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The Psychiatrist as Expert Witness
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D. England . DC London.The Psychiatrist as Expert Witness Second Edition Thomas G. Harvard Medical School Boston. Massachusetts Washington. M. Gutheil.
Copyright © 2009 American Psychiatric Publishing. Evidence. and routes of administration is accurate at the time of publication and consistent with standards set by the U. . Gutheil. [DNLM: 1. Inc. Forensic Psychiatry. schedules. Thomas G. Inc. The psychiatrist as expert witness / Thomas G. Forensic psychiatry—United States.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library.appi. Inc. As medical research and practice continue to advance. Books published by American Psychiatric Publishing. 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.G8 2009 614′. represent the views and opinions of the individual authors and do not necessarily represent the policies and opinions of APPI or the American Psychiatric Association. Thomas G. paper) 1. I. 1000 Wilson Boulevard Arlington. For these reasons and because human and mechanical errors sometimes occur. VA 22209-3901 www. Gutheil. c1998. cm. Expert Testimony. II. 2. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Expert—United States. Food and Drug Administration and the general medical community.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. ISBN 978-1-58562-342-6 (alk. Gutheil has no competing interests to disclose. Dr. Title.. W740 G984pf 2009] KF8965. specific situations may require a specific therapeutic response not included in this book. — 2nd ed. however. p. Companion to: The psychiatrist in court / Thomas G. American Psychiatric Publishing. Moreover. and that information concerning drug dosages. Psychiatrist in court. 2.org Library of Congress Cataloging-in-Publication Data Gutheil. Gutheil. therapeutic standards may change. Includes bibliographical references and index.S.
To Shannon. . truly the wind beneath my wings.To my children and the hope of the future.
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. 13 Turndown Rates. . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . . . .Contents About the Author . . . . . . . . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 The Expert on the Road: Some Travel Tips
for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
coauthored with Paul S. M.About the Author Thomas G. he has received local and national writing and teaching awards. Appelbaum. Recipient of every major award in the forensic field.D. Gutheil. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. Through more than 250 publications and many lectures and seminars in national and international fora.. he has taught many clinicians about the interfaces between psychiatry and the law. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. received the Manfred S. 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. Clinical Handbook of Psychiatry and the Law. and now in its fourth edition. xi . Harvard Medical School. and a Distinguished Life Fellow of the American Psychiatric Association.D. M. 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..
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In addition. As an aid to present readers. 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. and at the request of past readers of the first edition. and many a practitioner feels the urge to try out this fascinating realm. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. 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. besides the requisite updating of references and suggested readings. The Psychiatrist in Court: A Survival Guide. an expanded discussion of bias in testimony. in fact. additional illustrative examples. this edition also contains things I wish I had said in the first edition. it provides tedious stretches of waiting and inactivity. 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. Such service presents many stresses and equally many satisfactions. xiii . Forensic psychiatry is growing in popularity. expanded definitions of key concepts. other changes in this second edition include: a glossary of useful terms. interspersed with frenzied bursts of action. From another perspective. and cases or principles that I have learned about since the first edition. Moreover. Often the greatest difficulties in this profession occur at the outset. if you feel shaky about the basics. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. before experience itself has had the opportunity to provide the most durable and valuable instruction. 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. that book is a good place to warm up.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes.
This new updated edition. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. and informal discussion in a user-friendly tone replaces scholarly discourse. hands-on mentoring and guidance that were not readily available in the past. M. Thomas G. Gutheil. Indeed. 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. . perhaps— dare I say it—interesting and even fun. for such readers. the later chapters may yet prove useful. You who are in that position are also my audience. you.D. The more seasoned expert may wish to skim over the more familiar material in the text. the novice court goer.xiv THE PSYCHIATRIST AS EXPERT WITNESS. kicking and screaming. whenever possible. in part because they represent material never covered in other sources. concrete advice replaces abstract theorizing. attempts to provide some of that practical. but choosing to go. drawing on developments subsequent to its first version. I hope you find this approach useful. Best wishes for success in your burgeoning career as an expert witness. SECOND EDITION If your early court experience has not been too traumatic.
M. I especially thank “Dr. Harvard Medical School. and to Ms..” James T. and Shannon Woolley for their careful review and most helpful critique and comments. Larry Strasburger. Resnick.D. xv . Ellen Lewy for absolutely indispensable assistance with the manuscript. Candace Love of On-Point Research for valued assistance in compiling resources. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. Hilliard. Stephen Behnke. for permission to use some of his material on writing for court. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work.. to Drs. Phillip J.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. and Ms. Esq. Harold Bursztajn.
