following discussion). This model is sometimes called the advocate for truth model. that position is always acceptable. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. Consequently. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2).” Once under oath. Although these referrals are not strictly turndowns. the only touchstone is absolute truth as you know it or understand it. all of which you should turn down. guess. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. that is. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. “What color is that house over there?” The novice answers. In forensic practice.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. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. Nevertheless.

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.g. or make whatever use of your opinion that may be of service. is disappointed that your present opinion is unfavorable.” in this volume). As you work closely with your attorney. thus. Recall that the attorney’s goals are winning the case. First. just what does the expert owe the retaining attorney? Strictly speaking. respect. 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. committed quality work. If the attorney. but two dimensions of the relationship pose potential ethical problems.16 THE PSYCHIATRIST AS EXPERT WITNESS. “First Principles. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. similarly. The worst betrayal of the attorney-expert contract is the shock and surprise that an attorney feels when your testimony in deposition or on the stand takes a turn totally out of synchrony with your previous disclosures and discussions with the attorney. The varying forms of bias are discussed below. This difference is significant. discussed further in Chapter 3. and what you can and cannot testify to under oath. identification with your retaining attorney (discussed more extensively in [3]). this identification may compromise your needed objectivity. but the likelihood of identification bias would surely seem to be greater. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. that is not your problem. A pitfall in this area might be called forensic countertransference. is misreading the nature of the ethical contract between the two parties. you owe only serious. under the rubric of loyalty. yours are providing ethical and valid consultation or testimony or both. settle or drop the case. the skeletons in your closet. out of feelings of being loyal to his or her retaining attorney.. Extending this idea. you do not owe agreement with the attorney’s position or theory of the case. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. that is. this factor would require greater scrutiny of the relationship by the forensic witness. you may come to like. might extensive socializing with the retaining attorney—or. . with whom you have done many a previous case together. You do owe it to your attorney to level with him or her about yourself (e. and admire him or her. The attorney is free to find another expert. your opinion and its limitations.

as a clinician. p. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. 33) However. an attorney. of course.” Note also that. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. The situation does reveal some complexity. such as overidentification with the judge or the “system. for instance. Similarly. of course. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. many expert biases are not detected either by the adversary system or even by the experts themselves. if the countertransference is unmanageable. promises many future retentions. Somewhat idealistically. and may add blandishments such as dinners at expensive restaurants and the like. If you are a victim of child molestation. this effort may be termed nonsexual seduction. This neutral position is highly desirable for that reason. you may feel unable to examine objectively a child molester. bias can be exceedingly subtle. eliminate other subtler biasing factors. 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. although not common in practice. 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. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. The fact that the position is more or less neutral does not. There is no shame in this. (p. 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. you are expected to manage your countertransference toward the examinee or the examinee’s actions. The . might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. In this model the attorney lavishes praise on the expert. 337). 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. you should refer the case.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.

here I select only the most common for a brief review. On direct examination. Personal bias. the lawyer will take you through your credentials. what you have reviewed. in a suicide malpractice case. “I am biased in favor of the belief that everyone is an autonomous agent. also threaten objectivity. is a universal pitfall in forensic work. and its basis. in an insurance challenge. there are numerous potential biases covered in the article. in that to be diverted from necessary objectivity by the fee is to become a venal hired gun. The Ultimate Ethical Test The ultimate test of expert witness integrity is honesty under cross-examination. your opinion. clearing up any dubious issues. many self-explanatory. the dual role should be avoided. The treater bias is addressed in the treater-expert conflict noted earlier. an expert might respond on direct. when you approach a case from a particular perspective or school of psychiatry. and 3) directly addressing bias on direct examination. the advocacy bias. A competent attorney and expert will have prepared for this stage of the proceedings by reviewing the questions that the attorney plans to ask. Finally. and so on. anticipating relevant cross-examination. or.18 THE PSYCHIATRIST AS EXPERT WITNESS. with withdrawal from the case serving as a last resort (7). During the cross-examination. Money is the most problematic bias. since almost all litigation (except possibly contracts) occurs after the fact. The potential hindsight bias—the belief that an outcome is more likely because it has already occurred—bedevils all forensic work. but I believe in this case the decedent was sufficiently mentally ill to meet criteria for unsound mind in this jurisdiction” (8. the holes and limits of your side of this case will . 2) resisting attempts to compensate for possible bias (since attempts to correct one’s own biases may constitute disingenuousness). How should possible bias be addressed? In terms of useful approaches we recommend 1) not denying bias. and professional beliefs or ideologies. Cross-examination is new territory. For example. 7). where the expert advocates for the side of the case rather than for his or her own opinion. while allowing each attorney to point out the potential for bias of the other side’s expert. SECOND EDITION topic is covered more extensively elsewhere (6. pp. 73–74). but in this case it is my expert opinion based on the data that the treater’s negligence was the proximate cause of the plaintiff ’s decedent’s suicide”. when a case hits too close to home. As Table 2–1 indicates. but a summary listing of possible biases may illustrate the point. “I do not believe that every patient who commits suicide is mentally ill or insane by the relevant criteria. Attorney pressures are an expected potential influence to be resisted. spontaneous and unrehearsed.

p. Gutheil and Simon (6). having become inappropriately enamored of their opinions rather than of the truth. and identification as above. the true extent of their opinions. the opposing attorney exerts the push of attempted impeachment.” Your retaining attorney exerts the pull of retention. the limits of your knowledge. and the hypothetical situations under which their conclusions would be different. and their testimony is often unconvincing.The Expert’s Ethical Universe 19 TABLE 2–1. and the limits of your testimony. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. the limits of your credentials. In the process of cross-examination. 261. expert testimony is like that. loyalty. the limits of your data. Such candor may well enhance their credibility. likely be explored. if appropriately asked by the other side. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. while servants beat him with knotted towels. Therefore. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. experts can be separated into two categories. yes. Finally. The less admirable experts. defend those opinions passionately and fiercely on cross-examination. none of this information should be a surprise to your retaining attorney. the limits of your conclusions. Again. 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. 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. . both pull and push must be resisted.

Psychiatric Times. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. Simon RI: Avoiding bias in expert testimony. Baker TO: Operator’s Manual for a Witness Chair. J Am Acad Psychiatry Law 27:546–553. 38. SECOND EDITION References 1. MD. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. 2004 Gutheil TG. Williams & Wilkins.20 THE PSYCHIATRIST AS EXPERT WITNESS. 2. J Am Acad Psychiatry Law 32:70–75. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. 8. American Psychiatric Publishing. December 2004. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. McKinzey RK: The ethical confrontation of the unethical forensic colleague. J Am Acad Psychiatry Law 29:336–339. Martinez R: Forensic Ethics and the Expert Witness. 1983 Appelbaum PS. 1999 Commons ML. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 2002 Candilis PJ. Bull Am Acad Psychiatry Law 20:141–152. 2007 Gutheil TG. 1992 . Miller PM. J Am Acad Psychiatry Law 36:195–200. 2001 Slovenko R: Discrediting the expert witness on account of bias. Psychiatric Annals 34:260–270. Miller PM: Withholding. DC. 2002 Gutheil TG. Defense Research Institute. 4th Edition. 1990 Brodsky SL. 3. objectivity and fair compensation. 2008 Katz J: The fallacy of the impartial expert. 36. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 6. J Psychiatry Law 28:449–457. 1992 Lynett E. 5. Bull Am Acad Psychiatry Law 20:163–177. Gutheil TG: Expert witness perceptions of bias in experts. 2001 Miller RD: Professional vs personal ethics: methods for system reform. 7. 39 Gutheil TG. Baltimore. Washington. New York. pp 33. Weinstock R. 2004 4. Int J Law Psychiatry 13:249–259. Commons ML. Prof Psychol Prac Res 33:307–309. Milwaukee. Springer Science & Business Media. WI. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty.

The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. 1991 . 1987 Schultz-Ross RA: Ethics and the expert witness. Leong GG. the adversarial system and the voice of reason: reconciling impartiality and advocacy. Hosp Community Psychiatry 44:388–389. 1989 Weinstock R. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 2005 Rogers R: Ethical dilemmas in forensic evaluations. Greenberg SA: The expert witness. Prof Psychol Res Prac 34:219–224. J Am Acad Psychiatry Law 33:386–389. Bull Am Acad Psychiatry Law 17:189–202. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. Bull Am Acad Psychiatry Law 19:237–248. J Am Acad Psychiatry Law 36:167–174. Behavioral Sciences and the Law 5:149–160. 1993 Shuman DW.

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In the forensic relationship. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. 23 . prescribe. you may or may not owe a separate form of allegiance to that attorney’s client. Your duty is to the person for whom you are working. When you examine a plaintiff at a defense attorney’s request. share a copy of your report with the examinee. as when a defendant. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. make recommendations. indirectly. Although you are usually working for an attorney. regardless of what is going on with other experts or treaters. that person is the recipient of your opinions. that attorney’s client. the patient is your employer. ineffectual testimony. you may—indeed. that is usually clear. considered for examination of competence to stand trial. your employer is less clear. you still work only for your retaining attorney and. is being treated in a hospital setting. and compromised working relationship. treat. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. or perform some other such intervention with him or her. you should—be polite and supportive to your examinee. but you are not required to preview your findings. forensic work should thus always begin with the question. or some kind of class action).CHAPTER 3 First Principles IN CLINICAL WORK. discussed in the previous chapter and later in this chapter. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. That relationship is also a source of certain pitfalls of bias. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. However.

though this distinction may be intentionally obscured as a cross-examination tactic. on purpose—he chose to characterize as “mine. the topic is extensively discussed in the companion volume. “Have you discussed this with your attorney?” This threw me. the term your attorney will be used to refer to the attorney retaining you as an expert. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. Friendly. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist.” implying venality and bias. not your personal counsel. This point came up in an actual cross-examination in a distant state. Smith until he or she invites you to call him or her John or Jane. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. This telephone call is far from a mere administrative formality. clinical experience. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. refer to those sources. The Retaining Attorney’s Request After the first forensic question. more likely. In this chapter. Watch for this ploy. and mastery of professional jargon. which—either by accident or. The Psychiatrist in Court: A Survival Guide. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . How you communicate with your attorney is important from the outset. Instead. It became clear that the cross-examiner meant my retaining attorney. this approach is self-defeating. informal discussion should be the format. If this issue is in question.24 THE PSYCHIATRIST AS EXPERT WITNESS. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. politeness dictates that you call the attorney Mr. for whom am I working. or Ms. I was asked.

no matter how unfounded? Do you have a . 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. These issues go beyond mere conflict of interest. have you been the defendant in a malpractice suit.. 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. Your Fitness as an Expert Should you. 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. Therefore. This example is fairly obvious. if your aged mother has just died in a nursing home. which is usually (but not always) clear-cut. “Look. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. board certification. Note that your special expertise should exist against a backdrop of your general competence in the field. The attorney can then take or leave this arrangement. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. as indicated by publication. In general. experience. but subtler versions of personal resonance with a case are not uncommon. I recommend hearing about the broad issues of the case first and only then asking for people’s names. personally. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. however baseless? Are you now being investigated by the board of registration for some allegation. 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. For example. the attorney will not have revealed confidential information (the names) to you.First Principles 25 chiatrist actually has some knowledge about. but I am willing to become familiar with the issue”). The Expert’s History as Possible Problem Area Are there any blots on your reputation? Your attorney is entitled to know whether any circumstances could prove embarrassing if brought up by the other side in court. the hospital.g. and so on. I don’t know a great deal about this specific subject. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. if you cannot or should not take the case. that is.

the judge elects to be blind to the legal opportunism paraded before him daily—attorneys have been known to look for an occasional monetary incentive in bringing particular cases forward—and instead focuses on the experts. for instance. This issue is further discussed later in this chapter. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. attorneys are invisible within the court record. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. Second. in the preceding quote. contradicts your present position.26 THE PSYCHIATRIST AS EXPERT WITNESS.. have taken an opposite position or opinion.g. . are there cases in which you have testified on behalf of the other side. the ultimate beneficiaries. . the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. or have been retained by one side more than the other? Review this with the attorney. Do your best to address this possibility early. (1) This quote is interesting from several viewpoints. for example. Belatedly surprising your attorney (e.In too many medical malpractice cases. . a criminal record (no matter how minor). knows that it was Smith’s lawyer who was derelict. 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. you realize that the more you write. in an economic sense. 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. credentialing problems in the past. Finally. the more words you might have to eat on cross-examination. Thus... who are the strangers in the courtroom. 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. SECOND EDITION history of problems in the military. “Smith failed to plead . As is often the case. Similarly. including the speaker. for the first time while on the witness stand) is a major expert sin. . Fees. not for their time and clinical expertise. juvenile offenses. . are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. Reviewing your own published work in a particular area is a worthwhile part of your preparation. If you write a lot. Time. they are all corrupt). the court record chidingly notes. even if the issues are clinically or forensically totally different. unfortunately.e. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses.” when everyone.

analyzing. The attorney either takes me up on this offer. or challenge the details. allowing me to refer to a junior colleague. without children bursting in to share their Nintendo triumphs with you).” or “I am paid by the hour. and organizing your forensic assessment is part of the work.First Principles 27 not the forensic context. First. planning. “So. since the doctor-patient relationship is not pertinent to the examiner-examinee one.” or “Nothing” (and wait for the attorney to crack. and try to maintain that rate. nit pick. this usually means that the client has hesitation or resistance about my rates. Don’t charge for a 90-second telephone call confirming the date of . whether for psychotherapy or expert witness time. 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. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. Indeed. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. ideally delivered in a calm tone of voice and not through clenched teeth. Doctor?” The only appropriate answer. meaning no offense. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. Therapists who are quite capable of taking an extensive. Second. and hires me anyway. choose a fee that you would not be embarrassed to state. I also recommend not “nickel and diming. Doctor. Note also that time spent thinking. Use timers or check your watch at the start and end of a piece of work and write down the time.” Yes. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. attorneys have timers on all their phones and charge by the split second. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. Like the judge previously quoted. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. 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. this is a pro bono case for you?”). same as you. grits his or her teeth. or grasps the point.” Other witnesses may take this further: “My testimony is not for sale. but you are made of finer stuff. I know. only for my time. I tactfully suggest that. is “I am not being paid for my testimony.

How much work or time should you devote to the case? This depends on your schedule. are free to employ contingent fees. shame.A.. 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. Urge your attorney to bring up your fees on direct examination to get it out of the way. they referred me to small claims court. it is unfair to your 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. the good folks on L. but your consultation must be free of investment in any form in the outcome of the case. some of which never . among others. You give only testimony. Then. the organization in charge of attorneys’ ethical issues. If you don’t have enough time. It should. Keep your vacations in mind. SECOND EDITION a deposition. That august body opined that this was not an ethical problem but a business issue or a contract issue. and give the dates to the attorney. you are charging for time regardless of the outcome of the case. ideally. or for reading a one-paragraph letter. I took my first major “stiffer” to court eventually and received some of my money. in addition. The attorneys. of course. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. Owen Marshall. but in my experience. Perry Mason.e. Ethically speaking. 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. basically consultative services. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). you can calmly state them without guilt. To novice experts. at the end of this book. when you design your own fee agreement. defaulted on payment) by their first attorney. failure to pay is reality. for instance. 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. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. even if there is). Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. You sell only time. or other conflict. respectively. don’t take on the case. I reported him to the Massachusetts Board of Bar Overseers. your fee should never be contingent. Refuse any other arrangement.28 THE PSYCHIATRIST AS EXPERT WITNESS.

that is. Will you be expected to testify at trial. your first task might be an evaluation of plaintiff. You may be needed to evaluate a plaintiff (or a defendant. defendant. or will your opinion be used by the attorney to strategize without a report. what your time permits. In other cases. Which comes first boils down to a matter of individual preference. You might advise the attorney on how to cross-examine the other side’s experts or litigants. nontreatment role is clearer. The Final Decision Putting together everything that you now know—what you charge. As a rule. working for the attorney or insurer is a far better idea than working for the client alone. . what your skills or knowledge support. your consultative. testator. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. 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. often in orange-crate–sized lots. how you feel about the attorney. rarely. your attorney. 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. for that matter). The usual next step begins with your receipt of written materials on the case. or is the matter likely not to go to trial? Are you going to be a reporter. at some point. how free from bias or conflict the situation is—finally ask. You may provide rebuttal material for use by others. which the attorney decides to forgo because it might have to be supplied to the other side? All these considerations affect not only your clear sense of role but also practical matters such as your time allotment and scheduling. as a professional. that role would be ethically incompatible with the objective testifying role. Among other things. is more accountable. If you are. Moreover. someone who has to generate a written report. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case.First Principles 29 lead to the courtroom. an individual client. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. You simply may be a consultant to the attorney on the merits of the case at the outset. or even witness. Do one or the other. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. going to testify.

because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. compared with some other behavior. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. or a tendency to want to withhold information. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. 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). The attorney presented the case to me by telephone. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. the next task is clear. 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. though you would not necessarily know this. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. the emotional pressure of the attorney’s desperation should not alter your objectivity. Scheduling considerations may determine the first task. The point is perhaps an obvious one. I recommend listening for indexes of venality. does the attorney have merit? As a rule. even in a consultative sense? In the initial telephone call. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. There is nothing inherently wrong with this desperation. However. On perusing . In reality. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. you may be the ninth expert the attorney has consulted. his dangerousness was the crucial issue.30 THE PSYCHIATRIST AS EXPERT WITNESS. you must ask the question. in relation to which. stating that the patient’s dangerousness flowed from his being charged with slashing tires. including by obtaining expert consultation. the attorney may be employing you in a desperate attempt to clutch at some faint hope. the minority are the ones who pose the problems. a tendency to assume you will give the “desired” opinion no matter what the material shows. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. Regrettably. followed by review of the documentation. of course. a behavior that certainly did not seem all that threatening. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. attorneys would call you only for ironclad solid cases in which they have every confidence. For example. for that matter. In any case.

however. in a competence assessment of an elderly woman. If he or she withholds or distorts information or lies to you initially. and the result may be your withdrawal from the case. Expert witness work is hard enough without bad faith.First Principles 31 the old record.) The second red-flag situation occurs when. the benign category. (Note also in this example the value of the previous record. will acknowledge that they agree or felt the same as you did but needed to use expert input to satisfy their own mandates or those of the client or the insurer. the only safe course is not to work with that attorney. the attorney wants to be sure you understand the import of certain data.” After mulling this over. 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. a document often difficult to unearth but essential to the full evaluation. such pressure should be resisted. wants to be certain you took note of a particular record entry or deposition statement. Obviously. which happen to be unfavorable to the retaining attorney’s case. then you have to expect the same in the future. will argue with you at this point. however. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. therefore. A delicate balance must be struck between reasonable flexibility about. I decided those were near-enough equivalents. For example. I telephoned the attorney and demanded to know why he had withheld this history. In the second. Another less knowledgeable group of attorneys will be educated by your discussion. faced with this disappointing fact. based on the patient’s history of significant violence. the wording in which your opinion is couched and the substantive alteration of your opinion. Some attorneys. In the first. You cannot afford to embark on a course of work with someone such as this particular attorney. I told the attorney that she possessed “islands of competence. for instance. 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). my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. Most ethical attorneys. you give your conclusions.” He wondered if that could be equally well expressed by “areas of competence. arguments are the attorney’s attempt to browbeat you into changing your mind. 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. the malignant category. and the arguments fall into two categories. after you have given your verbal report. Somewhat annoyed. but I emphasized that he and I needed to be clear about the fact that I would testify . based on your review of the database.

wanted. moreover. It is important to ask for everything from the attorney. in fact. only the final opinion really matters. This suggestion was acceptable. Your request should be global. an opposing attorney asked me on the stand when I had received various parts of the database. I had prepared a 22-page single-spaced report. He asked me to use the dates of the depositions I had reviewed. that since I had read it and thought it relevant. Volume II.” The attorney moved on to other matters. and I accepted. inclusion of somewhat negative evidence would show objectivity. the retaining attorney. The attorney made a big show of my “concealing” this information. regardless of what may be precluded by rules of evidence and discovery. in an extended phone call. I told him. and testify to if asked. in a high-profile. multimillion-dollar will contest. I could not ethically omit it. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. In a variant on this issue. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. under the specious rationale that this method would permit seeing the evolution of my opinion. the remainder of the opinion. however. In yet another case. In another case. Since only the final (or courtroom) opinion is determinative. finally. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. and so on. to “go over” my report. I did not recall because I do not keep that kind of record. Although delighted with this level of detail. The attorney asked for major cuts or deletions. This was trivial. rather than Volume I. his senior partner wanted to deemphasize the subject by changing some wording. The attorney said he was offended that I should even think he was suggesting omitting something. I said I would change nothing. in any way. this rationale is especially ill-founded.32 THE PSYCHIATRIST AS EXPERT WITNESS. and so on. . hung up. The negotiating discussion moved into argument. One attorney nearly drove me mad by releasing dribs and drabs of material. shape or form whatsoever. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. after discussion I accepted that. tactfully. and did not stop until I said. “withholding” important data from the jury. Agreement was struck. even if some material is irrelevant and other parts are inadmissible. This is the final opinion I am giving here and now. and withdrew from the case.