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Indeed. to provide information and understanding relevant to the legal system’s concerns.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. In the courtroom setting. that is. the concept of a psychiatric expert witness. 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. clinically defined. both clinical and nonclinical. For example. In this book. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. the question “What makes an expert?” seems to answer itself: expertise makes the expert. the question of what makes an expert witness is more complex. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. even if those conclusions are based on others’ observations. More narrowly. is a psychiatrist who uses particular skills. in contrast the expert is entitled by the role to draw conclusions. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. knowing a lot about a certain topic and having extensive experience therein. 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. an expert witness may review a chart filled with other clinicians’ observations 1 .
such as competence or insanity. proclaiming their ultimate faith in the jurors themselves.” This issue is discussed further in later sections of this text. because what an expert offers is “only” a witness’s opinion. incompetent. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. some questions can only be answered by a specialist. As a rule experts should limit themselves to criteria-driven. at times.” You want someone who will present in a way that the jurors would be inclined to say this. 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. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. I also want someone who has clinical experience and is doing that which he/she is testifying about. A leading plaintiffs’ attorney described his need for an expert in this way during a lecture: What I think you want the jury to feel when you have an expert in front of them is: “Gee. if I had this problem. and so on. What I find bemusing is the fact that. from ballistics to the temperature of coffee sold at fast-food franchises. For that matter. are the very same ones who had retained me on a previous case.. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. opinionphrased descriptions rather than conclusory statements: “in my opinion.. However. the jury is free to accept or reject the expert’s testimony in whole or in part. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. . not the ultimate finding that a judge or jury decides. that is. the expert is to educate the retaining attorney. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. Note in regard to the issue of ultimate findings. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. then the judge or jury. I believe this person.2 THE PSYCHIATRIST AS EXPERT WITNESS. or malingering. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. the court system needs expert witnesses in a burgeoning variety of technical fields. Under this model. insanity.I do not want someone who [merely] teaches others about it. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. competence.. about matters that are beyond lay knowledge or decision making. Indeed. I’d want to be treated by this person because he/she makes sense.
Despite his doubts. went even further by listing the functions of the expert as being to 1) tell the story. syndromes. clinical entities. eyes glowing with interest. with Figaro kneeling on stage taking the measurements of his marriage bed. 4) help the fact finder see the facts. conflict between the parties. Mozart begins to describe the opening scene of The Marriage of Figaro. statistics. The foremost of these.Introduction: What Makes an Expert? 3 Another scholar. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. 2) make the fact finder want you to win. causation. demographics. at family functions. (2. The emperor leans forward. and an adversarial atmosphere are problems to be avoided. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. and so forth would have accomplished this vital storytelling purpose. Showing pictures of the deceased at communion. although basic. oppositionality. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. and the one often most troubling to clinicians. pp. and 5) argue the case (1). Most clinical work occurs in the context of the alliance. In this chapter. is the adversarial context. some points. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. and throughout this book. 3) make sense out of the law. “Where are the communion pictures?” Pressed for a less cryptic expression. the emperor is initially resistant to Mozart’s novel music. The power of storytelling was captured in a movie about the career of Mozart. In one scene. or resolved or otherwise put to therapeutic use. however. 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. a law professor. surmounted. The highly experienced defense attorney who had retained me was heard to mutter at one point. . and the resulting probabilities. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. consider this scene: In the movie Amadeus. are so essential to this work that I review them in the following discussions. he has become engrossed in the story.
The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. in a forensic setting. you work for the consultee (i. in the forensic setting. In other words..4 THE PSYCHIATRIST AS EXPERT WITNESS. two of the victims of this concept are ambivalence and complexity.. the retaining attorney or court). 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.e. ambivalences may be divided between the two parties in the case rather than felt internally by either. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. I define the term work product to include the notes. Note for completeness that certain forensic contexts. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. the adversarial context is one of the “givens” in the situation. 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. they are not case-related documents and therefore are protected from disclosure. for whom am I working? Your answer will clarify your location within the adversarial framework. files. For example. the court situation is a zero-sum game: one winner. Unlike the search for consensus in the clinical setting. The question of whom you work for also will alert you to major pitfalls of bias. must first ask the question. In the legal context. even if it is a compromise (3). you usually do not). because that position confers greater neutrality and protection for your efforts. you usually work for the patient. memoranda. In medicolegal work.” a mandate that may trump other claims on your agency. in the clinical context. render highly complex the question of agency. as well as the usual lack of a physicianpatient relationship (i. The Prime Question Any forensic psychiatrist. Com- .e. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. Although there may be as many views of the patient as there are team members. and other papers that the attorney generates in the course of litigation. one loser. The usual guiding principle in such determinations is “the best interests of the child. whether testifying or consulting. This specialized topic is beyond the scope of this book. such as child custody evaluations. 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. Like other consultants.
or basis. Warnings are further discussed in later sections about the interview itself. between the “whole truth” and the “admissible truth” (4). and relevant literature. The retaining attorney will guide you in this matter. including records. The issue here is the tension. convicts. with some exceptions. of course. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. is private and confidential. or impression. be carefully documented. litigants. when in doubt. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. with exceptions. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. correspondence. Most attorneys know not to include details of their trial strategy in letters to you. Although therapy usually transpires within the patient’s self-reported data. One trenchant reason for this approach is to obtain corroboration or discorroboration. defendants. my own or others’ interview notes. and captured as well in the consent form for forensic examination as Appendix 1. As we will see later. lest they be exposed prematurely to the other side. later addressed. the forensic perspective almost always extends beyond the individual examinee. fantasy. Therefore. The term also suggests that an expert’s opinion rests on a base. court-related issues are often matters of public record and public exposure (in open court). 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. 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. it should. 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. . In contrast. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. reports. suspects. your personal attorney can always give you advice on nondiscoverable matters. legal documents.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. of data—facts and clinical verities—rather than on idiosyncratic theory or whim.