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. feel free to use it if it suits your own preferences. even data of dubious validity. This ethical dilemma arises when the attorney says. I find it helpful first to read the complaint so that you know what the basic issues are. but you can only imagine it because the actual document has not been provided. In general. I think this guy is probably not insane. 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. 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. Either undertaking or turning down such a case is a defensible position. He was photographed doing the crime. I have found that attorneys for some reason often fail to send the exhibits to depositions. Forensic countertransference is further discussed in reference 2. Second. if you will. . First. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. Recall that a plaintiff can claim anything at first. for example. facts. This problem is a variant of a countertransference issue. check the documents you receive against the cover letter to be sure you have everything you should. you are creating a checklist.” 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. it is up to you. long pages of deposition testimony drone on about the exhibit. but I’d like you to do this evaluation on him anyway. because I’ve got nothing. 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. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. a situation sometimes occurs that requires special mention. look critically for claims. directed not toward the patient or examinee but toward the attorney. after your report. each element of which may be confirmed or disconfirmed by other material in the database. Referral to another or an additional expert also may be indicated. As you read the complaint. you should consider some important points. My own approach is as follows. However. and connections that can be checked against the primary record data and flag those in some way. “Look. As you go through the documents.

the depositions or witness reports. makes it harder to focus on hot spots of the case or areas of contradiction in the database.. The attorneys on either side of the case may limit the interview time available. and selection of a safe environment may be required for examining potentially dangerous examinees. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. the testator. 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). third.34 THE PSYCHIATRIST AS EXPERT WITNESS. you are familiar with basic interview approaches). you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. insanity in a criminal context). no matter how difficult the scheduling might be. 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. advance screening. Note for completeness that some experts like to start by examining the litigant first. exert every effort through your attorney to obtain enough time to do an adequate examination. A laptop computer for this task may be quite helpful. Some discretion. and be prepared to acknowledge this constraint as a limitation on the data. the defendant. however. you will want to interview the plaintiff. accept it as a limitation. or whoever is involved in the case (presumably. your interview queries would thus arise directly out of the material. Such an examinee-first approach. or with only the complaint reviewed. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. you also may want to review relevant literature on the subject. . At this point. including your own. The Interview After reading the materials. If the appropriate amount of time for your examination cannot be obtained. the witness. for example. I strongly recommend reading large chunks of material at a single sitting. you may also request that the attorney’s office create the timeline. I read the medical records and clinical material or the equivalent. perhaps by a paralegal. Given the complexity of many psychiatric malpractice cases. if you have not already done so. cold. SECOND EDITION Second. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. then to check the record to determine whether the complaint or issue has any validity. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up.g. This permits.

when examining for the opposite side of a case. The fundamental reasons are as follows: 1. that side’s attorney may refuse to allow you to do so. focusing on making a recording. Jurisdictional rules may make one or all of these procedures mandatory. cuing. for some experts. 2. to have the interview audiotaped or videotaped. in one case. exaggerating symptoms. 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. the expert will receive a request to have an attorney or paralegal present during the interview or. however. then to examine him or her again to clear up matters raised by the written material. This decision is legitimate but bears consequences. Note that when you are retained by the defense and wish to examine the plaintiff. Examinees commonly play up to the audience or recording device. presumably. Inappropriate interruptions and objections. 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. Verbatim material also can be obtained in this way. more authentic) responses to your inquiries. it might be effective and appropriate to examine him or her first.First Principles 35 If the witness lives locally. For example. and suggestions from the attorney present may contaminate the process. alternatively. although this irritates some examinees more than writing during the interview. 3. Examinees who must travel to see you should. as a rule. If you are unable to prevent the above intrusions. However. the absence of this datum must be factored into the opinion. then to read the database. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. an audiotape or videotape of an interview may be constructive. be spared this burden. but I strongly recommend opposing their occurrence through your attorney. it is certainly beneficial for teaching and for self-review for quality assurance. “You wouldn’t let me!.” My immediate response. Not uncommonly. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops.” was appropriately disconcerting. 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. based on the belief that such an examination can only hurt the case. unobtrusive note taking probably represents the optimum compromise among choices. For a number of circumstances. inhibit free-ranging inquiry.

. The following are four of the principles that I apply as a generic framework for this purpose. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. distortion. “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. . Do the deviations from standard of care sound hokey.36 THE PSYCHIATRIST AS EXPERT WITNESS. If the attorney attempts in any way to cue or coach the examinee. behind the examinee). a second offense should lead you to terminate the interview and report this interference to your retaining attorney. is whether the case is fundamentally plausible. March. a mass tort in Louisiana. Mobil. (4.. be it civil or criminal. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.. in the unpublished 1996 case of Lailhengue v. a psychiatrist interviewed plaintiffs with an attorney present.Attorney Larry Cohen (personal communication.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. p.g. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. This subject is addressed extensively elsewhere (3). Plausibility The first question to ask of the case. and so on? . “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. 1997) at the University of Michigan Law School reports that some attorneys consider it part of attorneyclient privilege to instruct the client to deny that the coaching ever took place. 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. and I want to sue him.. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. but the following vignettes make the point clearly: For example. 322) To offer a structure for this stage of the inquiry. as when the complaint boils down to. warn once.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie.. 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..

The phone records aided in challenging the claim by providing a time stamp. MGM/UA. the outcome. in a sexual misconduct claim later proven groundless. the following dialogue occurs between the trial judge and Edward Pierce. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. or statements of others? Was either the plaintiff or the defendant out of town on a reasonable alibi at a critical point when negligence was claimed? For example. how might it have occurred alternatively? Is there another way of explaining what happened. 1978). Finally. The notion of the alternative scenario can be essential for assessing civil claims. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. 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. however. he had made several outgoing calls during the time period of the alleged molestation. If the situation did not occur in the manner claimed. Alternative Scenario In the film The Great Train Robbery (Crichton M. remember not to offer any treatment or treatment recommendations to your examinee. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. or the alleged damages? For example. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. even if asked to do so or tempted by medical ne- . or for some criminal claims of insanity.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. She had apparently established these referents by calling the office and receiving no answer. observations. as well as disability evaluations and similar tasks. about the historic English crime. she assumed the doctor was not present and could not refute her claim. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. 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. such as sexual misconduct.

in both civil and criminal cases. compare the consent form in Appendix 1. there are some things I need to inform you about. such as informing the examinee which side has retained you. in a deposition. Is the patient convincing and plausible? Do the words match the music. Second. Fitting Together the Interview Commonly. First. that is. Other warnings. You will be challenged to weave interview data into the totality of the case. I have been retained by (your side. hurt your case. Her emotions were strong and appropriate to the content. 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. the court). SECOND EDITION cessity as treatment issues emerge in the interview. Note the fully intentional structural resemblance of the above paragraph to informed consent. or have no visible effect on your case—only time will tell. what we talk about here is not confidential because I am not your treater. recall that anyone can really be fooled. As you are interviewing the examinee. you will interview the subject (plaintiff. possibly with reporters present. if not.38 THE PSYCHIATRIST AS EXPERT WITNESS. defendant. my testimony may help your case. Only when I subsequently read her deposition did her entire . and treatment offers are inappropriate. the other side of the case. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. and you must keep several issues in mind. answer them as best you can. but since I can only be useful if I am objective. you can ask for a break (water. and others) as part of your exhaustive review of the database. what you say may come out in a report. Do you have any questions about what I have told you so far? If the person has questions. she had plausible answers for all my questions. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. as noted early in this text. and if you do not. unlike what you may be familiar with from other doctors or therapists. restroom) at any time. And finally. you do not have to answer any of my questions. you are attending to his or her demeanor and its relation to credibility. move on to the substance of your interview. although I hope you will do so. Third. The relationship is not a medical one. please sit down” but before anything substantive has been said: Before we start. seem to be called for out of fundamental fairness to your examinee. I am entitled to make note of that. or in an open courtroom.

Besides serving as a valuable lesson in humility. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt.” In the civil system. especially when they themselves. the case was highly instructive: interviewees can be extremely convincing. because of their psychopathology. a defendant may be mentally ill. The plaintiff ’s failure to take those remedial steps does count against him or her. on the other hand. 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. it only means that you’re being conned into thinking that you’re not being conned.First Principles 39 case fall apart. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. For example. the preexisting condition must be deducted from the damages. One of the most challenging tasks for the expert is to evaluate serial traumas: to peel apart the sequence of events to determine what the results . The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. Jones did Y and the plaintiff did Z. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. 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.e. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. Similarly problematic is the matter of intervening causes: “Dr. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. because the defendant is not causally responsible for what happened earlier. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue.. but did that deviation cause the damages. Smith did X at this point. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. Such distinctions are extremely significant in the hard monetary realities of the legal case. The Causation or Connection Dilemma In many forensic cases. but then Dr. believe deeply in their position. particular plaintiff vulnerability for which the defendant must be held responsible.

2003 3. Kirby v Ahmad. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. what the results were of subsequent events. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. keep the latter indefinitely. SECOND EDITION were of a particular deviation. Another good rule is to discard. appeals. Even if a case seems “over. Washington.” there may be subsequent posttrial motions. 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. if any. Or. and your interview notes. J Am Acad Psychiatry Law 31:6–9. then is sexually abused by a treater. Further research may reveal other promising approaches (6). . American Psychiatric Publishing. although it has not yet gained broad enough acceptance to be generally admissible as evidence. and then has other symptoms or more of the same symptoms. they may serve you to recall the case at a later point for research or publication purposes. with permission.40 THE PSYCHIATRIST AS EXPERT WITNESS. and so forth that require revisiting the materials. 2. all case materials except your reports. because they would be hard to replace. 1994 Gutheil TG. and what the exacerbations were of preexisting conditions. mistrial claims. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. two major approaches apply: 1) shred or have a reputable company shred the paperwork. In addition. 2002 Gutheil TG: Reflections on coaching by attorneys. or 2) return the materials to the retaining agency. References 1. DC. 63 Ohio Misc 2d 533 at 534. work by Pittman and Orr (5) on differentiating serial trauma shows promise. or incident. What portion (usually. event. 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. If you are discarding case materials.

2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. Guilford Press. Brain Injury 11:791–799. New York. Zasler ND. in Clinical Assessment of Malingering and Deception. New York. J Psychiatry Law 21:33–76. 41 6. 1993 Deaton JSD: Toward a critical forensic psychiatry. Chapman. 1997 Pittman RK. Brunner/Mazel. Williams & Wilkins. et al: Response bias in plaintiffs’ histories. Lippincott. 3rd Edition. 3rd Edition. Medical Chances: How Patients. Edited by Rogers R. MD. Families and Physicians Can Cope With Uncertainty. J Am Acad Psychiatry Law 31:232–238. Guilford Press. Hamm RM. 2008.First Principles 4. Assessment 4:321–324. Routledge. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. 2005 . Otto R. 1991 Lees-Haley PR. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Baltimore. Feinbloom RI. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. Gutheil TG: Clinical Handbook of Psychiatry and the Law. New York. Williams CW. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Bull Am Acad Psychiatry Law 21:37–52. & Hall. 4th Edition. 5. et al: Medical Choices. 1990 Suggested Readings Appelbaum PS. 2003 Group for the Advancement of Psychiatry. 1993 Bursztajn HJ. J Psychiatry Law 24:3–25. New York. J Am Acad Psychiatry Law 33:158–175. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. 2007 Borum R.

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More practically. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. Generally. In a suicide malpractice case. 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. and 4) proximate cause. once you know it has already happened. for example (the most common claim against mental health professionals). the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. 2) breach of duty. this bias means that the outcome of an event appears as though it had been far more foreseeable. than was actually so before the event in question occurred.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. I provide several examples of cases—and some of the nuances unique to each type of case—that illustrate and clarify the spectrum of the expert’s work. The discussions within this chapter should be considered an introductory survey. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. 3) injury to the patient. you already know the person is dead. Sometimes forgotten is the fore43 . in this chapter.



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-



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,

When reading the deposition. or whatever. of any queries or signs of missing data that the record generates to be checked later or elsewhere. a marginal scribble. but depositions consist of attorneys’ questions to various parties. make some sort of notation each time you read through the record. you are seeking consistency and credibility.Types of Typical Cases 47 the tests ordered. of course). “This is so clear and memorable that I will naturally recall it later. any forensic document) without making some sort of notation of what is significant. or a folded corner of the page. through your retaining lawyer’s permission and intercession. opposing experts. defendants. . for example. of what this record entry contradicts or supports in the deposition. 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. as a separate document. Because keeping a medical record is itself part of the standard of care. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. these may not necessarily be the questions you would want to ask. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. 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. This notation can be on a separate sheet of paper of similar notes. a post-it. 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. you read the depositions of witnesses. an underline. and others. if present. On some occasions. To save yourself reading everything from scratch each time. after the records. the expert may draw conclusions from the record alone. In the process of reading. I find it valuable to look at the social service history. The point may seem obvious. Next. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. the next time you read this document for deposition or trial may be 7 years away. There is something of a translation burden on you to read between the lines to determine the issues. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts.” However. you may be tempted to say to yourself. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. nor are the queries necessarily posed the way you would do so. or it can be a highlighted entry. of your thoughts and reactions. you may have to pose your own questions to the parties. as different things may strike you on subsequent review. plaintiffs.

Doctor. but still relevant. a case wherein the defendant had or has a major. The appropriate response is. data gathered at the time of the alleged act. your attorney’s confidential trial strategy. Because of the flow of material and its often fascinating content. namely. and so on. In those jurisdictions where the issue exists. are the most significant. exert the effort to stand back from the process. Is this defendant someone who seemed to show . you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. 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. the more helpful it would be in forming your opinion. litigant. On occasion. “I think you should talk to the retaining attorney. you are lulled by this informal. or expert. 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. Criminal Responsibility Cases In cases of criminal responsibility. Of second-rank importance.48 THE PSYCHIATRIST AS EXPERT WITNESS. is historical material. and records of any treating clinicians from points close in time to the alleged acts. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. what do you think about this amazing case. you may confront the classical poles of the issue. weighing the logic of the deponent’s responses. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. 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. To read critically. These unethical conversations usually have an informal tone: “So. while reading a deposition. The truly challenging case lies between these extremes. statements of the arresting officers. Out of the entire panoply of available material on a criminal responsibility case. in my (and almost everyone’s) view. you can be drawn into the prose by the unfolding drama therein recorded. These would include witness and victim reports. eh?” Presumably. remember to consider diminished capacity as an intermediate condition. For example. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. friendly approach into letting your guard down and discoursing freely on your opinions. it is inappropriate to call or write directly to the opposing attorney. SECOND EDITION Although the more information gathered.

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. Because of the seriousness of criminal penalties. 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. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. the interview in a criminal responsibility case has the least power of all the data collected. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. Finally. the cause of the crime. a plaintiff drank from a chemically contaminated bottle and burned his mouth.8). The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. some on . as with all forensic evaluations (6). an unrelated accompaniment to the crime. and so on. I find the interview for an emotional injury case to be of primary value. The interview also gives you a chance to assess what might be called a sense of proportion.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. In one case. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. 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. The novice expert should become familiar with useful publications on the subject (7. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. an injury from which he recovered rapidly without lasting effect. All the interview data must be fitted to the totality of the database. a surprising number of individuals avoid treatment. the result of the crime. malingering is especially common and problematic in this assessment. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. for example. although mandatory and irreplaceable.

“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. Not only might these provide a context for the injuries claimed. 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. as a result of the mugging.50 THE PSYCHIATRIST AS EXPERT WITNESS. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus.e. 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. In this situation. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. 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 response “My attorney told me not to” conveys its own obvious message. may be relevant. Next to the small table where we were sitting.. 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. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. too. I had to interview him in his home because he claimed to be phobically homebound. avoidance. but they may also be relevant to assessing damages or preexisting conditions. The interview took place in his basement recreation room. you again often encounter the previously described problem of factoring out the effects of serial trauma. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. I . Finally. History. with intrusive flashback memories. especially idiosyncratic history. For example. 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. A question you should ask your interviewee is. only to find that the goods are legitimately accompanied by a receipt. He claimed to have full-fledged PTSD. This history may represent the plaintiff ’s “thin skull” (i. however. Such a search can be embarrassing and humiliating to anyone. and startle responses. SECOND EDITION their own accord and some when given this advice by their attorneys. preexisting vulnerability. in regard to which the defendants must “take the plaintiffs as they find them”). The shopper then may sue the store for harassment and consequent emotional harms.

He slept like a log. the jury ultimately decides. In a famous incident. On the surface of his story. he saw a jagged metal edge and below that edge. the alleged malpractice. 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. it turned out. you may be asked to review a case that has been extensively covered in the media before you have been retained. he would have said calmly. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. He was strapped into his seat. ate like a lumberjack. There is a fundamental asymmetry about media coverage in almost every case. to get the actual data. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. and. An apartment dweller sued her landlord for failing to respond to the infestation. This passenger. High-Profile Cases At one point or another. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. This case also illustrates the maxim. which the average member of the public really doesn’t understand. or crime has generated publicity first. of course. therefore. the former passenger was revealed as a serious. but at incredibly high levels. Boston Harbor with freezing.357 Magnum close to his ear. then you get the case. had been in the front row of seats just behind the break in the plane. Initially. perhaps so. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. usually not. He gave the impression on interview that if you fired off a . “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. unimaginative. I myself jumped in my chair. without warning. fellow passengers. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. however. don’t assume—examine. the plaintiff or prosecutor can say anything. had no signs of trauma whatsoever. One of my cases raised this issue. dying. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. As the “moving . stoic fisherman. the nose of the plane fell into the harbor. it seemed to me that this incident would induce PTSD in a stone statue. on careful inquiry. not totally probative. 51 This observation was potentially valuable and worth recording.Types of Typical Cases knew this because. It is. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. injury. yet the observation is valid. the case certainly seemed meritorious in theory. and did not dream. On detailed examination. that is. looking straight down past his toes. who.

you simply may be reading your newspaper before you are asked to consult on a case. in hopes that some of that public will later become jurors. consciously or unconsciously. 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. Some attorneys may try. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. you have to be alert to this potential biasing factor and be aware of the media asymmetries. “Developing and Marketing a Forensic Practice. selling testimony instead of time. of course. rip off the covers in moving cars. Even though you may try to tune out the media. because they don’t want to give away trial strategy. 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. SECOND EDITION parties. In malpractice cases. In short. the defense attorneys cannot answer the media’s questions. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions.” the attorneys have to create the case from scratch. None of this trumpeting means anything. “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. to influence the public powerfully in advance.) Another stigma of the hired gun is the counsel of perfection. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. for example. however. until it is proven in a court of law.” in this volume provides more reliable methods of publicizing your practice. pushing the case for all it is worth. By doing this. there is no case until it is brought.52 THE PSYCHIATRIST AS EXPERT WITNESS. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. (Chapter 9. but so do a number—perhaps a greater number—of venal witnesses. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. The defense attorneys must say “no comment” each time. 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). the standard references the average reasonable . but this principle may be readily overlooked in a media frenzy. A plaintiff can say to the media. the plaintiff and prosecutor inevitably bias the public’s perception. lest your review should begin with a one-sided perspective.” In another case. for example. Therefore. and spill hot coffee over their thighs and sue McDonald’s. Ninety-nine percent of the time.

“They (the defendants) should have done more. “If the care had been adequate. Some experts believe that physicians are never wrong and always justify whatever the physicians do. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen. . Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Waffles are evasive.” This testimony is a classic hired gun claim. For example. The real issue is: does the standard of care require more.” Many “good ideas” theoretically might have contributed to the patient’s care.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Indeed. in the real world.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. Anyone always could have done more. the counter to such claims often begins with the phrase “Well. The hired gun often advances a perfectionistic standard as though it were the average. An even more malignant twist is the made-up or artificial standard. but malpractice litigation hinges on what is required by the standard of care. 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. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. 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. Another variation on this theme is. the likely explanation is that the treaterexpert made it up to suit his views of this case. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage.. but no one lives real life like that. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care.. I personally have never heard of or read that standard anywhere. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. it’s a very serious situation. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation.

That was the answer in toto. The entire answer took four full deposition pages. then committed suicide. It certainly should have been considered. and that is frequently the hallmark of the hired gun. an emergency petition ideally would have been. a patient had escaped from the hospital. specifically. Getting the feel for how the waffle works takes a certain amount of reading of case material. that this is a patient with some history of a. goes all the way to [another city]. but that is the answer to a different question. actually. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. I am not in a position to tell you that that would be the only choice. he gets frightened. In the following example. 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. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. an hour before that or less signs a 3-day statement and then just disappears. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. a reasonable history. 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]. there is a lot of despair and a great deal of thought disorganization in the patient. we don’t know whether he stops or doesn’t stop and get [drug] or not. . The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. it seems nearly impossible to extract the actual opinion from the thicket of prose. Note that this entire chunk of testimony is one run-on sentence. reasonably would have been. the mental state and what’s gone on in that patient’s mind is very uncertain. he has taken in despair 10 lithiums some years back. of unpredictability. Also note that the failure to consider a valid option indeed may constitute negligence. Is that a yes or a no? In fact it is neither—it is a waffle. but.54 THE PSYCHIATRIST AS EXPERT WITNESS. Note how that witness actually avoids responding. the standard of care required that he be] involuntarily admitted to a hospital before [month] of [year]? Answer: It is my opinion that one of the possibilities that should have been seriously considered would have been an involuntary hospitalization. More to the point. and where I believe the standard of care was breached was that the patient. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. he should have been [that is. took some blood pressure pills one time in [city]. rather than ideally.

et al: Decision-Making in Psychiatry and Law. 2008 5. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. 1983 Bursztajn H. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. Brodsky A. DC. American Psychiatric Press. . 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. I would prefer never to assume malice when incompetence would serve as an alternative scenario. MD. 4. Bursztajn H. 1975 Tversky A. Williams & Wilkins. which makes sure the patient is safe within a structured environment. J Exp Psychol 1:288–299. 3. Gutheil TG. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. I: malpractice prevention and the use of subjective data. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. and that includes they would be safe within or without the community. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Baltimore. Guilford Press. In fairness. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. foresight: the effect of outcome knowledge on judgment under uncertainty. Washington. 2002. 7. for better or for worse. 1991 Fischhoff B: Hindsight. Shuman DW.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. Finally. 6. 2. Conceivably. References 1. Edited by Simon RI. but that doesn’t mean that it’s without supervision. Bursztajn H. 1981 Gutheil TG. 3rd Edition. Int J Law Psychiatry 6:317–329. New York. with impunity. Science 211:453–458. Yet. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. we must consider another possibility regarding the above examples. Int J Law Psychiatry 6:331–350. note that one cannot. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. Gutheil TG. we may be dealing with an incompetence issue. Kahneman D: The framing of decisions and the psychology of choice.

Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. Meloy JR. Bull Am Acad Psychiatry Law 20:409–418. 2nd Edition. DC. SECOND EDITION Gothard S. DC. et al: Detection of malingering in competency to stand trial evaluations. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. 2000 10. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. 2005 Simon RI. 1987 11. Viglion DJ. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. insanity. Law and Human Behavior 19:493– 505. J Am Acad Psychiatry Law 34:215–223. Psychiatry 1:26–28. Washington. Washington. American Psychiatric Press. American Psychiatric Press.56 8. 1995 9. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Bull Am Acad Psychiatry Law 21:23–36. THE PSYCHIATRIST AS EXPERT WITNESS. 2004 Knoll J.” J Am Acad Psychiatry Law 35:112–117. 1999 Gutheil TG: Fundamentals of medical record documentation. Gutheil TG: The problem of evasive testimony: the expert “waffle. Psychiatric Services 50:767–773. Psychiatr Clin North Am 17:439–446. J Psychiatry Law 28:5–18. psychiatry and the law. 1992 Gutheil TG: A confusion of tongues: competence. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. 1993 . Legal Studies Forum 9:41–53.

Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. Note that some jurisdictions practice “trial by ambush” without expert discovery. preparing for what to expect from the various witnesses and documents. there is the period known as discovery. In both cases. From the viewpoint of the expert. use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. Attorneys probe and define the limits of their cases. if any. the attorney will likely write the actual prose of the 57 .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. Under some circumstances. 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.

that is an attorney’s function. and painting you into a corner. without retaining you at all. Do not attempt to decide what is or is not objectionable yourself. 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. or some combination of the three: getting your opinion. I advise you to withdraw from (or refuse to take) the case. In addition. 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. either from clinical evidence or experience or from facts in the database. you do not want to be associated with this attorney. reasoning that they can always modify their opinions at trial when the right questions are asked. review Chapter 5 in the companion volume to this book. the expert. even worse. It is critical that everything in your interrogatory be something that you have already decided you are able to support. The Psychiatrist in Court: A Survival Guide.58 THE PSYCHIATRIST AS EXPERT WITNESS. it is always unethical. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. based on his or her interpretation of the rules of evidence. the interrogatory is sworn testimony. read every such document before it is turned in. . For example. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). your attorney will advise you as to what requests for information or documents will be objected to or refused. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. However. Opposing attorneys usually follow one of three agendas. SECOND EDITION answers for you. This approach saves you from having to retract misstatements on cross-examination. hyperbole hurts you. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). Depositions The second major area of discovery is the deposition. guided by your input as to what you expect to testify to at trial. obtaining admissions. If you discover this to have occurred. If you have never given a deposition or you feel a bit shaky about the procedure. attorneys sometimes ask you for your tax returns of the last 5 years. On occasion.

Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. during the course of the deposition. a witness’s deposition or medical record that you had not seen before your own deposition. Of course. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. the attorney. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. taken before the entire database has been acquired or reviewed by the experts. The attorney can then prepare cross-examination.Discovery and Depositions 59 Getting Your Opinion First. you are ethically obligated to so inform your attorney. however. On the other hand. but not ideally. the attorney is not averse to discovering precisely those points that will help his or her side of the case. This discovery function is a completely legitimate task and one with which you should cooperate fully. to empty your wordhoard. and deadlines may dictate this suboptimal condition. depositions are occasionally. as a way of ensuring that your opinions may be brought out at trial. In this latter context. and so on. This information may or may not trigger a supplemental step for you in the form of an interrogatory. inform his or her experts about facts or issues to pay attention to. 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). who is in turn obligated to inform the attorney on the other side of your new opinion. 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. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. time considerations. over and above what has been conveyed in reports or interrogatories. if any. Just answer the question. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. for instance. When you subsequently receive. but this is a subintention within the larger discovery framework. as the Anglo-Saxons phrased it. the police. admissions and concessions of points or . The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. or a full-fledged repeat deposition. the plaintiff. select rebuttal witnesses. the defendant. Attorneys also stress that the deposition is their one chance to find out what you have to say. a telephone conference. scheduling problems. This ploy usually can be defused by your attorney. and so on.

Indeed. You are locked in to that testimony. insanity. and accuracy (3). under oath. not the mental status by itself. His mental status was not particularly demonstrative of symptoms of mental illness. even though it was the preadmission history. also under oath. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. Truth. The answer was no. or damages—the entire gamut of forensic possibilities. that justified the admission. of course. raised many possibilities. fairness. SECOND EDITION views detrimental to the other (i. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. that is. 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. 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. he denied to the admitting physician that he had any violent intent.. of course. A patient was committed because of threats. much was made of this testimony. In a wrongful commitment case against the hospital. . Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. based on paranoid-sounding content. Accuracy addresses the clarity of your vision in relation to the known facts in the case. however. Your Goals for the Deposition One scholar has described the witness’s goals as truth. For example. When you later give testimony in court. negligence. although the history.e. to kill coworkers. what are we to believe.60 THE PSYCHIATRIST AS EXPERT WITNESS. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. The points may relate to guilt. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. so that your opinion is constrained or limited in a way that decreases its impact. your) side of the case. competence. is the final standard. any contradiction is obviously damaging to your credibility: “You swore this now and that then. On arrival at the hospital. At trial. This procedure elicits sworn testimony. conceptually. 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.

focused. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. this also takes a toll on the court reporter. you were probably not paying sufficiently close attention. More details about this necessity are discussed later in this chapter. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. will spend hours inching through the expert’s credentials. you must be rested. several factors urge clearing substantial blocks of time for deposition. aware of the serious weakness of the substantive aspects of their case. try to eliminate distractions. Occasionally. however.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. your opinions (and their limitations). Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. Unfortunately. as noted above. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. If you do not go home after a deposition feeling tired and drained. Prepare for this. To do your job. 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. hoping to hit the key points if only by accident. 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. if more time turns out to be required. The expert should clear a full day for the deposition to be on the safe side. . Get enough sleep the night before the deposition. Still others. Rather. and vigilant at all times. and your planned testimony. it is an essential part of the evolution of a case and thus your role in it. looking for dirt before even addressing the instant case. intense concentration sustained over hours is hard work. another deposition date can be scheduled. 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. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). alert. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet.

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. to be an appropriate way of determining competence in the clinical situation. If there is the slightest doubt. “The patient gave no sign. Question (attorney for staff member): Knowing what we know today. are you seriously telling this court that that sentence [quoted from an article] is one which instructs the forensic witness and the medical health [sic] treater that. the case manager’s lack of understanding might be negligent. Second. yes. And the third part of your question is. they have to enter into a dialogue with their patient. so you were negligent. it is serious. or evidence of a propensity for violence. in order to determine competence. A more effective answer might have been. therefore. yes. Note. you can give a useful compound answer to a compound question. so you were negligent. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. I am serious. which I codirect. this could be used to instruct both the forensic assessor and the treating clinician as to a means of determining the capacity to enter into informed consent. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. ask that it be broken down. First. Question: So. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. his act could . If the question is compound or complex. ask to hear it again or have it read back. or you knew and didn’t act. in the following example. but it is quite risky and may compromise clarity. 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. On rare occasions. 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 questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. let me answer all three components. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue.] Answer (by case manager): I don’t think I would agree with that. no. warning.62 THE PSYCHIATRIST AS EXPERT WITNESS. I don’t—I wouldn’t agree with you there.

or weaken certain conclusions (4).] Answer: Gee. the totality of symptoms did so). [This is not an answer to the question.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. Question: Did you observe [patient] attending those meetings. I sure hope I saw him because I usually don’t write things unless they are true. Clinical data also can be cut into discrete segments to attempt to refute. Her answer ignores the fact that the record does not always note the source of the clinical data.] Answer: Right. of course. Obviously. The deposing attorney inquired. For example. and too extensive an answer to deposition questions. making a chart entry based on what you were told by other staff —for example. in a vacuum. Gee. the witness should decline to answer yes or no to such a question. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. and grandiosity. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. “In a vacuum. moreover. the answer. [The witness sets her own standard of care. did not constitute sufficient evidence of bipolar disorder (although. The following excerpt of testimony given by a naive fact witness.” would be perfectly okay. reveals the hazards of too effusive. not what others have told you? [The attorney tightens that very screw. or did you make that entry based on information given to you by others? [These are. It is unlikely.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis.] Yet another deposition tactic is what I call gerrymandering the data. not the only possibilities. too discursive. not the individual element. But this witness has set a standard for herself: “hope for truth. of course. you write down what you have observed.”] Question: Is that the procedure in which you make notes. testifying 5 years after a suicide.Discovery and Depositions 63 neither be foreseen nor be prevented. vulgarity. a patient with apparent bipolar disorder challenged an involuntary commitment. When seen. challenge. 5 years and hundreds of patients later. right. which might be used against her nursing colleagues. any good nurse does that. that the witness specifically remembers such a detail. no. from a previous shift—is universal practice. . paranoia. Note that an excellent and self-contained answer to such a question or line of questions is. the patient manifested rapid press of speech. “I don’t recall. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. social obnoxiousness in various ways. In addition.

Giving the stenographer your business card before the deposition is a highly useful courtesy. Other useful basic tips include the following: 1. a garbled record from too-fast speech wastes everyone’s time and money. Overlapping dialogue is awkward or impossible for the reporter. shakes. in the belief that your pause means you have finished. They are.64 THE PSYCHIATRIST AS EXPERT WITNESS. Some key points made in that volume are the hazards of guessing. 2. usually accidentally. not your glib response in the deposition room. SECOND EDITION The Pregnant Pause After the question is asked. incomprehensible questions. but sometimes they do so deliberately to distract you or to break your concentration. drugs. in essence. Insist on finishing your answer to your satisfaction.) Your answers must be verbal and aloud. 3. not only for the spelling of your name but for contact after the deposition for questions. the trap of double negatives in the questions. The pause also allows other attorneys to object. Correct any errors. and the importance of speaking slowly. If your concentration slips and you give an answer that you later believe was wrong or even misleading. cannot be quoted out of context. lack of time frame. The Psychiatrist in Court: A Survival Guide.” “I don’t recall. immediately correct . who cannot take down two simultaneous conversations and produce a clear record. “Objection. your attorney may be trying to call your attention to something.” “no. and so on. If any of these summary phrases do not trigger recognition. because the stenographer cannot record winks. insist on a time frame. Be careful about overlapping speech. Speak slower than usual. whose written record will be the actual form of the deposition in all future contexts. Do not tolerate this interruption. pause a moment. review the corresponding discussions in the companion volume. instruct you not to answer. Attorneys may sometimes interrupt your answer. nods. Also remember to listen carefully to the objection. and other myoclonic responses. Pausing allows you to replay the question in your head and to think about your answer. clearly. and carefully for the stenographer. “yes. and the like. Recall that the written transcript is the durable version of the deposition.” “I don’t know. shrugs. each speaker should finish before the other begins. terms. If your attorney says. Answers Deposition answers are drawn from a surprisingly shallow pool. or you might infer something useful from the type of objection posed. Spell unusual names. in effect. (See also Chapter 5 in the companion volume.” or a short narrative response that contains the question so that the response.” reflect a moment on why the time frame might be important in relation to that particular question.

would you agree that a patient’s sui- . To err is human. Second.. but I can’t say that any of them were [sic] precisely like this one.” (3. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. I tell a lie. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. 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. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. exercise this option. the entire deposition takes place under oath and under penalty of perjury. However. .To tell the truth. In a suicide malpractice case.Discovery and Depositions 65 it on the record.6]. the doctor might answer: “Well. Therefore.) When to Throw It Away In my consultative experience. Two points about this problem should be kept in mind. if you are concerned specifically about a matter of privilege that may govern your answer. this may be phrased as when to throw away the “throwaway” questions. but leaving the error on the record means having to retract it on cross-examination. 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. .. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. the deposing attorney may ask. the deposition may be paused for that consultation. “Doctor. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. . where you are retained by the defense.” Of course. . Therefore. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. First. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. When in doubt. pp. Therefore. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. (The question of coaching is more extensively addressed elsewhere [5. No. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor.. . for example. he could accurately answer in the negative. As a deponent witness. I’d be lying.If I said that. . because no two fractures are exactly alike.