always seeking out verification.6 THE PSYCHIATRIST AS EXPERT WITNESS. absent clear delusions. 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. which preclude admission of certain kinds of data or evidence in the name of justice. and to maintain an appropriately skeptical posture. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. The witness should be guided by the maxim: when entering the courtroom. — George Santayana Unlike the treatment context. though under oath to tell the whole truth. experts in court must play by court rules. or discorroboration . Yet the court may be driven by principles of fairness. one is guided by its rules. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. be it moral or monetary.. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. despite the convoluted. and the like (4). In practical terms the expert witness. fundamental fairness. do not demand to be heard: answer all the questions and then stand down when dismissed. The Socratic Method Although expert testimony has been compared to teaching. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. hearsay-ridden trail by which it comes to the team’s attention. and similar signs. 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. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. Because a patient in treatment is willingly coming for help. hearsay. the forensic practitioner is wise to suspect everyone of having some stake in the matter. prejudice. In contrast.. but the Socratic method is one of the mainstays of courtroom procedure. detailed. may be forced into limitations on this promise because of countervailing considerations of precedent. This painstaking. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. obvious self-contradiction. corroboration. Once again.
or even reasonable psychological certainty). Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. and leads physicians of all specialties observing.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. Reasonable Medical Certainty Doubt is not a very pleasant condition. regardless of its clinical or empirical validity. ask about the local variant. For most of us. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. high-profile insanity cases. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. including forensic psychiatrists. reasonable medical probability. Rather. but certainty is absurd. Other contextual clues about the hired gun are overly candid advertising in legal media (e. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. As a general rule. All psychiatrists.. Note that there may be some jurisdictional variation on this point.g. — 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. honest experts should avoid these approaches to . a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. sell time. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. makes forensic psychiatrists unpopular with their clinical colleagues. forensic work is a sideline to our clinical focus. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). for example. 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. Although some will cry that there are exceptions. we are paid by time criteria.
8 THE PSYCHIATRIST AS EXPERT WITNESS. see reference 5 and the appendix to reference 3).” in this volume). Thus. it is an excellent way to benefit from the teaching of colleagues and to share ideas. If a clearly meritless case is offered to you for review. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. there are significant clinical. Often no absolute standard exists by which to measure opinion testimony. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. you avoid temptation to skew your opinion. 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. and you maintain your ethical compass direction. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. because these provide a base of financial stability that enables you to turn down cases. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. case materials. SECOND EDITION finding work. First. legal. and corroborating data. and ethical incompatibilities with serving as your patient’s expert. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. (By the way. For various reasons (5–7). Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. “Developing and Marketing a Forensic Practice. reasoning. There are complexities in this area that should be addressed. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. although the clinician is obligated to place the welfare of the patient above other considerations. 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). summarized as follows (for more extensive discussion of this point.) 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.
The Humility Factor Finally. the wish to avoid paying expert fees that are usually higher than those of treaters. not the engine. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. 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.” This provocative image should be kept solidly in mind. in contrast. 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.” Even when the expert is the only source of data that the jury receives. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. rather than the entire forensic database.D. Attorneys seem to display a curious indifference to these incompatibilities. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. Indeed. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. treaters called into court may violate the confidentiality of the clinical setting. Early in my career. . as noted in the section on malingering above. the expert goes in skeptical. M. From this viewpoint. Master forensic psychiatrist Robert Simon. Some attorneys report that their only use of experts is to neutralize or cancel out the testimony (or even the mere presence) of the experts on the other side. even though this may occur appropriately under legal rules. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. the treater has usually had only the patient’s reports on which to rely.” Although this last is true in certain respects. whether because of simple ignorance of the above distinctions. Second. the therapeutic alliance. Third. constitutes a bias for forensic functioning. thus leaving the jury free to vote its “gut. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation.. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8).Introduction: What Makes an Expert? 9 the treater gives in court. though essential for therapy.
New York. White MS. Lippincott. J Am Acad Psychiatry Law 31:422–427.asp. Baltimore. 6. Hauser MJ. Gutheil TG: Clinical Handbook of Psychiatry and the Law. FL. MD. 2008 .gmc-uk. 1998 Gutheil TG. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. August 2. Baltimore. Am J Psychiatry 154:448–456. Personal Injury and Other Civil Actions. DC. American Psychiatric Press. Gutheil TG. et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. 5. Expert’s Quarterly (Winter): 2. 2007 Barsky AE. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. 7. Kane AW: Psychological Experts in Divorce. 2006 Catto G: Acting as an expert witness. 3. Lewis Publishers. J Am Acad Psychiatry Law 33:55–58. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. MD. Depositions. 2003 Strasburger LH. Guilford Press. Simon RI: Narcissistic dimensions of expert witness practice. J Am Acad Psychiatry Law 25:233–247. Gould JW: Clinicians in Court: A Guide to Subpoenas.10 THE PSYCHIATRIST AS EXPERT WITNESS. Bull Am Acad Psychiatry Law 20:153–162. Washington. 2002 Bronstein DA: Law for the Expert Witness. Harv Rev Psychiatry1:4–5. British Medical Journal 337 (#7664).org/guidance/ethical_ guidance/expert_witness_guidance. Lippincott. 1992 Appelbaum PS. 1997 Gutheil TG. Wiley. Boca Raton. J Am Acad Psychiatry Law 34:14–21. 2005 2. Available at: http://www. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 8. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Williams & Wilkins. 1997 Gutheil TG. SECOND EDITION References 1. New York. 4. 4th Edition. Accessed August 5. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Williams & Wilkins (Wolters Kluwer). Testifying and Everything Else You Need to Know. Suggested Readings Ackerman MJ. 2008.