Subjected to the silent treatment. With an encouraging smile the attorney looks expectantly at you without saying anything. may attempt to get some off-the-record insight literally in the doorway. influenced by the TV show Columbo. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. have some water. and move on. “Just a few more questions. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. on the record. and you answer it. Occasionally. an attorney. The moral here. Quibbling over the possible exceptions or equivocating in some way helps no one.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. still. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. and we’ll be done. thinking about dinner and work to do later. by the way. It is not the defendant’s negligence that is at stake in this situation but your credibility. the novice witness relaxes and loses focus. of course. not unlike some patients in psychotherapy whose doorway pauses—“oh. . check your watch. an attorney may look ostentatiously at his or her watch and say. The attorney asks a question. When the answer is that clear. in the colorful argot of the national pastime. make the concession. Remember that the failure to write something down may be below the standard of care. is “It ain’t over till it’s over. having inexplicably found his or her second wind.66 THE PSYCHIATRIST AS EXPERT WITNESS.” Wait to relax only after the stenographer has put away the machinery. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. just one more thing”—contain vital material.” At that point. now begins to fire rapidly at the witness. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. 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. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. wait until it gets ridiculous. but the lack of the note did not cause the suicide. throw it away. but you know enough not to get involved in that “thing. Doctor. Your retaining attorney may also get into the act.

” in a manner to ignore those feelings. This method sometimes involves carefully answering the question that the attorney should have asked. 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.. “I don’t know” or “I don’t remember” is a fully appropriate answer. For example. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas..” Avoid the narcissistic trap of “I can answer anything. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. and answer that part. but I’m in favor of sensitivity. 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. and this response is perfectly appropriate. therefore. that we can’t isolate ourselves with notions of “I’m not part of our society. Some questions are curious because the attorney appears to be flailing at. The only valid answer is that those questions are outside your area of expertise. the subject matter. No expert is expected to be an expert in everything or to remember everything. Note how the first question was a total loss and had to be rejected completely. they often fail to realize that they do not have forensic evidence to back up those notions.and the answer to that question is ....” . I find your question a little confusing. make sure you include the question in your answer on those occasions so that no one is misled. rather than asking about. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can. 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).Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. using categorization. as is “That is outside my area of expertise. “I understand you to be asking me. if you’re grossly suicidal and you have access to guns and drugs and alcohol..” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well.

after which the expert examines for evidence either way. . fortunately. When everyone is through.” This assumption is dangerous because it suggests bias. and far less friendly and instructional than it would to a jury. heretofore quiet and almost appearing bored by the proceedings. this implies arranging coverage for your patients should a crisis occur. Assumptions The deposing attorney may ask. “Did you make any assumptions about the case before you began?” You may be tempted to say. for example. “Well.” as it were). or facilitate calm negotiation. clear. The only vital difference is the way in which you speak. more pedantic. more technical. and so on. Your attitude should convey. should that become necessary. threaten to go before the judge to plead their points.” This position of timeless patience puts the onus appropriately on the attorney to move things along. careful speech that may be more formal. the parties are really the parties in the case. occurs rarely may throw the novice witness: a roaring fight between attorneys. clear. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. That is as it should be. If the admission note turns out to be a forgery. As noted. stand up in their chairs. Because the stenographer (and not the jury) is your audience. Do not do anything. you will make it worse. no matter how generic or basic it may seem. meaning that you assume that the documents are what they seem to be. Clinicians may be tempted to call on their clinical skills to temper violence. The two sides. 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. This fight is an attorney-to-attorney matter. more boring. The only assumption you should make is good faith. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. In the specific malpractice context. firm. the next question will be coming your way. “I can continue until midnight. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. scream at each other. In one deposition. so I assumed that they knew what they were doing. unfailingly polite. and you might well know some of them. you assumed it was a medical record in good faith. but your belief might interfere with your detection of negligence in this case. authentic or merely theatrical.68 THE PSYCHIATRIST AS EXPERT WITNESS. and demonstrate other regressive behavior. mediate the debate. There are good hospitals out there. you will be addressing him or her in slow. A situation that. I know that’s a good hospital. stay seated and keep quiet until it is over. that is not your problem. never losing your cool.

one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. this is a matter of risk management for the pharmaceutical companies. including those parts which conflict with your testimony. competent. In a criminal context. to make an informal clinical diagnosis. you cannot take the position that no text is authoritative. have their limits. For example. these publications are not uniform in authoritativeness.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. After reading the entry carefully. Some experts respond that the DSMs are not authoritative. you may be asked to supply the names of authoritative texts yourself. merely official. Alternatively. However. Attorneys tend to use the latest editions of the Physicians’ Desk Reference (PDR) and Diagnostic and Statistical Manual of Mental Disorders (DSM) in a markedly concrete and reified manner. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. chapter. the examining attorney may ask you if a specific text (book.” Learned Treatises In the course of a deposition. and DSM gives the formal criteria for diagnoses.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. Novice experts. of course. yet the clinical diagnosis and treatment still may meet the standard of care. but ask to be shown to which one the attorney is referring. may imitate the attorneys by overvaluing these texts and ignoring their limits. and innocent until proven otherwise. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. Remember. inescapably. Most modern books and articles have multiple authors or editors. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . Be sure to maintain a sense of proportion about these references and their utility. both sources are “authoritative”: PDR contains the actual package insert information about drugs. Comparably. note whether you agree or disagree in general with the stated points. In one limited sense. or article) is authoritative in the field or in the subject of the current case. Moreover. But both. the disclaimer at the front disavows its applicability in many forensic contexts. desperate for stable islands of consensus in the tossing seas of uncertainty. the parallel assumption would be “Sane. no one wrote a previously published book or article with the exact case in mind in which you are involved. then.

check the accuracy of any numbers (9). The latter may be privileged. In addition. some discuss details of trial strategy in their letters to you. Meet with the attorney and review the issues. Under some circumstances. whose transcript will endure and be used for any impeachment possible. Obviously. rehearse—the details of the links between your conclusions and the facts. Frankly admit if anything has been removed from your file. In some cases.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. laboratory values. outlines or summaries for quick reference) may be subject to subpoena for the deposition. and you may have to furnish copies to opposing counsel.. well before the deposition. SECOND EDITION When quoting the literature.70 THE PSYCHIATRIST AS EXPERT WITNESS. or “cheat sheets” (i. you also may want to meet one more time with the attorney’s client before the deposition. in the video deposition.e. this conversation is protected. be balanced and accurate. record notes. The usual audience of the standard deposition is the stenographer. Give both (or several) points of view if they exist. review your files as diligently as if you were going to trial. summaries. actually visiting a site may be important.. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. (8. In contrast. p. you will need to review a wide array of information. Above all. The Video Deposition A modern wrinkle on the procedure is the video deposition. let the attorneys determine whether it is discoverable. police reports. You must exercise some care in these discussions as they may be discoverable. Many attorneys anticipate this problem and send only bland correspondence. the camera is . statements. but this is not your problem. especially if details remain unclear or if over time the clinical condition has changed or evolved. consult your own attorney. If you are really unsure about something. Any notes. remember to go to bed early.. it is wise to review—and if necessary. Arrange to do so with the attorney sufficiently early. 571) Final Predeposition Preparations Before the actual deposition. Also. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. and so on so that you can buttress all your conclusions with specific elements from the database.. Your attorney then can communicate with the retaining attorney.

but errors can creep in. In the current economy. or the deposing attorney for distribution to the parties. Recall that omission of a comma. say. of the word “not. you are under constant scrutiny. but under some circumstances the notarization can be waived. At least one copy of the transcript is returned either to the court reporter. at times. As in the trial described in the next chapter. If the deposition has been particularly instructive or noteworthy. this time in a permanent record. The video deposition presents a number of possible pitfalls. and must beware of inappropriate gestures and personal bodily attentions. the expert may wish to retain a copy for teaching purposes after the case is over. “It’s an us-and-them situation” was rendered “It’s an S and M situation. Remember to keep your language level. After the Deposition Always ask to read and sign the deposition.” and rendering. and the deponent signs under pains and penalties of perjury. not at the ponderous. instead of—your personal appearance in court. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. Most court reporters are extremely good at their jobs. and pedantic level of the ordinary deposition but in basic. trial-suited English. representing the jury. My personal favorite is when the phrase. read it very carefully. the video may also serve as the vehicle (in this case. . who may see the video displayed in addition to—or.Discovery and Depositions 71 the audience. This approach risks eventually being papered out of house and home. checking for errors and typos. If the expert is known to be unavailable for the trial dates. the retaining attorney. jargon-free. you should try to direct your gaze toward the camera lens. When you receive the deposition transcript.” 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. careful. the deponent expert should always ask for a personal copy to review in preparation for trial. “irresponsible” as “responsible” are small changes with profound results. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. the only vehicle) for the expert’s testimony. 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. juror-friendly.

South Bend. 36. 1983 Gutheil TG. Child Abuse Negl 17:571–572. Milwaukee. Current Psychiatry 7: 25–28. 2005 Suplee DR. Suggested Readings Babitsky S. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. J Am Acad Psychiatry Law 34:18–22. 2007 Gutheil TG: Reflections on coaching by attorneys. 6th Edition. Vols 1 and 2. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 2001 Baker TO: Operator’s Manual for a Witness Chair. Simon RI.72 THE PSYCHIATRIST AS EXPERT WITNESS. Falmouth. Baltimore. Falmouth. 3. Mills MJ: Legal conceptualization. 2003 Kaplan HI. WI. Defense Counsel Journal 4:174–179. Simon RI. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. 7. 5. 2008 Rice B: Malpractice: how to survive a deposition. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. MD. Bull Am Acad Psychiatry Law 10:17–27. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. SEAK. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. IN. The Practical Lawyer 39:55–63. MA. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. J Am Acad Psychiatry Law 31:6–9. 6. 1987 . National Institute for Trial Advocacy. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 1982 Gutheil TG. The Practical Lawyer 33:69– 78. Baltimore. 39–40. Lippincott. Williams & Wilkins. 4. SEAK. 1993 Malone DM. Med Econ 82:45–48. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). MA. Defense Research Institute. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. SECOND EDITION References 1. J Am Acad Psychiatry Law 29:313–318. 9. legal fictions. MD. 8. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. 2006 Gutheil TG. 1999 Babitsky S. 1996 2. Willliams & Wilkins. Gutheil TG. Woodruff MS: Deposing experts.

In this chapter. review that chapter. examining the companion volume. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. pled out. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. preparation means not only reviewing the entire database with great care but also thinking through the story you plan to tell by means of your direct testimony. is recommended as an orientation. If you are testifying away from home. Preparation. If you are uncertain about the guidelines for trial preparation. I review some of the basic courtroom procedures. Planning. 2. 73 . The Psychiatrist in Court: A Survival Guide. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. I addressed the six Ps of trial preparation. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. For experts who have spent little or no time in court. For the expert. and they are the subject of this chapter. settled. the same six Ps should be reviewed but with a slightly different emphasis. 1. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. trials do come around every so often.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. For the expert witness. and devising means of locating key passages in the database quickly. Nevertheless.

what previous testimony has been given. Insist on this conference if the attorney is equivocal or resistant to the idea. Practice. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. parking arrangements. Clarify in your own mind how you plan to deal with questions about your fees. 5. 4.74 THE PSYCHIATRIST AS EXPERT WITNESS. the location of the trial. Presentation. 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. . 3. and what the emotional climate of the courtroom is. the contradictory evidence. Consider taking a taxicab to local courts to avoid parking hassles. Most of these matters are best handled on direct examination where some measure of control can be exercised. Build in contingency plans for the possibility that the trial extends into the next day at least. The pretrial conference is probably one of the most important stages of preparation for trial. 6. what the judge is like. and the data relevant to the other side of the case. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. and select useful examples from your experience to make central points. your publications (especially those relevant to this case). 7. and the expected cross-examination. 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. practice sketching any visual aids you will need for the courtroom blackboard. the floor of the courthouse on which the courtroom is located. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. Clarify and confirm your travel arrangements. and all such details. the relevant literature. you need to know through choice and practice how you will convey your opinion to the jury. You should rehearse ways of expressing information to the jury. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. Confirm travel arrangements and other details. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. and your past experiences. Pretrial conference. Review the weaknesses in your opinion. the unknown issues. If you have a disability. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). It is not enough to know the database. On cross-examination. Define the limits of your testimony. Even more distressing. location of restrooms. You also need to hear how the trial is going. Pitfalls.

Regrettably. Once in the courtroom. but if you are the only one standing. the best approach is to exercise care about the methods used to reach conclusions. When you are allowed to hear the testimony of other witnesses. this kind of potentially valuable hearing and screening device can also be abused (2). much valuable information can be gained and the tone of the room determined. you will find it valuable to locate the restrooms and telephones.. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. 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. sit down. may occur prior to trial (occasionally. Supreme Court case. From the viewpoint of the expert. and to ensure that recognized approaches to the subject matter are chosen.S. 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. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. named for the plaintiff in an important U. Such a hearing. and whether the testimony will fulfill the legally required expert function in the court. Wait in the public seats until actually called to the stand. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. 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. The topic requires more extensive discussion (1). particularly experts.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. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). which are sometimes in obscure locations in older courthouses. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. that is. experts are not allowed to be present in court for the testimony of any other witnesses. its methodologic reliability.e. where the jury will be and what . rise for the judge’s entrance. Practical Matters Preparing to Go On Many courts sequester witnesses. to be able to articulate the bases and reasoning behind those conclusions. Before going into the courtroom.

The expert appears more confident and knowledgeable about the case. while the experts are testifying. a particular citation is. you may provide an opportunity for the cross-examiner to rummage through your files (although the effectiveness of this procedure is seriously undermined by the fact that it inevitably puts the jury to sleep and may alienate them). SECOND EDITION the room looks like from the hot seat).g. 2) as noted. and ensures the accuracy of your recollection by direct verification. 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. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. 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. if needed. Each preference has its pros and cons. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. the opposing attorney cannot search through them for something with which to impeach your testimony. yellow self-stick notes. The downside is the need to remember a vast amount of detail and to recall where. Recall that in almost every case. On the other hand. Note that some anxiety is normal. because his or her opinion is being given from memory. as are all the substantiating data. in an often extensive chart or deposition. What to Bring Experts and their retaining attorneys vary in whether they prefer. only a copy of the expert report that is already in evidence or only a curriculum vitae). essential medical records .. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. even for experienced experts. Note again the importance of having and practicing a plan of organization.76 THE PSYCHIATRIST AS EXPERT WITNESS. tabs. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. or your own table of contents devised for more extensive documents. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. and 3) you may become lost in excessive data. When no documents are before you on the stand. having the whole database on the stand permits greater support of your testimony with specific data from the documents. dog-eared pages. My own preference is to strip down what is brought. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. the attorneys will have it). The expert should determine which of these two approaches is more suitable.

I take to the stand a one-page table of contents (i. and similar data. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. in the sense that you are usually under observation by someone—the bailiff. showing off how busy you are and how court is taking you away from really important matters. do not wear new clothes. 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. Indeed. affidavits. If I need the actual page or quote. perhaps comfort should rule. glass. the defendant or . Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. highlighting marker. Demeanor Being on the stand is not unlike being filmed. and you will not go wrong. during breaks.e. Arranging for a cup. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. what you wear should fit well and be well broken in. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. Avoid either ostentation. This table of contents enables speedy reference to key facts. Above all. eccentricity. A handy pen or pencil. It is unclear whether either strategy is superior to the other. the bailiff usually will keep it filled. and cutting-edge high-drama fashion or excessive informality.. the bored juror. Arrange appropriate coverage so that you do not have to worry about being reached. or carafe of water is an excellent idea. if you must. ensure that they are turned off. your mode of dress should convey the fact that you are a professional in the courtroom on business. It is important to include material that supports the other side of the case so as not to produce (or seem to produce) a partisan trial database. I can use my table together with the attorney’s copy of the deposition. Stick to the conservative business mien. and check in.The Expert in Trial 77 (pruned to relevant periods if needed). depositions. If you are completely uncertain about what to wear to court. For depositions of less central players in the case. Finally. or if you must. testifying is thirst-provoking work. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. Do not wear or carry your cellular telephone or beeper. ornamentation. 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.

Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. even when someone else is speaking. and sarcastic. an attorney—at all times. for example) as body language consistent with candor. not of the attorney in question. Such reactions may be misconstrued as disrespectful. or degrades you. Doctor?”). humor may seem disrespectful. Doctor. fluffy. flip.78 THE PSYCHIATRIST AS EXPERT WITNESS. you are likely to be too involved and therefore possibly biased. Avoid personal body attentions (such as scratching) as much as possible. but of the jury or the entire process. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. With discretion. however. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. and you want the jury to understand it. Make your point because it matters. all such chips are apparent) is particularly unconvincing. get interested in what you have to say and stay interested. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. such as rolling your eyes at the jury when a particularly fatuous question is asked. it is important. SECOND EDITION plaintiff. as follows. Even when an attorney attacks you. Without such alliance. obnoxiously facetious. An expert who doesn’t seem to care about his or her own testimony has probably irreversibly lost the jury: why should they care if the expert doesn’t? Humor usually is a valuable teaching tool. attorney moves on to another subject]. There is no reason for a teacher to get mad. and stuffy. . sneering. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. not credible. humor directed against yourself may show that you do not take yourself too seriously. you know or should know that it is not personal and has nothing to do with you. Your identity on the stand is that of teacher. you win the exchange. demeans you. Scholars recommend keeping the front of your body open (by not folding your arms. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. Beware of “involuntary” gestures. impugns you. If you become huffy or outright mad. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. Be clear. Attorney (with a slight sneer): Isn’t it true. A witness with an apparent chip on his or her shoulder (and in court. and you are unfailingly polite. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. or obtuse to the seriousness of the issue. If the attorney is hostile.

yet may ultimately give up on your testimony after straining to hear for too long. pedantic.” Make your point as concretely as necessary and back it up with hard data from the database. making roving eye contact with various jurors whenever possible. even inhibited souls will nod if they can hear. blunts your argument and weakens your credibility. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. Speak to the most distant juror to be sure your voice is audible. avoid discussing unconscious dynamics unless absolutely needed for your point. Keep in mind the expert’s role in telling the story in a coherent. theoretical. Testimony Direct testimony should unfold in an organized manner. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). and to admit that rules have exceptions.e. but without intimidating staring. ask if you can be heard by the farthest ranks of jurors. If a microphone is available. the most common beginner’s error in the courtroom is the inability to “throw it away. Because jurisdictions differ as to the precise definition. Although you are a teacher. jargon laden. It is not the same as “certainty” (100% sure). the trial is a human process. If you must use. explain. to accept a possibility as such (almost anything is “possible.. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. as a result of your careful and thoughtful preparation with your attorney. . they are usually poorly received by juries. and “waffley. understandable manner that brings the details together in a recognizable gestalt. not stuffy. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. Finally. Direct your extended remarks to the jury. what fools these jargonists be).The Expert in Trial 79 Being fluffy means being too abstract. concede a remote possibility and move on. not just a classroom exercise. project.” that is. They are not excessively academic. evasive. As occurs during the depositions noted in the previous chapter. the concept is sometimes rendered mathematically as a 51% certainty. a juror who cannot hear may be hesitant about saying so in open court. good teachers are lively and interesting. to concede a point that really doesn’t mean much. If no microphone is provided. or prone to nit-picking. Haggling with the attorney over a tiny abstruse point. or respond to jargon. If in any doubt about your speech volume.” but only a few things reach reasonable medical certainty). In general. or waxing argumentative rather than instructive. to agree that some things happen sometimes.