NJ. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. Behavioral Sciences and the Law 7:145–180.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. Int J Law Psychiatry 13:281–307. Bull Am Acad Psychiatry Law 15:217–227. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. Gold LH: Textbook of Forensic Psychiatry. DC. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. J Am Acad Psychiatry Law 30:10–13. 1994. 2005 Simon RI: Psychiatry and Law for Clinicians. New York. Psychiatric Services 52:1526–1527. 2001 Quen JM: The psychiatrist as expert witness. Analytic Press. 2004 Slovenko R: On the therapist serving as a witness. Hillsdale. American Psychiatric Press. 2001 Simon RI. Bull Am Acad Psychiatry Law 2:119–132. DC. 1989 . American Psychiatric Press. Edited by Quen JM. pp 233–248 Rogers R. 3rd Edition. 1992 Dietz PE: The forensic psychiatrist of the future. Washington. Springer Science+Business Media. Washington. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. in The Psychiatrist in the Courtroom. 1990 Gutheil TG.
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with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. S-3) THE EXPERT faces many challenges in forensic work. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake.[Finally] I realized that each witness chair comes equipped with a stabilizer control.” (1. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. their ultimate goals in the legal process.. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons.CHAPTER 2 The Expert’s Ethical Universe My first adventure in the witness chair convinced me that it was as unstable as a one-wheeled rickshaw on a downhill course. and its results may harm. particularly an empathically attuned one. tend to drift unconsciously into a “therapeutic mode.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. examinees being interviewed by a psychiatrist.. To prevent such inadvertent abuse or exploitation of the examinee.” They may forget that this encounter is not therapy. p. rather than help. In this chapter. First. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray.. the ethical expert be13 . It is a control easily within the reach of every witness—the lever marked “truth.
SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. For symmetry. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. impugns your ancestors. (Note that even if you cannot support all of the claims proffered in the case. you must consider whether your threshold for case validity may be too low. After settling up any monetary adjustments. Rather. the attorney curses your name. Turndown rates between 10% and 30% are not uncommon. 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? . defensible. indicates the intention of explaining your information to the client. who—in the ideal situation—accepts this view.. either your threshold for validity is too high or you need to meet a better class of attorneys. and states. You pass this information on to your retaining plaintiff’s attorney. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. this case might be called a defense case because the actions of the defendants are. If you take every case you review. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. denounces your integrity.14 THE PSYCHIATRIST AS EXPERT WITNESS. this case is over and has been turned down. your attorney still may use your opinion or report to bolster one aspect of the case or to limit the extravagant claims of the expert on the other side. and slams down the telephone. In a not-so-ideal situation. 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. If you turn down most cases you get. you are friends with one of the defendants). Therefore. you decide you cannot support the retaining attorney’s position. The warnings (carefully documented. that the firm will not be using you as an expert. indeed. scoffs at your qualifications.g.) For example. if necessary. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. the turndown rate is the percentage of cases in which. thanks you for your help. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. after reviewing. understandably. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney.
Although these referrals are not strictly turndowns. “White on this side. inpatient care. say. they do represent cases in which you have elected not to participate. and 2) you answer cross-examination truthfully (see the following discussion). Nevertheless.” . all of which you might accept. Consequently. you could receive a number of good 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. or a number of invalid or meritless cases. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. and the expert becomes the fully neutral observer and reporter. guess. Consequently. Partisan pressures from the adversary are put aside. In forensic practice. that is. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. An author described the special sensitivity to what one can swear to in this way: You are asked. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. only over those you elect to accept. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). This model is sometimes called the advocate for truth model. speculate about. the only touchstone is absolute truth as you know it or understand it. and so on.” Once under oath. “What color is that house over there?” The novice answers.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. you take nothing for granted. for a particular case outcome). Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. This model has been called the honest advocate model. 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. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. that position is always acceptable. all of which you should turn down. “White. One model holds that once the oath is taken.” Your correct answer would be. for example. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert.
The attorney is free to find another expert. out of feelings of being loyal to his or her retaining attorney. The varying forms of bias are discussed below. The novice expert who adjusts or bends or twists an opinion away from clinically based validity.” in this volume). your opinion and its limitations. this factor would require greater scrutiny of the relationship by the forensic witness. committed quality work. respect. . you may come to like. Recall that the attorney’s goals are winning the case. you owe only serious. Extending this idea. that is. settle or drop the case. you do not owe agreement with the attorney’s position or theory of the case. This difference is significant.16 THE PSYCHIATRIST AS EXPERT WITNESS. but two dimensions of the relationship pose potential ethical problems. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. You do owe it to your attorney to level with him or her about yourself (e. is disappointed that your present opinion is unfavorable. discussed further in Chapter 3. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. under the rubric of loyalty. First. this identification may compromise your needed objectivity. If the attorney. similarly. A pitfall in this area might be called forensic countertransference. that is not your problem. but the likelihood of identification bias would surely seem to be greater. “First Principles. with whom you have done many a previous case together.. and admire him or her. just what does the expert owe the retaining attorney? Strictly speaking.g. the skeletons in your closet. As you work closely with your attorney. being retained by an attorney with whom you have had an extensive previous social relationship—constitute a problem? The answer probably depends on the maturity of both parties. 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. might extensive socializing with the retaining attorney—or. 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. is misreading the nature of the ethical contract between the two parties. and what you can and cannot testify to under oath. yours are providing ethical and valid consultation or testimony or both. or make whatever use of your opinion that may be of service. thus. identification with your retaining attorney (discussed more extensively in ).