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 Pointers
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.



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 [4]. 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.

Language Level
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

” Realistically. and throat clear that you emit on the stand. the jury usually appreciates being given the “inside story. the best cross-examination is. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. stutter.” but this appreciation is lost if the jury cannot understand or follow your description. Over the years. The expert is on direct examination by his own retaining attorney. “I have no questions for this witness. I have been impressed by their ability to grasp what is at issue. In the same way. The hazards of lack of practice are revealed by this following segment from an actual murder trial. 83 Although this mode of explanation may seem cumbersome. the dirt stays on the floor.” preferably said in a mildly contemptuous tone. Recall that this is direct examination by his own retaining attorney. As you can grasp by merely reading this response aloud. Respect the juror. any testimony from this witness would be bought and meaningless. The jury hears the testimony twice—an aid to both memory and persuasion. if you do that. 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. This is a powerful argument for at least organizing your thoughts before you begin to testify.The Expert in Trial (draw a barrier) this process. That is how this kind of antidepressant or mood elevator works. some scholars assert. it is numbing to a jury. even if the technical details are lost in the shuffle. Um—as the events became closer to the—um—incident itself [the murder]. “I don’t care to waste my time on this whore. and the expert has theoretically prepared to tell the story in a coherent manner. such an avoidance of cross-examination is sound trial strategy.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. the chemicals stay in the spark gap and keep working so that your mood is lifted. 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. . and slavishly but perfectly appropriately. Adventures in Cross-Examination For experienced experts. because a seasoned expert will simply use cross-examination as an opportunity to make some of the same points made on direct with different emphases. Consider practicing such a description with your attorney or colleagues or friends. just like putting your hand over the vacuum nozzle. as if to convey. depressed— um—and seeking help. grunt. do not underestimate juries.

however.. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. “That’s generally true. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. SECOND EDITION Most often. but in this instance it is not.”) or exhibitionism (“Watch me shine!”). equivocating hurts you. or alternatively. Instead. interrogatory. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. The tight rein on which you are held may make it difficult to get your opinion out there. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. deposition. It is better to say. which may be asked on cross.84 THE PSYCHIATRIST AS EXPERT WITNESS.. and even the attorney’s competitive feelings directed toward the expert. If you want to say. Even those attorneys who opt to engage in cross-examination are usually (but. or publications. ask only questions to which only one answer is possible (fittingly. isn’t that right. or the answer may be obvious from the question (i. never ask a question to which you do not already know the answer. The following are some examples of the last (all are leading questions. not always) aware of two fundamental principles that should guide this activity. surprisingly. the attorney asks closed questions. Doctor?” The only possible truthful answer to all the aforementioned questions is yes.e.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. First. no problem. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). the question answers itself ). the attorney’s competitive strivings with the opposing attorney or firm. The attorney may know the answer to a particular question from the expert’s report.” are almost always answered yes on the theory that almost anything is possible). questions beginning “Is it possible. what you say is often true in other cases. The second fundamental principle of expert cross-examination is keep the expert on a tight rein.. can they not?” • “Another expert might come to a different conclusion.” . “Although the present case is a clear exception to that rule.” the attorney may move on to the next question after you have said. the attorney’s wish or need to have the client see the attorney doing something. Throw it away. attorneys do not perform this simple but effective maneuver. “that’s generally true” and you may be too flustered to challenge the action. such as the previously listed leading questions.

After Rodin Pause briefly before answering each question to allow replay of the query in your mind. this type of questioning means that you have only three answers available: “yes. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. At times. Scholars liken agreeing to this either-or approach to signing a blank check. We’ll reconvene in 15 minutes. if not. if needed.” and do so. and a mere yes or no may fail to convey the “whole truth. some attorneys advise not discussing your testimony. “I’m going to take a moment to think about that. If either will do so. Always ask to see the context if you do not immediately and completely recall it. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. Practically. some sources suggest answering at the outset.” Listen with intense attention to the question. state that you cannot answer yes or no. At such moments.” This response may be foreclosed by the judge directing you to answer anyway.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. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. Doctor. to be sure you are clear about the question.” The break gives you ample time to think. we are going to take our midmorning break right now. I seriously recommend that you try to look as if you are thinking to clarify for the jury what this pause in the proceedings is all about and to allow those jurors who have dozed off to be awakened by the sudden silence. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . a question will require more time for prolonged thought or searching of your memory. to consider your answer carefully. the attorney may quote something that you wrote or lectured on. Breaks During breaks that occur in the middle of cross-examination. say it. or have you dozed off? It is best to state. The key word is truthfully. Quotes On cross-examination. and think seriously about whether yes or no will represent the whole truth. and to allow your attorney to object. a judge may even decide to declare a recess: “While you are thinking.” “no.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. consequently. You took an oath to tell the whole truth.

you may have written a report after reviewing some quantity of material. such as the discovery that you have left a key document in your suitcase across the courtroom or. and some additional material may have come your way just before the trial (which. or inadequately grounded in data. Use your own judgment and knowledge of your biorhythms. 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. These include biological and physiological crises or circumstantial ones. Subsequent communications may be labeled supplementary reports to keep the sequence clear. Crises Various crises may strike while you are on the stand. The thrust of this line of questioning is to convey that your opinion is premature. Later. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. Some experts want to call their offices during breaks. For the lunch break. had it changed your opinion. This change is as it should be. The Final Opinion During the course of expert consultation. An aid to this conceptualization is to label your first report. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. but let’s assume it did not). you may have been deposed. Now you must testify on the witness stand. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. you have confused loyalty to your attorney with the oath to tell the truth. 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. if requested. is your actual trial testimony. the one that counts. even worse. . In theory. because it is based on data. The cross-examining attorney may make an issue of the fact that you had not seen a particular document or known a particular fact before you gave your opinions in your report or deposition.86 THE PSYCHIATRIST AS EXPERT WITNESS. your opinion. incomplete. others find telephone calls distracting and let whoever is covering for them handle things. as a “preliminary” report. SECOND EDITION sions with your own personal lawyer are protected). Your final opinion. you would have been obligated to so inform your attorney. in the trunk of your car.

“You (or the witness) may step down” or “Thank you. it is preferable just to hang in there. The judge will almost always grant this.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. and go. or emit other social behaviors. On occasion as I have left the courtroom. and serious distractions impair your work. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. to see the outcome. Forensic etiquette requires that you just leave. at odds with your objectivity. when you are through. The End of the Affair Finally. you seem to be acknowledged . Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. it invariably conveys the strong suggestion of partisanship. one of the parties or even one of the attorneys reaches out to shake my hand. and sit more upright to relieve tension. Deal with the problem and then continue with your task with restored focus. wave at the jury box (“So long. you exit. Do not stop to chat or debrief with the attorney. Ask the judge if you may take a brief break for personal reasons. More troublingly. Doctor. While this is a common and respectful courtesy. If you do shake hands. conservativeness is probably better (the discreet nod rather than the glad-hand wave). “Thank you. This behavior conveys too much interest in the outcome for someone who is not a party to the case. by needing to go to the bathroom. Do not hang around to hear what other witnesses say. for example. childish. stretch your limbs behind the screen of the stand. Your job as expert is important to the case. If a delaying tactic is not used. or to learn of other subsequent activity. sickly. that’s all. Do not be inhibited by fears that. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. measured breathing. Focus on slow. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. as always. Some more extroverted experts thank the jury out loud. No one knows the effect of these gestures.” At this point you say.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). and both grudgingly acknowledge that neither has any more questions for you. nod politely to the jury. fans!”). entitled. What do you care what happens? You only testify under oath. Your Honor. you will appear inept. get down from the stand. or weak. it poses a dilemma of a no-win situation. The judge dismisses you by saying.

“juror countertransference” toward the attorneys. by letter or telephone. as always. if you do not or you ignore the outstretched hand. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. some forget. while acknowledging that experience is still. 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.88 THE PSYCHIATRIST AS EXPERT WITNESS. as much as possible about what happened and why it happened. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. For your personal development as an expert. however. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. SECOND EDITION for good (but partisan) work. 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. you seem rude. Surprisingly. J Psychiatry Law 28:235–251. this task is for the lawyers. Because this brief volume can serve only as an introduction. Gutheil TG. Forces beyond your control and outside your testimony—such as the demographics of juror selection. Take only your report. A far more detailed analysis of testimony can be found elsewhere (5). Most courteous attorneys will inform you later. References 1. If you have traveled far with a heavy load of database materials. the best teacher. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. always seek feedback and reactions to your participation. 2000 . Finally. and the like—impinge on trial outcome. It is perfectly appropriate after some time has passed to call and ask the outcome. 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.

The Expert in Trial 2.


3. 4.


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

Suggested Readings
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



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.

Scheduling Issues
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

for example: “Doctor. add another layer of challenge. I can’t imagine my direct examination taking more than an hour. hours. SECOND EDITION for months without any forensic activity whatsoever. I know you have a busy schedule. Trials take first priority. requiring two parties to match schedules.” in this volume). so let’s put you on first at 9:00 A .M.e. and telephone calls to resolve them.” Smile politely when you hear these words but make expansive plans. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. 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. You may have a little room to maneuver in terms of the order in which you testify. sharp. the trial should take precedence. The tension here is that some courts. Large numbers of people are involved. As a rule of thumb. The second priority is depositions. theoretically. but during the very week that you have scheduled four weddings and a funeral. flexible. and accommodating. If a trial and a deposition are scheduled for the same time. Because your reports can be done at any time of the day or night. he or she will be exerting the greatest efforts to make it all work out. the other side may be willing to have your testimony inserted into their side of the case. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. others are not. In extreme circumstances. a forensic interview. of course.92 THE PSYCHIATRIST AS EXPERT WITNESS. with suitable preparation of the jury. You can count on your eyeballs the number of times this clockwork model actu- . cancellation) is as follows.. Because your attorney has the most interest in your presence. attorneys.. which also require several people to synchronize their schedules. but things happen. You’ll probably be cross-examined for 1. maybe 2. although obviously fewer persons and a shorter time frame are involved than are for trial. You’ll be out of there by lunchtime. the hierarchy of urgency and therefore attempted postponement (or at worst. court dockets are crowded and leave little flexibility. comes before a report. tops. “The Expert on the Road. The last two priorities are interview and report. and other-side attorneys are reasonable. negotiation. with a deposition for a third case. and serious matters hang in the balance. You must do the best you can with what you’ve got. An attorney who planned to have you “bat cleanup” (i. Travel glitches (discussed in Chapter 10. This type of schedule is close to reality. two trials in different states will be called simultaneously.

Commons ML: Trading forensic and family commitments. 2. 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. (More suggestions on scheduling are included in Chapter 10 in this volume. The attorneys wrangle over whether some document relevant to the next witness is admissible. Why? Although some judges are scrupulously punctual. Gutheil TG: “Paraforensic” aspects of expert witness practice. difficult choices may have to be made. 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. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. J Psychiatr Pract 12:50–54. However. American Psychiatric Publishing.M. a judge will treat the time between 9:00 and 9:30 A .Some Pointers on Expert Witness Practice 93 ally occurs. Although my colleagues and I tried to study this issue formally (2). 1996 Suggested Readings Gutheil TG. 2006 . 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. negotiation may be possible for some scheduling conflicts but not always.) 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. 2002 Reid WH: Forensic practice: a day in the life. it is not uncommon for an out-by-noon case to extend into the next day. Thus. References 1. DC. and family. In the end. J Am Acad Psychiatry Law 32:356–358.” In addition. the odd juror gets stuck in traffic. partner. Gutheil TG. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. some are not. 2004 Kearney AJ. no clear conclusions can be drawn. Washington. Bull Am Acad Psychiatry Law 24:533–546. The jury takes a long midmorning break.

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to serve as a witness. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. 95 . The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. 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. some basic principles on letter writing to the court are described and are not repeated in this chapter. In The Psychiatrist in Court: A Survival Guide. I focus on writing the full-fledged forensic report. In this chapter. allowing careful legal analysis and reflection on whether you will be helpful on the case. for a worker’s compensation claim. In all such cases. an attorney. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. or to serve on a jury. a defendant’s criminal responsibility. or for a disability determination. or a full evaluation of a person’s competence to stand trial.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. a description of an independent medical examination for a personal injury suit. or a physician’s deviation from the standard of care. a court.

then. For similar reasons. which presents your database and conclusions only.D. simplicity. the report may present materials or approaches that the attorney does not wish to share with the other side. In this chapter. Forensic report writing. brevity. It should stand alone. Phillip J. According to Dr. may take three major forms (with variations possible. because the first is self-explanatory and the second is an extract of the third. painstaking preparation. all should govern the form of the report. Resnick also identifies the “four principles of good writing”: clarity. M. Critical documents should be briefly summarized within the report. “Reports should be self-sufficient. the attorney may ask that you not furnish a report. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. SECOND EDITION Alternatively. for which I am most grateful (where I cite his material. Resnick. In other situations. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. . I refer to him explicitly in the text). and 3) the full. Obviously. General Remarks The report as a whole should meet certain criteria. which in that jurisdiction is discoverable by the other side. without detailed discussion of the bases or reasoning behind those conclusions. Resnick. I emphasize the third form. 2) a summary report. and meticulous proofing and review of any report you produce. Consequently. which states all of your conclusions and the analysis of all the relevant substantiating data.96 THE PSYCHIATRIST AS EXPERT WITNESS. These are all powerful arguments for careful thought. 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. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. and humanity. of course): 1) no report.. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit.” Dr. the reader should be able to understand how the opinion was reached from the data in the report. Without referring to other documents. detailed report. has generously and graciously granted me permission to cite some of his advice on report writing. Despite these useful functions. It should contain everything that you need to support your opinion and no irrelevant material. It should be just long enough to cover the essential information but not so long as to exhaust the reader.

One model by Dr..” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). or State v.” Some attorneys. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . or the type of case in a civil matter (e.. Resnick is included at the end of this chapter. and depositions.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report. emotional injury or psychiatric malpractice). testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses.. Identifying data can be presented in a number of ways. use a standard business letter format. the case or docket number if known.g.g.. John Johnson). I examined (name of examinee) with regard to (forensic issue). . In that case. think of your report as a memorandum and use a standardized format..” The Database After identifying the occasion.. One way is to provide the case citation or caption in whole or in brief (e. that is. Include any interviews per- . The heading should also include your letterhead and the date of the report. reasoning that the occasion is obvious from context.” • “I examined Ms. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. otherwise. Smith v. 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). additions.” and subsequent contributions. Jones et al. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents.. legal pleadings. of the report should address the question of why you are writing this report. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. the charges in a criminal case. police reports. or emendations should be titled “Supplementary Report. The Occasion The occasion.. sometimes called the referral.

logical grouping (e. A typical conclusion in a malpractice case. 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.. held to a reasonable degree of medical certainty. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . It is important to couch your conclusion in the explicit jurisdictionspecific language defined in case law or statute (your lawyer should inform you what this is) and to state it according to the standard of reasonable medical certainty (or its local variant) to render your report material and admissible. (or. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials.98 THE PSYCHIATRIST AS EXPERT WITNESS. 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. chronologically. it is my professional opinion. including interview data) and your total clinical background of training (what you were taught) and expe- . all depositions). The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. or according to some natural. all medical reports. The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge. for example.. 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. the overall basis is described as both the database (all the material reviewed in the case. about the disposition. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). The documents may be listed alphabetically. The remainder of the report is thus treated as optional reading. Note the wording. First. that. no convincing case has been made for the inherent superiority of either approach. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience.g. you are free to choose your favorite. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. SECOND EDITION formed and their date and length. attorney. in the treatment of (plaintiff ). .

malpractice.” In every case. although representing the core of your opinion. 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). it is predictable that plaintiff and defendant tell different stories. this section should contain extracts of previous material directly supporting the points you are making. effectiveness. offer alternative opinions. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. Supporting Data After the conclusion. sometimes frankly contradictory. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. Third.. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. more likely than not). be it competence. In criminal cases involving the insanity defense. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. Resnick explains. “Reasons supporting opinions should be clearly and fully stated. Remember that the conclusion.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). standardized legal language). Dr. the expert should scrupulously avoid assuming one side is correct. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. Second. If your conclusion comes at the end of the report. or other. “If there are two versions of the facts. your conclusions should be presented in . but occasionally. usually.e.” Multiple Realities In civil cases. sometimes different spins on the truth. In these cases.. insanity. If your conclusion is stated at the outset. you can present the supporting material in several ways.e. and credibility as an expert witness. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. The reader should not have to use his/her own inferences to understand the point. the defendant usually has admitted the act for which he or she is charged. As Dr. Resnick states. 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. Dr. is essentially boilerplate (i. Finally.

These are not weaknesses of the report. A challenging gray zone is negotiating about wording. summarizing. money. then . SECOND EDITION the following form: “If the allegations are true.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. you may receive requests to alter the report in some ways. which make for a stronger report. it is essential that you identify and remain ready to testify under oath to such contradicting factors if asked under cross-examination (or direct examination for that matter).. Whichever approach you actually take in your written report. but generally there is no inherent problem ...” This approach prevents your seeming to side with one party in the case. Constraints. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. and Rebuttals If there have been any constraints of time. There is no absolute guideline for this procedure. or agency for which it has been prepared. or data (such as inadmissible material.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. Some requested alterations are fully ethical.if defendant’s version is true.. asking for the addition of new material not supplied to you earlier.. Limits. (Remember you must be candid about everything you believe to be true. these should be recorded. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. judge. then . on the contrary. and deleting. or to change the substance of your opinions. interview of plaintiff blocked by attorney. it would be a weakness not to acknowledge these factors candidly. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. some are not. to alter or misrepresent facts in the database. A case example was discussed in Chapter 3 (“First Principles”) of this volume.100 THE PSYCHIATRIST AS EXPERT WITNESS. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. then . Postreport Negotiations After your report is finished and has been sent to the attorney.. even if it has been removed from your report for brevity. and shortening the report by aggressive editing.

10. 15. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. extremely likely). 7. 12. 8. 2. 16. 14. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. You also may ask to see a senior colleague’s report under an agreement of confidentiality. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 4. . very likely. intensity (likely. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. 11. 13. 6. 9. Resnick’s outline for a typical criminal report. The Criminal Report: An Example The following is Dr. 17. and effect of emotional injuries—three common problem areas.1 1. Identifying information: Source of referral: Referral issue: Sources of information: Qualifications of the examiner: Statement of nonconfidentiality: Past personal history: Family history: Sexual and marital history: Educational history: Employment history: Military history: Relevant medical history: Drug and alcohol history: Legal history: Psychiatric history: Prior relationship of the defendant to the victim: 1Used with permission. Be careful about changing wording concerning issues of causation. 5. but it may get you started.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. 3.