The . of course. promises many future retentions. This neutral position is highly desirable for that reason. There is no shame in this. although not common in practice. for instance. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. p. you should refer the case. Note for completeness that the partisan effect of loyalty to the attorney is significantly bypassed when you serve as a court-appointed expert or examiner. The situation does reveal some complexity. eliminate other subtler biasing factors. Similarly. If you are a victim of child molestation. Somewhat idealistically.The Expert’s Ethical Universe 17 Nonsexual Seduction and Other Forms of Bias One form of bias may be created by the retaining attorney in an attempt to influence the expert. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. An empirical study aimed at obtaining a sense of the prevalence of this and other attempts at influence revealed that 35% of the admittedly small sample had experienced such efforts “apparently aimed at obtaining a favorable opinion” (4. of course. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. you may feel unable to examine objectively a child molester. bias can be exceedingly subtle. 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 are expected to manage your countertransference toward the examinee or the examinee’s actions. 337). as a clinician. The fact that the position is more or less neutral does not. and may add blandishments such as dinners at expensive restaurants and the like. this effort may be termed nonsexual seduction. an attorney. such as overidentification with the judge or the “system.” Note also that. 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. 33) However. In this model the attorney lavishes praise on the expert. if the countertransference is unmanageable. (p. many expert biases are not detected either by the adversary system or even by the experts themselves.
and their testimony is often unconvincing. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. none of this information should be a surprise to your retaining attorney. 261. Such candor may well enhance their credibility. the true extent of their opinions. if appropriately asked by the other side. Finally.The Expert’s Ethical Universe 19 TABLE 2–1. and the limits of your testimony. the limits of your knowledge. Therefore. the limits of your data. . the opposing attorney exerts the push of attempted impeachment. The less admirable experts. the limits of your credentials. and the hypothetical situations under which their conclusions would be different.” Your retaining attorney exerts the pull of retention. Again. both pull and push must be resisted. 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. experts can be separated into two categories. while servants beat him with knotted towels. and identification as above. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. likely be explored. expert testimony is like that. loyalty. yes. p. 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. In the process of cross-examination. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. defend those opinions passionately and fiercely on cross-examination. the limits of your conclusions. having become inappropriately enamored of their opinions rather than of the truth. Gutheil and Simon (6).
1992 . pp 33. 36. Bull Am Acad Psychiatry Law 20:141–152. 1990 Brodsky SL. J Am Acad Psychiatry Law 36:195–200. 2008 Katz J: The fallacy of the impartial expert. 4th Edition.20 THE PSYCHIATRIST AS EXPERT WITNESS. New York. 2002 Gutheil TG. 1999 Commons ML. Weinstock R. Defense Research Institute. 2001 Miller RD: Professional vs personal ethics: methods for system reform. J Psychiatry Law 28:449–457. J Am Acad Psychiatry Law 27:546–553. 8. Williams & Wilkins. Prof Psychol Prac Res 33:307–309. Bull Am Acad Psychiatry Law 20:163–177. 5. Miller PM: Withholding. Psychiatric Times. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. 2004 4. 38. 39 Gutheil TG. Milwaukee. 2002 Candilis PJ. 6. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. 1983 Appelbaum PS. WI. Martinez R: Forensic Ethics and the Expert Witness. Washington. Gutheil TG: Expert witness perceptions of bias in experts. 2001 Slovenko R: Discrediting the expert witness on account of bias. 2. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. Commons ML. MD. 7. J Am Acad Psychiatry Law 29:336–339. SECOND EDITION References 1. Springer Science & Business Media. Miller PM. 1992 Lynett E. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. American Psychiatric Publishing. McKinzey RK: The ethical confrontation of the unethical forensic colleague. DC. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 2007 Gutheil TG. Psychiatric Annals 34:260–270. Baltimore. 2004 Gutheil TG. Simon RI: Avoiding bias in expert testimony. Int J Law Psychiatry 13:249–259. objectivity and fair compensation. J Am Acad Psychiatry Law 32:70–75. Baker TO: Operator’s Manual for a Witness Chair. 3. December 2004.
Prof Psychol Res Prac 34:219–224. J Am Acad Psychiatry Law 36:167–174. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. 1991 . Greenberg SA: The expert witness. Bull Am Acad Psychiatry Law 17:189–202. 1989 Weinstock R. Behavioral Sciences and the Law 5:149–160. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. Leong GG. 1987 Schultz-Ross RA: Ethics and the expert witness. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. J Am Acad Psychiatry Law 33:386–389. Bull Am Acad Psychiatry Law 19:237–248. 1993 Shuman DW. 2005 Rogers R: Ethical dilemmas in forensic evaluations. Hosp Community Psychiatry 44:388–389. the adversarial system and the voice of reason: reconciling impartiality and advocacy.