Petrilla J. 1986 Melton GB. pp 511–528 . in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. New York. 22. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. Wiley. 20. Hess AK. SEAK. 25. 23. Edited by Weiner IB. Guilford Press. 1987. New York.102 18. Am J Psychiatry 143:164–169. 2007. in Handbook of Forensic Psychology. 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. pp 577–605 Weiner IB: Writing forensic reports. Falmouth. 24. 21. MA. Poythress NG. 3rd Edition. 19. report writing and expert testimony. THE PSYCHIATRIST AS EXPERT WITNESS. et al (eds): Consultation.

and we drafted an announcement.) 103 . Unfortunately. such an affiliation would mean that we would be able to say to any attorney who called us. In this chapter. “Yes! We (or the corporation) will take your case. to connote the Harvard connection). In addition to the (largely fantasied) corporate benefits we dreamed we would derive. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. We sent this announcement to every attorney we had ever worked with. and inefficacies.” The ability to say yes to all comers seemed like a good idea at the time. a letterhead. heard of. (I believe this excluded only admiralty practice and the law of the sea. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. and a typeface for our official stationery. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. We will let you know shortly which of our directors will be working with you. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. embarrassments. We retained an industrial designer to help create a logo (highlighting crimson. In the late 1970s.

e. SECOND EDITION All this effort did nothing. Most recipients almost certainly awarded our announcement the coveted circular file disposition. clinicians) led to forensic referrals: word of mouth. and pride and confidence in your work versus hired gun certainty or grandiosity. write. The Delicate Balance In all approaches to marketing. thought. for example. opportunistic.104 THE PSYCHIATRIST AS EXPERT WITNESS. inform. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. The balance must be struck between dualities such as generating word of mouth versus hucksterism. is suspect and not reliable as an approach (see also Chapter 4. . commercialized hustling for business—or the appearance thereof. 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. list. and expense resembled our own responses to offers that come in the mail to sell us insurance. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. “Types of Typical Cases. Based on this reasoning.. word of mouth). The result was tantamount to letting a drop of water fall into a large lake. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. but the net effect for all this time.” in this volume). Support for this theory came from Harvey Research in 1994. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. and unspecialize. that is. speak. Ordinary advertising in Lawyers’ Weekly. We received a few form announcements from two or three firms about their offerings. an expert’s marketing strategy shifts to generating favorable word of mouth. The problem with some forms of getting the word out is that you may not know how a particular listing is regarded within the legal field. The Key Approach As time went on. sharing useful information versus being pushy.

3) attorneys. or other reasons. hand it out at a lecture. and send it to attorneys and clinicians. including listing services you are not truly expert in. For your clinical peers. If you are moving into a new town. Among other roles. previous associations with the attorneys on the other side. Some experts replace the announcement with a minibrochure: a single. trifold sheet of fine paper with a brief description of the expert and the services. too little time. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. or use it in some other appropriate way. you may wish to send a short. in effect.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). judges may need your services. First. the announcement should display the professionalism that you plan to bring to the work. Alumni bulletins and class reunions are also opportunities to get the word out. the GAL may do a preliminary survey of the psychiatric aspects of a case. Describe those services you can authentically offer. Serving as a guardian ad litem (GAL. Although your forensic peers may seem to be your competition. they may think of you at that point. Thus. Finally. of course. and 4) judges. they will be useful to you in several ways. 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. they may turn away a case because of a conflict of interest. polite letter informing local judges of your availability for forensic services. . a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. Avoid any hype. 2) your forensic peer group. Opposing attorneys. and lawyer neighbors and friends who might pass your name along. informative. and factual. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. it should be tasteful. It is unclear whether the brochure is superior to the announcement and may be better utilized as the second item of information sent after an initial communication. Attorneys whom you can inform include your own attorney. If you inform your peer groups about your availability. if you have one. then reporting to the court. will see you in action in deposition or trial. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern.

Finally. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. these publications may be explored. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). In my opinion.106 THE PSYCHIATRIST AS EXPERT WITNESS. however. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. departmental conferences. Admittedly. 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. Although it is useful exposure and a valuable resource to write an analysis. such as clinicians and lawyers. Become active in your district branch legislative committees and processes. both of whom may be potential referral sources. and similar humiliations. The APA Public Affairs Office provides some guidance in dealing with the media. Your podium demeanor may convey at least a little about your expected performance on the witness stand. sign up as an entry in an existing lecture series. or established continuing medical education programs. which are often seeking a stable of experts to comment on medicolegal stories of the moment. review. . One reference. ambush journalism. the topics of which appear on the screens of attorneys’ computer searches. may be helpful in dealing with the media. Beat the Press (2). many referrals to psychiatrists come from publications. You will be exposed to attorneys and legislators. or commentary and have it published. no one will show. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. SECOND EDITION List Listings can be effective as well. and media exposure may open you to crank calls. Instead. but the wounds of experience are probably and ultimately the best teacher. 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. try to become involved in local media such as call-in shows. this skill is acquired. such as hospital grand rounds. Write In our computerized modern age.

certifica- . even at the outset. no matter how slight the issue. as it were—but the Web site is perhaps the most explicit. and other aggrandizing statements that are. but you will obtain valuable exposure. some critical considerations are the following: 1. What About Web Sites? In the modern era the use of Web sites has increased for all professions. It may then take you years of work to unblemish your reputation. Consider taking on some pro bono work as well. Begin your career by unspecializing. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. place in the profession.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. 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. three novel but common questions in the qualification phase of the modern deposition are: Do you advertise your services? Do you use expert broker organizations? Do you have a Web site? All of these associations can be used in attempted impeachment—for example. extremely public. and your course as hired gun may be marked. training. some broker organizations guarantee your opinion. Have the site professionally designed with attention to taste. In the same vein. I will work only on high-profile. Be extremely careful about posting your qualifications. No case too small. modesty. including this one. wherein you follow the ancient maxim. and interest. one turn to the Dark Side of the Force. In fact. widely publicized mass murders. Conservatively stating your incontrovertible credentials (actual appointments. based on your fine performance at the deposition. Do not bend the truth to satisfy the attorney. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity.” This is a losing strategy. You will derive no income. It does not matter if the case is trivial or small potatoes. by definition. If you decide to use a Web site. Beware of making or seeming to make extravagant claims for your knowledge. trivial cases allow you to be observed in action by potential employers. a point that cannot be overemphasized. integrity must be your watchword. skills. 2. Even minor. 3. From the absolute onset of your career. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case.

sound. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. In analogy with clinical referrals. 2003 Fulton S. recall the value of brokering. but no other method is as reliable. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. . UT. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. American Book Business Press. choose only those experts whom you would be confident to have on your side if you were being sued for something. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. 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. but its importance cannot be overstated: return telephone calls promptly. Additional Pointers The issue may seem trivial. but I will take it upon myself to find somebody good who can.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). specific required expertise). Remember to thank your referral sources. you are also revealing yourself as a good first stop on the search for a good expert. You are saying to the calling attorney. 2002 2. Sadoff RL. SECOND EDITION tions. Building a practice on word of mouth is slow. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. J Psychiatry Law 31:5–19. and demanding of patience.108 THE PSYCHIATRIST AS EXPERT WITNESS. “I can’t take this case (because of time. at times trying. Salt Lake City. and effective. Finally.” Although you are feeding the competition. etc. Return telephone calls are the easiest marketing device and one of the most effective. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. Dattilio FM. Guyant A: Beat the Press. conflict. for referrals. References 1. including attorneys and fellow clinicians. publications.

Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. Massachusetts. CO. WW Norton. Tageh Press. 1997 Feder HA: Succeeding as an Expert Witness. . these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. Inc. New York. out of Falmouth. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. Glenwood Springs. I disclose that I have lectured for SEAK numerous times over the years..

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In this chapter. the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips. or interviews. The author is indebted to Robert I. M. Simon. 111 .D. this chapter will be too obvious and not relevant to your needs. I address some tips and strategies for the expert who is inexperienced in traveling to cases. As always. M. and opprobrium..D. 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. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices.. examinations. mockery. seasoned travelers may skip the chapter entirely. William Reid.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 his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter.

112 THE PSYCHIATRIST AS EXPERT WITNESS. looks professional. especially in flight. polished shoes for men and women). you must assume significant time delays and be prepared for your time commitment for court appearances to go into a second or even third day. Some General Recommendations Travel Information Travel guides are available everywhere. 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. testify or interview the next day. travel agents. matches. Still other guides are provided in the suggested readings at the end of this chapter. Running shoes also allow you to sprint through airports to . to ensure that it still fits. and general information can be obtained from books. and is in good repair. 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. the process takes even longer. you may make the appropriate adjustments. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. Some experts like to subscribe to an official airline guide for creative problem solving if they are marooned in distant locations because of altered or canceled flights. stay overnight in a hotel or similar setting. and hotels directly and save you much time and stress on the telephone or online. Alternatively. and one pair of shoes. cars. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. Try on everything before you pack it. For cases that involve land travel. and your colleagues. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. Opt for crushproof fabrics and materials whenever possible. the emerging online travel services (Expedia and the like) may prove useful. on rare occasion. Consult with significant others for their opinions if needed. These services can book flights. and return that day or the following one. the Internet. Another useful reference is Jet Smart (2). especially if you have not worn it for a while.

you may bill for that time but not for the ticket because the first case paid the whole trip already. which are. If the trial runs longer than a day or so. Until data emerge. 1 day at your day rate. or 2-hour long-distance calls to your paramour. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. in-room movies. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. Avoid checking baggage if you can.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. for one telephone call to the family. rare but extremely stressful when they do occur. Separate business from personal comfort. If you review a different case on the way back. do not bill separately for that work because you are already being paid a day rate. Seek equitable division of costs for multiple-case trips. because some law firms are slow to reimburse hotel and plane expenses). It is possible. do not bill for sleep (you do it anyway).. 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. massages. the literature is relatively unhelpful (the issue of double billing. The Ethics of Billing Bill strictly according to your fee agreement. for one or two telephone calls per day to the office to check on things. You have enough to worry about . A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. if you are flying to a case and use air travel time to review the case. and for the regular three meals.g. is addressed nowhere in the forensic literature). you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. for example. to pack for 2 or 3 days of travel and bring most of the key documents in a case along for review while remaining in full carry-on mode. For example. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. but not alcoholic beverages. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. a useful principle is to avoid double billing in any form. fortunately. then.

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. do not skimp or economize on the roll-along suitcase. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. The Kit Whether you call it a travel kit. and pack the rest of the gear. a small roll of duct tape. but you may wish to experiment with a friend’s suitcase. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. A small. remedy. Alternatively. In general. such as a variety of buttons and threads to match your clothes. a small. not to mention the current airline custom of charging extra. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. and cleaning. multifunction “pharmacy” also should be included. you may opt to wear the suit or outfit on the plane and guard it in transit. it is indispensable to your successful travel ventures. In addition. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. the principle of multiple function is one of the basics of a dynamic understanding of mental life. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. antacids. and string. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. It is definitely a basic principle for assembling your kit. makeup bag. extra shoelaces. decongestants. even under the seat in some cases. and rubber bands. stain-remover sticks that do not contain toxic petrochemicals. which may also be prepacked. Other useful miscellaneous items include adhesive bandages of various sizes and types. Current travel restrictions have shifted the allocation of liquids. safety pins in various sizes. . What you take should have similar versatility. or toiletries case. and similar medications. Remember also that your kit should contain items that permit repair. extra eyeglasses or contacts if you wear them. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. with a little applied topology. These should include sewing items. Wear your workout or running shoes on the plane. eyeglass screwdrivers and replacement screws.114 THE PSYCHIATRIST AS EXPERT WITNESS. Dopp kit. and creams to quart-size plastic bags. In psychoanalytic theory. light flashlight for power outages and searching under beds for lost items. these roll-alongs often fit either in the overhead compartment or. lotions. and extra combs.

Emergency Items Neurotic fears can certainly flower when you travel. The latter appears at first glance both socially desirable and economical. institutional hotel or motel and cadging free lodging with friends or relatives in the area. This item is available through a number of catalogs. experienced travelers can skip this discussion. procedures. You breathe through a filter that lasts long enough. although occasionally. or order special low-fat meals. Almost all modern hotels in the United States have smoke detectors. because someone else is paying your way to the location. The traveling expert is sometimes torn between staying at a cold. and special arrangements.” this discussion will be helpful. I recommend the hotel or motel for several reasons. you are undistracted by social obligations and family strife or background noise. Drink water steadily to avoid travel dehydration. testify. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. in theory. as well as extra disks and the instruction manual if not on the hard drive already. it is more professional to meet with your attorney the night before the . Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. Besides a small flashlight. but some precautions seem sensible. for you to get out of the toxic smoke and gases to safety. fails). First. Second. Secrets of Staying If you are unfamiliar with the expert art of “fly in.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. often hooked to a travel alarm clock. on very dry flights. but you can buy your own compact version. Seriously consider avoiding airline food entirely. call the airline early to check on facilities. I carry a compact “smoke hood. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. remember to carry light extension cords and voltage adapters. fly out. try breathing through a moistened towel for short periods. If you have a disability.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire.

or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. after I put down my luggage. nausea on the witness stand also may be misinterpreted. but not all. Don’t forget to set the room thermostat to your accustomed household temperature. the air is invariably dry in most hotels. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . My first move on entering a hotel room. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. 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.116 THE PSYCHIATRIST AS EXPERT WITNESS. of course. a business trip. 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. Some. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. and headachy on the stand. . 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. is to make a beeline to adjust the hotel’s alarm clock or clock radio. obviously you should eat lightly and stick to what is familiar to you. Experimenting with culinary exotica is asking for a case of turista at worst. after all. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. It is probably safest to avoid all alcohol during the trip before testimony. Secrets of Eating In traveling to court. Remoisten it as needed. A simple but effective method is to soak a washcloth or hand towel in cold water. if desired. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. 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. back up the call with your travel alarm. have your martini on the airplane home after it is all over. After the trial. congested. an essential part of effective testimony. hotels provide irons.M. Whether the room’s air system is heating in winter or cooling in summer. My second move often is to arrange a do-it-yourself humidification of the room. SECOND EDITION trial in a hotel room or conference room. this is. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. If a paper clip or safety pin does not suspend the cloth or towel well.

White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. but all the data are not in.M. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. Ordinary AM radio static and the sound of surf are two examples of white noise. or similar terms. by using either alcohol or sleeping pills (barbiturates. and with sleeping pills. just as white light contains all color wavelengths. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. also eat lightly. Many travelers find it helpful to block out morning sunlight with the drapes. the chatter of housekeeping staff just outside your door) is white noise. without aftereffects. Examples include prescription medications that you need during the course of a long day. hot baths. usually described in catalogs as “sound soothers. of course. you can have a serious meal without ill effect. What to Take to Court Courthouses are notably lacking in amenities. When you are up and awake.. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . and similar relaxants. benzodiazepines. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. or even a different time zone. spending some time in direct sunlight may be helpful in adjusting your biologic clock. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. I recommend it. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. including hangovers. Catalogs sell portable battery-operated white-noise generators. Far better results accrue from sleep hygiene maneuvers. plan your trip to allow time for recovery from jet lag. so you may have to carry some supplies in your pocket or purse. as noted. actual memory loss can occur—the last thing you need. 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. These have ill effects. or others) at bedtime. stain . breathing techniques. After court. This term refers to sounds containing all frequencies.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. When possible.” sleep sound machines. either by closing them completely or fastening gaping fabrics with safety pins.

I hope that these tips make your travel easier and less surprising. J Am Acad Psychiatry Law 26:21–26. I welcome your suggestions and favorite travel tips. Jossey-Bass. SECOND EDITION removal. Ten Speed Press. 3. Berkeley. CA. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. 1994 (An excellent guide to what to take and how to pack it. 1996 . CA. 2001 Simon RI. with the emphasis on safety and security issues. and a headache remedy for the obvious problem. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. 5. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. 1988 (Incredibly detailed.: Expert witness travel dilemmas: a pilot study of billing practices.) Savage P: The Safe Travel Book. Although some of the pointers in this chapter probably state the obvious. or throat lozenges.118 THE PSYCHIATRIST AS EXPERT WITNESS.) Gutheil TG. Berkeley. Magellan’s International. Commons ML. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. 2003 2. San Francisco. cough drops. References 1. James E: The Secrets of Simple Packing (VHS videotape). 1998 Gutheil TG. New York. Psychiatric Annals 33:302–306. Commons ML. Flying Cloud Publishing. Celestial Arts Publishing. WA.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. CA. sample wardrobes and general travel pointers included as well. or refreshment. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Santa Barbara. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Villard.) St. Seattle. 4. et al. J Am Acad Psychiatry Law 29:202– 206. Revised. mints. Miller PM: Expert witness billing practices revisited: a pilot study of further data. Slater FE.

I welcome comments and suggestions from readers to correct. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). The better we are at meeting the courts’ needs with ethical. On the other hand. or have taken too much for granted about your background and experience in any portion of this text. (American Psychiatric Publishing 2002). M. or render this text more useful. which I cowrote with Robert I. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness.D. As always. the reader. The Psychiatrist in Court: A Survival Guide. If I have made too many assumptions about you. Although some forces in society. That book may fill in some of the blanks. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. and helpful testimony. decry the expert witness function and voice arguments for its abolition.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. the more we serve this valuable and necessary function. from all evidence. if you wish to take your work to the next level. including our medical colleagues. expand. the courts will continue. consider reviewing the successor volume to this one. Simon. to require our services in increasing numbers. consider first reading the companion volume. 119 . effective.

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supplied for consideration. and the examinee’s attorney’s attestation that the examinee understands the form (i. 121 .e. The main points about the form are the use of basic language. I read it or have the examinee read it at the start of the interview and answer questions.. clarification that the forensic examination is not the practice of medicine. is likely to be competent to consent to the interview).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.

Gutheil is a physician and a psychiatrist. or have no effect on my case that I can see. I agree to give up my rights to have Dr. I understand. however. the person who has signed at the bottom of this letter. Gutheil will explain or has explained to me and I understand that Dr. Gutheil keep secret what I tell him. Gutheil. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. nor will he suggest any treatments to me or for me. . 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. I understand and agree to additional repeat. or out loud in open court in a trial. This means that Dr. SECOND EDITION Consent for Forensic Examination by Thomas G. I understand that Dr. During this interview or interviews I will be asked a number of questions about myself. Gutheil’s written report or out-loud statements for court may help my case. in spoken depositions (where lawyers ask him questions). Gutheil may write that down for the record. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows.122 THE PSYCHIATRIST AS EXPERT WITNESS.” or “update” interviews of me by Dr. Gutheil”) I.D. 4. agree to have an examination by Dr. the following: 1. M. and I understand. and I understand that no one can know which one it will be in advance. Dr. “follow-up. Gutheil’s questions. I understand that I can take breaks if I want to at any time during Dr. Gutheil. The examination will be one or more personal interviews. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. Gutheil will not give me any medical or psychiatric treatment. Dr. 3. in connection with my legal case. Gutheil will explain or has explained to me. Dr. I understand and agree that Dr. I also understand that I am not his patient in connection with or because of this interview or interviews. I understand and agree that Dr. . most of which will be very personal. Dr. if needed. 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. Thomas Gutheil. that he is not acting as my physician or psychiatrist in doing this interview or interviews. (“Dr. I agree to be interviewed. and I understand they will be part of the same examination and will follow all the above rules. Because I am being interviewed in a legal matter. but if I refuse to give an answer or some answers. hurt my case. 2. Gutheil’s interview or interviews. Dr.