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Although you are usually working for an attorney. treat. However. discussed in the previous chapter and later in this chapter. that attorney’s client. In the forensic relationship. the patient is your employer. your employer is less clear.CHAPTER 3 First Principles IN CLINICAL WORK. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. you should—be polite and supportive to your examinee. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. you may—indeed. but you are not required to preview your findings. Your duty is to the person for whom you are working. considered for examination of competence to stand trial. or perform some other such intervention with him or her. ineffectual testimony. That relationship is also a source of certain pitfalls of bias. and compromised working relationship. you still work only for your retaining attorney and. indirectly. make recommendations. that person is the recipient of your opinions. that is usually clear. share a copy of your report with the examinee. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. When you examine a plaintiff at a defense attorney’s request. 23 . you may or may not owe a separate form of allegiance to that attorney’s client. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. is being treated in a hospital setting. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. regardless of what is going on with other experts or treaters. forensic work should thus always begin with the question. as when a defendant. or some kind of class action). prescribe.
and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. How you communicate with your attorney is important from the outset. or Ms. not your personal counsel.” implying venality and bias. This point came up in an actual cross-examination in a distant state. and mastery of professional jargon. on purpose—he chose to characterize as “mine. politeness dictates that you call the attorney Mr. Friendly. “Have you discussed this with your attorney?” This threw me. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. which—either by accident or. 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. Watch for this ploy. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. Instead. more likely. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . The Retaining Attorney’s Request After the first forensic question. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. for whom am I working. In this chapter. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. I was asked. informal discussion should be the format. If this issue is in question. This telephone call is far from a mere administrative formality. though this distinction may be intentionally obscured as a cross-examination tactic. It became clear that the cross-examiner meant my retaining attorney. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. The Psychiatrist in Court: A Survival Guide. this approach is self-defeating. the topic is extensively discussed in the companion volume. refer to those sources. clinical experience. the term your attorney will be used to refer to the attorney retaining you as an expert. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier.24 THE PSYCHIATRIST AS EXPERT WITNESS.
if you cannot or should not take the case. such cases should be reality-tested for the attorney. have you been the defendant in a malpractice suit. but I am willing to become familiar with the issue”). as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. which is usually (but not always) clear-cut. Note that your special expertise should exist against a backdrop of your general competence in the field. board certification. 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. I don’t know a great deal about this specific subject. The attorney can then take or leave this arrangement. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. This example is fairly obvious..First Principles 25 chiatrist actually has some knowledge about. In general. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. personally.g. but subtler versions of personal resonance with a case are not uncommon. the hospital. I recommend hearing about the broad issues of the case first and only then asking for people’s names. yet you will have screened for bias before the attorney has taken you too deeply into trial strategy issues that should be kept privileged and private. that is. if your aged mother has just died in a nursing home. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. Your Fitness as an Expert Should you. as indicated by publication. The Question of Initial Bias The last chapter should raise the question: Is there an element of bias pro or con? Do you know the players. Therefore. and so on. For example. These issues go beyond mere conflict of interest. “Look. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. The Expert’s History as Possible Problem Area Are there any blots on your reputation? Your attorney is entitled to know whether any circumstances could prove embarrassing if brought up by the other side in court. experience. no matter how unfounded? Do you have a . 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. the attorney will not have revealed confidential information (the names) to you.
the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. contradicts your present position. SECOND EDITION history of problems in the military. Second. they are all corrupt). . . “Smith failed to plead . in the preceding quote. (1) This quote is interesting from several viewpoints. attorneys are invisible within the court record. Thus. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. 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. are there cases in which you have testified on behalf of the other side.. for the first time while on the witness stand) is a major expert sin. credentialing problems in the past. the court record chidingly notes.g. Fees. for example. Belatedly surprising your attorney (e. a criminal record (no matter how minor). the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. 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. and Other Embarrassments A judge in a recent case had this to say about experts: It has been the experience and observation of this court that in all the medical malpractice trials over which it has presided.In too many medical malpractice cases. in an economic sense. the more words you might have to eat on cross-examination.. juvenile offenses. the judge elects to be blind to the legal opportunism paraded before him daily—attorneys have been known to look for an occasional monetary incentive in bringing particular cases forward—and instead focuses on the experts. . Finally.” when everyone. even if the issues are clinically or forensically totally different. knows that it was Smith’s lawyer who was derelict. who are the strangers in the courtroom. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. . This issue is further discussed later in this chapter. Do your best to address this possibility early. for instance. If you write a lot. including the speaker. Time.. unfortunately. . have taken an opposite position or opinion. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. not for their time and clinical expertise. you realize that the more you write. Similarly. or have been retained by one side more than the other? Review this with the attorney. As is often the case. the ultimate beneficiaries.e.26 THE PSYCHIATRIST AS EXPERT WITNESS. Reviewing your own published work in a particular area is a worthwhile part of your preparation.
Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. Doctor.” Yes. Note also that time spent thinking. The attorney either takes me up on this offer. I also recommend not “nickel and diming. this usually means that the client has hesitation or resistance about my rates. but you are made of finer stuff.” or “I am paid by the hour. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. 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. planning. and try to maintain that rate. whether for psychotherapy or expert witness time. Like the judge previously quoted. “So. Indeed. I tactfully suggest that. choose a fee that you would not be embarrassed to state. grits his or her teeth. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). Therapists who are quite capable of taking an extensive. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. Use timers or check your watch at the start and end of a piece of work and write down the time. I know. nit pick. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. meaning no offense. Don’t charge for a 90-second telephone call confirming the date of . same as you. analyzing. Second. this is a pro bono case for you?”). or challenge the details. since the doctor-patient relationship is not pertinent to the examiner-examinee one. attorneys have timers on all their phones and charge by the split second. 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. or grasps the point. ideally delivered in a calm tone of voice and not through clenched teeth. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. without children bursting in to share their Nintendo triumphs with you). and hires me anyway. allowing me to refer to a junior colleague. and organizing your forensic assessment is part of the work. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. only for my time.First Principles 27 not the forensic context. Doctor?” The only appropriate answer. First. is “I am not being paid for my testimony.” or “Nothing” (and wait for the attorney to crack.” Other witnesses may take this further: “My testimony is not for sale.
You sell only time. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. of course. but in my experience. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. Bitter experience teaches that it is critically important to have a standard fee agreement or contract signed by the attorney (or insurer) and to operate by retainer or payment in advance. it is unfair to your attorney. Keep your vacations in mind. That august body opined that this was not an ethical problem but a business issue or a contract issue. Perry Mason. you are charging for time regardless of the outcome of the case. or other conflict. Ethically speaking. some of which never . If you don’t have enough time. they referred me to small claims court. among others. SECOND EDITION a deposition. You give only testimony. Urge your attorney to bring up your fees on direct examination to get it out of the way. Refuse any other arrangement. Owen Marshall. even if there is). failure to pay is reality. in addition. The attorneys. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. To novice experts. I reported him to the Massachusetts Board of Bar Overseers. 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. for instance. shame. basically consultative services. I took my first major “stiffer” to court eventually and received some of my money. and give the dates to the attorney. or for reading a one-paragraph letter. ideally. the organization in charge of attorneys’ ethical issues. respectively. It should. your fee should never be contingent.e. you can calmly state them without guilt. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. are free to employ contingent fees. but your consultation must be free of investment in any form in the outcome of the case. you will discover that every subordinate clause in each new version will be poured out in blood from your previous failure to anticipate duplicity by some attorney. when asked about your fees on the stand. when you design your own fee agreement. defaulted on payment) by their first attorney. Then. How much work or time should you devote to the case? This depends on your schedule.28 THE PSYCHIATRIST AS EXPERT WITNESS. don’t take on the case. the good folks on L.. at the end of this book. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”).A.
rarely. testator. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. how you feel about the attorney. or will your opinion be used by the attorney to strategize without a report. 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. your consultative. is a tentative trial date known? How do your vacations fit in? This information allows you to allot more time and spread your cases so that you are not testifying on consecutive days for different cases—the expert’s nightmare. someone who has to generate a written report. as a professional. Which comes first boils down to a matter of individual preference. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. Among other things. an individual client. for that matter).First Principles 29 lead to the courtroom. If you are. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. You may be needed to evaluate a plaintiff (or a defendant. that role would be ethically incompatible with the objective testifying role. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. defendant. that is. at some point. Will you be expected to testify at trial. You simply may be a consultant to the attorney on the merits of the case at the outset. As a rule. what your skills or knowledge support. Do one or the other. what your time permits. nontreatment role is clearer. your attorney. or is the matter likely not to go to trial? Are you going to be a reporter. your first task might be an evaluation of plaintiff. You may provide rebuttal material for use by others. is more accountable. Moreover. . You might advise the attorney on how to cross-examine the other side’s experts or litigants. The Final Decision Putting together everything that you now know—what you charge. should you take the case or should you turn it down? The above sequence of queries is part of a negotiating process between you and the attorney or the law firm or even. often in orange-crate–sized lots. working for the attorney or insurer is a far better idea than working for the client alone. how free from bias or conflict the situation is—finally ask. The usual next step begins with your receipt of written materials on the case. going to testify. or even witness. In other cases.
or a tendency to want to withhold information. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. followed by review of the documentation. However. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. Scheduling considerations may determine the first task. For example. The attorney presented the case to me by telephone. attorneys would call you only for ironclad solid cases in which they have every confidence. In any case. though you would not necessarily know this. even in a consultative sense? In the initial telephone call. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. I recommend listening for indexes of venality. There is nothing inherently wrong with this desperation. 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. the minority are the ones who pose the problems. including by obtaining expert consultation. you must ask the question. the attorney may be employing you in a desperate attempt to clutch at some faint hope.30 THE PSYCHIATRIST AS EXPERT WITNESS. On perusing . The point is perhaps an obvious one. of course. Regrettably. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. his dangerousness was the crucial issue. In reality. you may be the ninth expert the attorney has consulted. does the attorney have merit? As a rule. a tendency to assume you will give the “desired” opinion no matter what the material shows. for that matter. the next task is clear. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. in relation to which. compared with some other behavior. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. a behavior that certainly did not seem all that threatening. stating that the patient’s dangerousness flowed from his being charged with slashing tires. 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). 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.