Appendix 1: Consent Form for Forensic Examination 123 5. he/she appears competent to understand it. I certify that I have answered any questions my client asked about the procedure. of course. 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. Gutheil’s retaining attorney. Attorney for examinee Print name Date day of . Dr. to my assessment. 20 . Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Signed. or the court as provided by law. a court officer. that individual is.

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Standard Letter of Agreement by Thomas G. $ for depositions. rescheduling is at mutual convenience. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. Dr. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. Gutheil”) 1. including portal-to-portal local travel (c). and $ per hour for trial. at a rate of $ per hour plus expenses. (d) 125 . Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. Gutheil. Gutheil shall be reimbursed for all time spent on the case.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). M. and the same due for cancellations that occur less than 72 hours in advance. (“Dr. the radical revision presented here has evolved from that in the first edition for the same reasons. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer.D. in addition.

4. Gutheil. Gutheil by name (h). The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. Payment in a timely (g) manner. Dr. and examinations as discovery rules permit. Signature below indicates agreement with all (r) these terms. is the sole responsibility of the retaining attorney or insurer (i). as an advance against which expenses are billed (p). leaving the retaining attorney or insurer individually liable for any unpaid balance (m). 5. 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). 3. The retaining attorney understands that my forensic work is not the practice of medicine. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. including travel by first-class conveyance and appropriate lodging if needed. (q) 6. prorated (k). Gutheil will be unavailable for testimony in person during the month of August (f ). Please note that because of vacation scheduling. please return one copy to Dr. Signed. Before such travel is undertaken. and as a condition for its specific to this travel is exbeing undertaken. Attorney or firm representative as individual and on behalf of firm (signatory shall have the power to bind the law firm with regard to his contract). For out-of-state travel. Failure to comply may void this agreement except for duties of confidentiality (l). any existing balance shall also have been paid 3 business days before departure (e). A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case.126 THE PSYCHIATRIST AS EXPERT WITNESS. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. a retainer of $ pected 3 business days in advance. materials. (s) Note: Please send all case materials to (address) Date . Dr. irrespective of case outcome (j) or defaulted appearances. For out-of-state evaluations or testimony. made out to Dr. Gutheil’s FID# is . Overdue accounts may accrue interest at 6% per annum. SECOND EDITION per day 2.

Doc. You are initially retained as a consultant. based on their training.Appendix 2: Standard Fee Agreement 127 Annotations a. or even retain another expert. h. that does not mean you should not be paid for the work already done. c. noncontingent. or trial. take a videotaped deposition. others the same. you may decide to withdraw. g. If you are the sole proprietor. j. k. thus.” d. l. For unexplained reasons. or trial travel. b. this statement makes the attorney agree to that possibility. Some attorneys. If you do withdraw. deposition.” 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. will throw up their hands in mock exasperation and say. Working for the client. this clause makes that explicit. This is a standard rate of interest on overdue accounts and an incentive for timely payment. moreover. it saves everyone time and heartache if you spell it out. n. If the retaining party is relentlessly slow. A case decision that goes against the side retaining you is not grounds for nonpayment. dunned for appropriately earned fees. Because you will be investing a fair amount in the travel costs. 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). You must be free to withdraw from the case if the contract is breached. To cut through nit-picking. You have the right to request timely payment to prevent excessive backbalance buildup. “Consideration” and “agreeing” are trigger words that signal to attorneys. for review. I recommend asking for this secondary retainer before travel. deposition. make that clear so that you don’t waste a lot of time swapping checks between payees. m. e. can constitute a bias. Every agreement must have an exit clause such as this one. This information frees up the attorney to ask for continuance or rescheduling. or a member of a corporation or group practice. attorneys are sometimes slow to reimburse travel expenses for interview. “portal-to-portal. . i. “You’re right. If you know when your vacation is. Some experts charge differing rates. that this is a formal contract. Your fee is. 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. but what can I do? That client just won’t honor his or her obligations. f.

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. You are here agreeing to accept signature from a different attorney or a paralegal. making you ineligible for participation with the other side. s. On rare occasions. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. some experts simply submit additional invoices. for example. alas. r. ask for their retainer back. identifies the attorney’s understanding that this is not the case. legal. and ethical incompatibilities. You have been sandbagged. . others ask for a second retainer (see also Appendix 3 in this volume). Moreover. because you did no work. if the attorney is out of the country. Making the retainer nonrefundable tends to eliminate such shenanigans. q. and. When this retainer is depleted. or has left the firm. parallel with the forensic consent form in Appendix 1. has handed the case to another attorney. at no cost to the attorney but at lost time and possible income to you. SECOND EDITION o. Such attorneys may pay the retainer. after settling the case.128 THE PSYCHIATRIST AS EXPERT WITNESS. p. The retainer is not only a means of establishing the contract but also an actual advance against expenses. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. give you no work to do. The wording here. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. these events do not weaken the contractual ties with the firm. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which.

if it appears that substantial services are yet to be rendered. I may require an additional retainer. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. 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. and report preparation. Psychiatric services may include an initial consultation. LARRY H. psychiatric interview or evaluation. 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. interviews with family members or other persons. STRASBURGER. M. review of records. the hourly 129 . Any credit balance remaining will be refunded upon the termination of my services.D. If travel from my office is necessary to perform any of these services. consultation with counsel. This retainer will constitute a credit balance until exhausted.

please so indicate by signing this letter and returning it to me with your check for the retainer. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. I will send you a monthly statement. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. including secretarial service. 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). messenger services. court rule. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. Nor shall such failure relieve your obligation to have on deposit. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. Any excess over the retainer balance is due upon receipt. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. SECOND EDITION rates will apply to portal-to-portal travel time. court order. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. long-distance telephone calls. Larry H. American Board of Psychiatry and Neurology Diplomate. M. the retainer discussed above. literature research. Strasburger. Please keep a copy of this letter for your records. postage. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. expert or otherwise. as prescribed by statute. All travel shall be by first-class conveyance. no refund of the retainer deposit will be made. Sincerely. etc.130 THE PSYCHIATRIST AS EXPERT WITNESS. 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. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . If the foregoing fee basis meets with your approval. Time spent in preparing for testimony shall be billed at the hourly rate specified above. along with a listing of out-of-pocket expenses.D. photocopying. setting forth the nature of the services rendered since the prior billing. and all travel expenses will be reimbursed. prior to my testimony. Diplomate.

SEAK. MA. Falmouth. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. Am J Psychiatry 159:1819–1825. Falmouth. MA. Babitsky S. not just psychiatry. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. SEAK. Falmouth. IN. 1997 Babitsky S. Falmouth. their quality is variable. 2008 Ball D: Theater Tips and Strategies for Jury Trials. MA.) Binder RL: Liability for the psychiatric expert witness. 2007 Babitsky S. Inevitably.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. provide at least some information useful for the psychiatric expert. as well as those found in the companion volume. MA. 1997 (Though aimed at attorneys. 2003 Babitsky S. SEAK. Falmouth. this has many useful tips on trial demeanor and related issues. 2005 Babitsky S. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. National Institute for Trial Advocacy. Mangraviti JJ: How to Become a Dangerous Expert Witness. SEAK. MA. SEAK. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. MA. South Bend. 2002 Babitsky S. however. 2002 131 . These sources are meant to supplement those provided at the ends of the chapters in this book. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. The Psychiatrist in Court: A Survival Guide. Falmouth. All. SEAK.

Guilford Press. New York. CO. useful for checking credentials. 1995 Kwartner PP. Diamond. New York. et al: Expert Witnesses: Direct and Cross Examination. 1993 Dattilio FM. 2002 (This is designed as the successor book to the present one. Edited by Jackson R. Glenwood Springs. Danvers. in Learning Forensic Assessment.) Gutheil TG. Commons ML. Hillsdale. New York.) Gutheil TG. 2003 . Oxford University Press. American Psychological Association. 1993 Gutheil TG. Baltimore. Mechanicsburg. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. PA.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. 2nd Edition. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Horsham. DC. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 2006 Feder HA: Succeeding as an Expert Witness. New York. Simon RI. New York. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. Adams KM. MD. 3rd Edition.) Dattilio FM. 2008 Rogers R. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. Analytic Press. J Am Acad Psychiatry Law 34:482–491. 2007. McClure Company. 1908 (Purely for antiquarians and those interested in a classic from the last century. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. CA. Tageh Press. American Psychiatric Publishing. at a more advanced level. Washington. NJ. Williams & Wilkins. MA. Washington. J Am Acad Psychiatry Law 29:313–318. Covise LL. Wiley Law. 1994 Rabinoff MA. Lippincott. Santa Ana. Routledge/Taylor & Francis. James Publishing. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. Pennsylvania Bar Institute. New York. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. 2001 Isele WP: Under Oath: Tips for Testifying. pp 565– 588 McHale MJ. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. 2007 (Focuses specifically on the testimony phase of expert work. LRP Publications. PA. Springer. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law.132 THE PSYCHIATRIST AS EXPERT WITNESS. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. DC. Mulligan WG. LRP Publications.

Harvard Medical School. VA. links. http://www. Erlbaum. All experts should join. Web site of author’s colleague HJ Bursztajn. articles. Disclosure: This author is a founder. http://forensic-psych. A compendium of Web site of the Program in Psychiatry and the Law. American Psychiatric Press. Gutheil TG. with multiple resources. http://pipatl. publishing a vast range of information and offering excellent training courses. WW Norton.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. DC. and links. DC.) Simon A host of resources by two top attorneys.aapl. Washington. 2007 Tsushima WT. J Am Acad Psychiatry Law 35:346–349. Lightfoot. 1997 Younger I: The Art of Cross Examination. 1993 Other Media http://www. Wiley. 2004 (Study guide available since 2006. Kochansky J: The Complete Psychiatric Examination (videotape). New York.reidpsychiatry. http://www. 2003 Simon RI. Gaynor The main Web site for the American Academy of Psychiatry and the Law. Mahwah. Falmouth. Beth Israel-Deaconess Medical Center. DC. MD. New York. and postings. American Psychiatric Press. 1976 Zobel HB. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. Section of Litigation. Washington. discussions. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. http://tncrimlaw. Anderson RM: Mastering Expert Testimony. 2nd Edition. the national forensic psychiatric SEAK. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. Shuman D: Clinical Manual of Psychiatry and Law. American Psychiatric Press.html: Another multiple resource site. DC.SEAK. NJ. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. American Bar Association. A resource-rich site with articles. and links. 2001 . MA.

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In case of ambiguity. it is usually “court-tested. It is not derived from the facts of the specific case at hand. the plaintiff is the (live) person bringing the suit. Decedent The person related to the case who has died. Instead.” that is. it has been accepted in actual cases that validate its use. in the context of discovery.. the criteria for competence to make a will and for competence to stand trial are quite different. or tradition. that is simply plugged in to the appropriate place. Thus in a suicide malpractice case. such as relatives or executors. case law. there is no generic “competence. on mainframes) and may be used in attempts to impeach the expert at trial.” Deposition Usually believed to be the actual ceremony. the person who committed suicide is the “plaintiff’s decedent. Competence The capacity or ability to deal with a certain task. for example. Boilerplate Standardized legal language.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. which will live on in perpetuity (i. In reality the actual deposition is the transcript of the deposition. and so on. Competence is decision-specific and usually based on criteria. lab results. usually derived from statutes. interview data. two or more lawyers. consult your retaining attorney. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. legal documents such as depositions and interrogatories.” it is always “competence for what?” The criteria for the different competencies are often distinct. 135 .e. in which the witness. it may consist of records and documents. the practical and relevant definitions are provided.

but this is the established term. or an attorney-psychiatrist team. if so.g.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. disability. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. The GAL is usually an attorney. The role may include representing an unrepresented party (e. interrogatories. Novice experts see this as a misnomer. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. may be used as well. challenging the party moving for a particular result. and other medical contexts not limited to psychiatry.g. since the goal of the process appears actually to be a decision.” Discovery That early phase of litigation. and various motions accomplish some of this phase. See also “Trial by ambush. says what the attorney wants said rather than objective truth).e. thus decision maker rather than fact finder. investigating in the field for the court to determine the situation leading to the proceeding (e. after the civil or criminal matter is set in motion.. IME (independent medical examination) An important part of the discovery process in malpractice. The IME may be resisted by some attorneys. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. usually exchanged between opposing attorneys to alert them to your projected opinion. to visit a nursing home where resides a person whose competence is being challenged) and other duties. the fetus in an abortion decision). Depositions. The GAL may be thought of as a kind of utility infielder for the court. Finding See “Opinion. in “trial by ambush” jurisdictions this step is skipped. in which information is gathered by the attorneys in order to prepare the case... less ordinary procedures might include covert surveillance of a suspected malingerer. Fact finder Practically speaking. but a psychiatrist. borrowed from western and noir fiction and film. . the judge(s) and/or jury. “Hired gun” A term. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. this limitation constrains the data gathering and the conclusions that may be drawn from the database. use of a private investigator to obtain information. and the like.136 THE PSYCHIATRIST AS EXPERT WITNESS.

the expert can retreat when in doubt about what is going on or where the inquiry is going. the witnesses are to testify in court only with testimony that they can swear to. In a practical sense. The “seduction” may involve flattery. sometimes without even informing. Negligence In a medicolegal context. Opinion The final phase. disliked by almost all parties in a case as well as the general public. Of course. promises of much future work if the opinion in the present case is favorable.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. governed by legal criteria that vary by jurisdiction. because variations from these answers at trial will be used actively in attempted impeachment. the whole truth is often supplanted by “the admissible truth. In addition. Interrogatories A set of formal. the expert. One of the most challenging assessments in all of forensic psychiatry. the oath is a place of safety to which.” of the expert’s efforts. but without actually retaining. See also “Standard of care. when confusion sets in. the whole truth.” 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. “Phantom expert” An unethical ploy by some attorneys that invokes the expert’s name and/or reputation as a supposedly retained witness to intimidate or persuade the other side to drop or settle the case. retreat to the oath. There are several .” In practical terms. and let the chips fall where they may. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. the “bottom line. these are prepared jointly by attorney and expert. Like other sources of bias. and the like. experts should review these carefully for accuracy as to their opinions. the insanity evaluation is retrospective. the court makes the finding that defines the outcome of the case. falling below the standard of care in the care rendered in the instant case. tell the narrow truth. elaborate dinners and entertainments. its influence should be resisted by the expert. 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. and nothing but the truth. and widely misunderstood by many of those. The expert offers an opinion derived from the database and training and experience.

” “51% certainty.” which the expert must also know. administrative law procedures. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department.” “reasonable psychological certainty.” in suggested readings. and the like. Pro bono Short for pro bono publico (for the public’s good).” Though most attorneys are responsible. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. the standard is usually national but may be local—the “locality rule. but they cannot by themselves reform the exploitative personality. Sequester The separation of witnesses. it varies by jurisdiction but the official statutory language is something like this: “The standard of care is that care delivered by the average competent (prudent) practitioner of the same specialty under like circumstances and according to the practice at the time of the events in question. by excluding them from the courtroom. the origin of the frequently invoked mantra. 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. “get the money up front. privilege is narrowly construed as applying in legal or quasi-legal contexts only.138 THE PSYCHIATRIST AS EXPERT WITNESS. Appendix 4. See Gutheil et al. this term usually refers to service without payment. on the theory that this might inappropriately influence or contaminate the witness’s future testimony.” “reasonable medical (or psychological) probability. Several jurisdictional variants include “more likely than not. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. a few find ways not to pay you what they owe.” An expert testifying about a case must be familiar with the relevant standard.” and so on. hearings. The expert should be familiar with the relevant local standard and its definition. thus an attorney or an expert might perform a relevant duty for free. SECOND EDITION variations on this ploy. . 2001: “The Phantom Expert. to prevent the experts from hearing other testimony. Unlike confidentiality. particularly experts. which broadly applies to information that should not be shared with others in many contexts. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee.

The expert proffers an opinion.”) . after review. depositions. This rate should be seen as a rough guide. competent. which involve a victim in addition to the treater and patient. but the plaintiff has a thin or “eggshell” skull and is severely injured.” or “duty to warn third-party cases. are sometimes referred to as “third-party cases. Among other goals such as saving time. The image is that of a defendant giving a trivial blow to the head of the plaintiff. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. usually based on criteria.” Jurisdictions vary widely as to the applicability of this principle. discovery proceedings such as interrogatories. these cases. a blow that would ordinarily not be expected to cause harm. not those that come in for review. Because the usual duty of clinicians is to the patient alone. and expert disclosures (see “Disclosure”) inform the other side in advance. The expert has control only over those accepted or rejected. “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. etc. 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). this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. but the fact finder renders the finding that embodies the “ultimate issue. Turndown rate The ratio of cases that are. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. insane. Ultimate issue The final outcome of the legal process: negligent. not as a valid method of determining one’s standards of acceptance. guilty. accepted as meritorious versus those rejected as invalid. such as whether a witness should be accepted as an expert for the court.” Experts should refrain from stating the ultimate issue in their testimony.Glossary 139 Stipulate To concede or agree to a challenged issue. (See also “Opinion. Tarasoff v. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. In the majority of situations.

This may apply to certain communications between expert and retaining attorney. There are a number of possible causes. to say” but more relevantly. “The Problem of Evasive Testimony” in Suggested Readings. SECOND EDITION Voir dire An expression from the French. See Gutheil 2007.140 THE PSYCHIATRIST AS EXPERT WITNESS. evasive testimony designed to avoid answering a question directly or at all. Work product A designation of privacy for material that is part of the attorney’s trial strategy. Chapter 4 (reference 11). . Waffling An expert’s rambling. 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. literally “to see. in the present context. work product occupies a special category of privilege and is usually not discoverable. the purpose is to allow preparation of cross-examination or rebuttal. discursive.

63 Blackboard illustrations at trial. 23–24 Air travel. 16 treater bias. 70 merit of retaining attorney. 70 “Attorneys’ Guide to Experts. 82 negotiations with retaining attorney. 16 work product privilege. 106 Beepers at trial. 74. 30–32 misunderstanding of clinical issues. 26–28. Dress and appearance Attorneys communication with opposing attorneys. 25 Beat the Press (Fulton and Guyant). 112 first class. 115 courtroom. 74 Accuracy. 82 of reports. 105–106 loyalty to retaining attorney. 115 meals. 8. 77 Bias. 116 Alcoholic beverages. 106 American Psychiatric Association (APA). 7. 35 Background of expert. 49. 68 honesty of. 4–5. 18 Billable time. 104 Advocate for truth. 100–101 Alternative scenarios. 37 Alterations ethical. 9 nonsexual seduction. 45. 32. 65 fighting at depositions. 105 Assumptions. 82–83 Announcement of forensic practice. 52. apparent. See Ethics informing of availability as forensic expert. 60 Addressing judge at end of testimony. 24–29 social relationships with. 87–88 Admissions. 68–69 Attire at trial. 80 Body language. 4. 113 Bipolar disorder.” 106 Audiotaped interviews. xiii. 47–48 depositions. 105–106 Analogies and metaphors. 16 meeting with before deposition. 15 Agency relationship. 16–18. 37–38 Ambivalence. consulting with retaining attorney during. 121 American Academy of Psychiatry and the Law (AAPL). 14 Adversarial context. 100 of expert opinion.Index Accessibility airplanes. ethical model. 49. 4. 78. 61 retainers. 3–4 Advertising. 62 needed for forensic functioning. 105–106 American Board of Forensic Examiners. 17 problems of loyalty and identification. 52. use of. 44. See Clothing. 59–60 Advances minimum fee. 19 hindsight bias. 117 “Alibi” issues. 115 Alarm clocks. See also Demeanor 141 . 4–5. 115 airline guides.

65–66 Confidentiality breaches as basis for suit. 44 nonconfidentiality warnings. 4 Class action cases. 85–86 code language between attorney and expert. See also Video depositions gazing into the lens. 82 Breaks and recesses depositions. 32. 58–59 avoidance by attorney. 81 Communication with opposing attorneys. 64–65 Cough drops or throat lozenges at trial. 14 criminal responsibility cases. 77 Change of opinion. 99. 32 Building a practice. 100 Consultation services. letters to. 113–115 trial appearance. 28 Correction of answers at depositions. 33–34 merit of attorney. 65. 16. 14 Carry-on luggage. 34 misunderstood by attorney. 86–87 Cross-examination. how to handle in written reports. 107 Brokering a case when unable to handle it personally. or data. 118 Counsel. 95 Court reporters. 62. 86 Borderline personality disorder (BPD). 74 Code language between attorney and expert. 17. 38 Conflict of interest. 85–86 Brokerage organizations for expert witnesses. questions about. 71 Candor. 28–29 Contingent fees. 33–34 threshold question. example of outline.142 THE PSYCHIATRIST AS EXPERT WITNESS. 69 Concentration at depositions. 5. 103–108 Camera. 116–117 metal detectors at. 77. 116 Coaching. 34 Compound questions at depositions. 83 breaks and recesses during. 101–102 Crises while testifying at trial. 33 The court. 18–19. 113–114 Case name or citation in written report. SECOND EDITION Complaint. 39–40 Cellular telephones. 137 report. 121–123 Constraints on time. 61 trial. 33 scheduling. xiii. 66 Concessions at depositions. legal. 83 Courtrooms. 118 Criminal cases capital cases. 82 Clothing packing for travel. money. or experts. 48–49 involving the insanity defense. 82 Child abuse issues. 23 Clinical material. 7–8. 25 Conflicting stories from parties in case. review of. 99–100 Consent Form for Forensic Examination. 30 validity of case. 30–32 “nothing to go on” problem. 77 unpacking at hotel. See Attorneys Countertransference. 24. 59–60. 48–49. 30 Causation. 70–71. 29–40 documents. 108 Browbeating by retaining attorneys. 81 delaying tactics. 40 Child custody cases. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 4. 13–14. 73–79. 47–48 Competence issues. 19 Capital criminal cases. 61. 135 . litigants. 97 Case review.

62–63 concentration during. 85 Dangerous examinees. 68–69 breaks and recesses during. 66–67 locking in/limiting expert’s testimony. 135. 26 pauses before answering. 58–60 inappropriate questions. 83–86 “yes” or “no” questions. over-the-counter. 65–66 consulting with retaining attorney during. 59 limits of expertise. See Parties in case Demeanor cross-examination. 135 admissions in. 57–72. 73 use during trial. 74 Disclosure issues. 66–67 demeanor of deponent expert. 114 . See Privilege Documents. 64 objections. 113–115 trial. 59–60. Written documentation Doing no harm. 34 assessing. 84 pauses before answering. 64 opinions and their bases. 77–79 Departure from courtroom. 135. review of. 65 correction of answer. 85 quotes. 68 of experts at trial. 80–82 leading questions. 135. 75 Decision to take case. 68 fighting by attorneys at. Privilege Discovery. 76–77 written documentation to give listing of. 60 malpractice suits. 64–65 later evidence affecting opinion given at deposition. See also Depositions interrogatories. 57–58 nondiscoverable material. 80–82 of examinees during interviews. 68 final preparation. 92 Disabled individuals access to airplanes. See also Interviews. 113 Dress and appearance packing for travel. 61 compound questions or answers. 64 priority. 59 past. 97–98 Daubert challenge. 83 trial. 64 language/word choice. 91–92 privileged information. 69 Direct examination. 66 concessions. 69–70 videotaping of. 47 nonverbal responses. 116 Drinking. 79–80 restructuring. 66–67 143 interruptions. 62–63 reviewing. 64. See also Confidentiality. questions about. 88 trial preparation. See Records. 77 unpacking at hotel. 115 access to courtroom. 4–5. 87–88 Depositions. 70 “gerrymandering” clinical data. 58–70. 8 Double billing. 31 Database.Index demeanor during. 65 questions and answers. Reports. 58–60 goals of opposing attorney. 59–60 assumptions. 34 stenographers in. 63 goals of expert being deposed. 64–65 curious questions. 117 Drugs. 68 treatises. Records leaving behind after trial. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 85 reasons for. 5–6. 61. 38 of experts at depositions. 34. 29 Defendant. vast amounts of now stored online.

36 “False memory” cases. 78 Eating. 96 Harm. 44 . 51–52 Hindsight bias. of sexual misconduct. See Meals Forensic countertransference. See also Hired guns definition. 15 loyalty to retaining attorney. 28 Fairness. 28. 16 marketing a forensic practice. 67 marketing. 28. always soliciting. 112 Failure of retaining attorney to pay fee. for travel. 26–28 detailed fee agreement. ethical model. 5. 30–32 of experts. 125–128 Gestures at trial. 7–8. sample. See also Ethics of attorneys. 107 new facts at trial. See Air travel Food. 32 Good writing. 9 Humor. 28. 6. 129–130 standard fee agreement. 100–101 billing. 15 Honesty. 13–14. 15 social relationships with attorneys. 115 Feedback. See also Conflict of interest advocate for truth model. Reimbursement for travel Expert witnesses. 67 Expenses. 61. 6 High-profile cases. 38. 49–50 Employment relationship. importance. doing none. sample. 125–128 travel costs. 112–113. litigants. 115 Flip charts at trial. See Meals Emotional injury cases. 136 spotting the other side’s. deposition and trial. 14–15 Etiquette at trial. 8 Hearsay. sample. 129–130 standard fee agreement. 15 altering reports. 28. 50–51 interviews. 82 Hotels. 61. 82 nonconfidentiality warnings. 95–96. 1 functions. 62 Hired guns. 15 remaining neutral. 103–108 Forensic reports. issuing. 18–19 honest advocate model. 38 “nothing to go on” problem. sample. 25 External consistency of story. 25 Honest advocate. 24 Entrance of judge. 78 Global requests. or experts. principles of. 33 oaths. SECOND EDITION Family or friends. 47–48 cross-examination. 49–51 examples. 88 Fees. xiii–xiv evidence in. 75–79. 44. See Countertransference Forensic practice. 87–88 Evidence. 37 Eye contact at trial. 25 Flashlight. 113 contact with opposing attorneys. 17 special expertise of. See Fees. 60 False allegations. 113 Fitness as expert. 75 Ethics. 80 Fabrics. 13–21. principles of. 115–116 Humility factor. See also Written documentation Forensics.144 THE PSYCHIATRIST AS EXPERT WITNESS. staying with. 2 Forms detailed fee agreement. scholars in. 16 turndown rates. 1–3 Experts honesty of. 52–55 History of expert. 80 Flying.

52 Malpractice suits. 87–88 Lecturing as marketing tool. 37 alternative scenario. 82 Jet Smart (Fairchild). 47 standard of care. 16. 115 during trial. 97 to the court. 45 records. 46–48 social service history. 40 videotaping or recording. 18–19. 105 ethics. 35 Involuntary gestures at trial. 37 interference. See Hotels Loyalty to retaining attorney. 35 order of. 116–117 Media coverage and cases. 38 note taking. 112 Meals airplane food. 34 depositions. 53. 49–50 external consistency of story. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 37. 36 Interrogatories. 18 Integrity. 36 presence of attorney. 35 retention of records. 138 Marketing a forensic practice. See Attorneys Leading questions on crossexamination. 45–46. 34–35 plausibility of case. 36 Internal consistency of story. 49. review of. pros and cons. 91–92 recording. 83 testimony before. 45 Lodgings. 45 Juries. for travel. 106 Locality rules for standard of care. 84 Leaving courtroom. 95 Likelihood principle. 34–35 plaintiff. 112 Judges addressing. 49 demeanor of examinee. 57–58. 119 Materials. 39 Interviews. 107 Interference of attorneys during interviews. 115 Lawyers. 98 145 Laptops. 36 internal consistency of story. 106 listings. importance of. 86. 79–80 Jurisdiction-specific language. 51–52 Medical records. 106 specialization. 36 nonconfidentiality warnings. 137 Insurance challenges. 7 Listings as a marketing tool.Index Identification with retaining attorney. 87–88 dismissal by. 107 lecturing. 34 . 16 Insanity defense in criminal cases. 6 entrance of. 75 respect for. 43–48 creating timelines for. 2 entrance. 137 Intervening causes. 38 emotional injury cases. level of scrutiny. 34–38 “alibi” issues. 79. 48–49. 75 informing of availability as forensic expert. 78 Jargon. 105 Judgment. suspending. 37–38 criminal responsibility cases. 47 elements of malpractice. 103–108 announcement of practice. 45 locality rules. 106 publishing/writing. 6–7. 106 Letters to attorneys. 107 strategies. 86 Malingering. 35 priority. 99.

29 fees. 16. 25 initial contact. See Parties in case Plausibility of case. 86 Nonconfidentiality warnings. 82 interrogatories. 74. 77 Personal injury cases. 49–51 Practice pointers. 117 Pretrial conferences. SECOND EDITION Online. 26–28 Networking. 65. 118 Metaphors and analogies. 97 . 54. 97 communication with opposing party. 34–35 Patience. 117 Metal detectors at courthouses. 137 Negotiations with retaining attorney. 50 Preliminary reports. unfailing. 8 Pens and pencils at trial. 26–28 fitness as expert. 52–55 contact with. See also Confidentiality deposition. 57–58 Objectivity. 39 vulnerability of plaintiff (“thin skull”). See also Web sites storage of past depositions. 26 Opposing attorney. 113–115 Parties in case case name or citation in written report. questions of. 100–101 Posttraumatic stress disorder. See Trial preparation Prescription medications. goals of. 47 during interviews. 71 Oaths. 40. 45. 24 request of retaining attorney. 16–18 clinical and forensic issues. 64 interrogatories. 112 Packing for travel. 114. 115 Preexisting illnesses or conditions. 74 Prior testimony by expert. 13–14. 91–92 Privilege. 15. 15 Objections depositions. 64 Peer review for testimony. 38 Nonsexual seduction. 66.146 THE PSYCHIATRIST AS EXPERT WITNESS. 24–29 background of expert. 138. 67 National Forensic Center. 35. 58–60 Opposing expert witnesses. 80 Misunderstanding of clinical issues by attorney. 47–48 plaintiff interviews. 81 Postreport negotiations. consulting with retaining attorney at. 24–25 timing and scheduling. 57–58 trial. 25 bias. 68 Pauses before answering cross-examination. 25–26 Priorities. 49–51 Morality. See also Marketing a forensic practice New facts at trial. 24 decision to take case. 69 Plaintiff. 91–93 Precautions. 44 Melatonin. not compromising. 70 Medication issues as basis for suit. 106 Negligence. 137 depositions. effect of. See Emotional injury cases Physicians’ Desk Reference (PDR). 97 Preparation for trial. 4–5. writing for. while traveling. 17–18. 77 keeping notes. 137 Note taking importance of. 82. 30 Occasions. 88 The Packing Book (Gilford). 104. use of. 85 depositions. 47–48 Outcome of case. 82–83 Microphone use at trial. 82 Mitigation of damages. 5. 36 Politeness. 14. 65 work product privilege.

See Negotiations with retaining attorney Retention of records. 66 Simon. 48 Sleeping. 40 Returning calls. 138 of witnesses. 34 retention of.Index Pro bono work. 6 Scheduling issues. 17–18 Self-serving behavior. 49 database of. 33. 112 Reports. 115 Rental cars. 45–46. response to. 138 Professional meetings. 97–98 Supporting data for written reports. 6 Specialization. 25 Reasonable medical certainty. 46–48 medical records. suggested. 81 Sworn statements. 3. 9. 117 Social relationships with attorneys. 95–102. 46 criminal responsibility cases. 33–34 CATO model for. 107 Standard of care. 25 Required action. staying with. 53. 28–29 Running shoes. 44. 7. 100 Recesses. 91–93 personal conflicts. 93 Seating at trial. 36. 108 Roles of expert. See Oaths . See also Packing for travel Supplementary reports. maintaining appropriate. power of. 138 Rebuttals. reasonable medical certainty. 14 147 Retaining attorney. 83 Retainer. 112–113 Santayana. 131–133 travel books. 92. 112 Reality-testing.. 68 Storytelling. See also Malpractice suits Suitcases. 79. 108 written documentation. 26–28. 74 Reimbursement for travel. traveling with. 54. 5–6. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 99 Surprised expert. 113 Relatives. 35 Records. 51–52 Quoted passages. 18. 79 Stenographers. 131–133 travel books. xiv. 97 Rehearsing testimony. 31–32. 40 social service histories. 106 Publicity and cases. 112 Respect. 6–7. level of scrutiny. See also Written documentation Reputation of expert. showing toward juries. 43–45. 25–26 as marketing tool. 38–39. 82. 70 Skepticism. 34 malpractice cases. 104–106. 75–76 Seduction. 15. 119 Site visits. obtaining in advance. importance of. 16 Social service history. 54 Resources for suggested readings. 9. 73–74. 75 Sexual misconduct cases. negotiations with. 107. See Breaks and recesses Recorded interviews. 47 Referrals. 40 case review. George. review of. 138 Standard of proof. review of. 7. 113–114. 85 Readings. 47 Socratic method. See also Court reporters in depositions. 49 Sequestration. 24 Publications by expert. nonsexual. 3 Suicide malpractice cases. 106 Psychiatric malpractice suits. 64. 82 Silent treatment. 6. Robert I.

37–38 Trial. 118 crises while testifying. 86–87 cross-examination. 73–90 beepers/cellular telephones. 80 language/word choice. 87–88 dress and appearance. 74 Truth telling. 113 Travel service. 116–117 microphone use. 81–82 priority. 92. 75–79. importance of. 112 Travel expenses. 77. 78 illustrations. questions about. 111–118 billing. 112 unpacking. versus expert. 82. 61. 77 returning calls. 117–118 Trial preparation.148 THE PSYCHIATRIST AS EXPERT WITNESS. 74 Teaching role. 117–118 testimony. 74 using database during. 35 keeping track of. SECOND EDITION cough drops or throat lozenges. 117 time planning. See also Ethics. 55. 64 for interviews. 80 humor. 77 courtroom. 77–79 departure from courtroom. 108 wake-up calls. 79–80. 112–115 sleeping. 80. 26–28 travel time. 112–113 travel information. or flip chart. 87–88 eye contact. 77. 75–76 supplies. 86 cellular telephones. marker board. blackboard. 116 Treater. 8–9 Treatises. 80 new facts coming to light. 74. 35 flying. 13. 44. 25–26 roles of expert. 51 evaluating. 113 examinees. 19. 14–15. 139 Type of practice expert has. 48–49 emotional injury cases. 8. 74 rehearsing. 77 what to bring into court. 112 Traveling. 28–29 Third-party cases. 77 etiquette at. 82–83 lunch during. 73–74 language/word choice. 60. 79–80 timing and scheduling tips. 74 planning. 69–70 Treatment recommendations. 73–74 practice sessions. 76–77. 116 Testimony at trial. 34 for depositions. 82. 78–80 Telephones calls during trial breaks. See Crossexamination demeanor at. 76–77 water. 118 Time creating timelines. bringing into. 86 pens and pencils. See also Cross-examination prior testimony by expert. 139 Taxicabs. 112 Traumas. 44 Throat lozenges or cough drops at trial. 43–56 criminal responsibility cases. 74 presentation. 115 lodgings. 77 breaks and recesses during. 74 pitfalls. 91–92 seating at. 80 pretrial conferences. 86. Honesty Turning down cases. 39–40 Travel books. 85–86 conclusion of questioning. 77 pointers. 49–51 Tarasoff-type cases. 87 . 85. effect of. 74. See Meals packing. effect on standard of care. 115–116 meals. 45–46 Types of cases.

67 Video depositions. 100 referrals. 104–105. money. 97 principles of good writing. 97–98 supporting data. 79. 95–102. 107 Weight to be given to on-site psychiatrist’s observations. 77 Web sites. Reports case name or citation. 43–48 “Ultimate ethical test. 74 Voltaire.” 2. 82 Values. 96 rebuttals. 51–52 psychiatric malpractice cases. 116 Water during air flights. example of outline. 117 Word choice depositions. 115 in courtroom during trial. 35 Visual aids. questions of. 98–99 conflicting stories from parties in case. 99–100 constraints on time. 53–54 Wake-up calls. or data. 70. 108 Work product privilege. 7 Waffling in answers. 100 criminal case. misunderstanding by attorney. 70–71 Videotaped interviews. 97–98 headings. 97 opinion. 44 White noise. 97–98 jurisdiction-specific language. See also Records. 140 Written documentation.” 18–19 “Ultimate issue. 97 interviews/items reviewed. 97 conclusion. 100–101 trial preparation. 140 examples of. 4–5. 82–83 149 Word-of-mouth referrals. 98 letters to attorneys. 64–65 reports. how to handle. 139 Understanding of clinical issues. 74. 101–102 database listing. 98–99 postreport negotiations.Index high-profile cases. 97 supplementary reports. 100–101 preliminary report. 97 occasions. 99 .

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