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). therefore. but I emphasized that he and I needed to be clear about the fact that I would testify . Somewhat annoyed. 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. In the first. A delicate balance must be struck between reasonable flexibility about. I telephoned the attorney and demanded to know why he had withheld this history.First Principles 31 the old record. For example. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. will argue with you at this point. In the second. Expert witness work is hard enough without bad faith. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. arguments are the attorney’s attempt to browbeat you into changing your mind. after you have given your verbal report. Most ethical attorneys. I decided those were near-enough equivalents. Underlying this issue is a more fundamental challenge for the expert: how far to go in negotiating with the attorney as to the limits of your opinion. wants to be certain you took note of a particular record entry or deposition statement. the malignant category. then you have to expect the same in the future. such pressure should be resisted.” He wondered if that could be equally well expressed by “areas of competence. the only safe course is not to work with that attorney. based on the patient’s history of significant violence. I told the attorney that she possessed “islands of competence. a document often difficult to unearth but essential to the full evaluation. and the result may be your withdrawal from the case. the attorney wants to be sure you understand the import of certain data. however. Some attorneys. the benign category. which happen to be unfavorable to the retaining attorney’s case. however. based on your review of the database. (Note also in this example the value of the previous record. you give your conclusions. faced with this disappointing fact. Obviously. the wording in which your opinion is couched and the substantive alteration of your opinion. will acknowledge that they agree or felt the same as you did but needed to use expert input to satisfy their own mandates or those of the client or the insurer. Another less knowledgeable group of attorneys will be educated by your discussion. If he or she withholds or distorts information or lies to you initially.) The second red-flag situation occurs when. You cannot afford to embark on a course of work with someone such as this particular attorney. for instance.” After mulling this over. and the arguments fall into two categories. in a competence assessment of an elderly woman.
This suggestion was acceptable. One attorney nearly drove me mad by releasing dribs and drabs of material. In yet another case. and testify to if asked. in an extended phone call. an opposing attorney asked me on the stand when I had received various parts of the database. This was trivial. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. only the final opinion really matters. inclusion of somewhat negative evidence would show objectivity. I said I would change nothing.32 THE PSYCHIATRIST AS EXPERT WITNESS. in a high-profile. finally. It is important to ask for everything from the attorney. moreover. The attorney said he was offended that I should even think he was suggesting omitting something. . He asked me to use the dates of the depositions I had reviewed. I had prepared a 22-page single-spaced report. I told him.” The attorney moved on to other matters. and so on. Since only the final (or courtroom) opinion is determinative. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. This is the final opinion I am giving here and now. the remainder of the opinion. Agreement was struck. In another case. and I accepted. The attorney made a big show of my “concealing” this information. after discussion I accepted that. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. even if some material is irrelevant and other parts are inadmissible. hung up. In a variant on this issue. The negotiating discussion moved into argument. this rationale is especially ill-founded. multimillion-dollar will contest. wanted. and so on. under the specious rationale that this method would permit seeing the evolution of my opinion. his senior partner wanted to deemphasize the subject by changing some wording. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. tactfully. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. in any way. and did not stop until I said. however. the retaining attorney. Your request should be global. in fact. I could not ethically omit it. rather than Volume I. shape or form whatsoever. I did not recall because I do not keep that kind of record. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. Volume II. to “go over” my report. Although delighted with this level of detail. regardless of what may be precluded by rules of evidence and discovery. The attorney asked for major cuts or deletions. and withdrew from the case. “withholding” important data from the jury. that since I had read it and thought it relevant.
feel free to use it if it suits your own preferences. you are creating a checklist. 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. As you read the complaint. I think this guy is probably not insane. directed not toward the patient or examinee but toward the attorney. As you go through the documents. you should consider some important points. a situation sometimes occurs that requires special mention. 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.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. but you can only imagine it because the actual document has not been provided. Recall that a plaintiff can claim anything at first. and connections that can be checked against the primary record data and flag those in some way. each element of which may be confirmed or disconfirmed by other material in the database. after your report. Forensic countertransference is further discussed in reference 2. Either undertaking or turning down such a case is a defensible position. I have found that attorneys for some reason often fail to send the exhibits to depositions. facts. My own approach is as follows. This problem is a variant of a countertransference issue. . “Look. long pages of deposition testimony drone on about the exhibit. even data of dubious validity. He was photographed doing the crime.” 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. First. This ethical dilemma arises when the attorney says. Second. look critically for claims. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. In general. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. Referral to another or an additional expert also may be indicated. I find it helpful first to read the complaint so that you know what the basic issues are. 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. but I’d like you to do this evaluation on him anyway. check the documents you receive against the cover letter to be sure you have everything you should. it is up to you. for example. if you will. However.
you will want to interview the plaintiff. and selection of a safe environment may be required for examining potentially dangerous examinees.34 THE PSYCHIATRIST AS EXPERT WITNESS. you may also request that the attorney’s office create the timeline. At this point. Some discretion. 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). then to check the record to determine whether the complaint or issue has any validity. I read the medical records and clinical material or the equivalent. makes it harder to focus on hot spots of the case or areas of contradiction in the database. for example. exert every effort through your attorney to obtain enough time to do an adequate examination. perhaps by a paralegal. or whoever is involved in the case (presumably. Given the complexity of many psychiatric malpractice cases. the depositions or witness reports. and be prepared to acknowledge this constraint as a limitation on the data. I strongly recommend reading large chunks of material at a single sitting. advance screening. you also may want to review relevant literature on the subject. Note for completeness that some experts like to start by examining the litigant first. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. including your own.g. If the appropriate amount of time for your examination cannot be obtained. the witness. the testator. you are familiar with basic interview approaches). A laptop computer for this task may be quite helpful. if you have not already done so. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. The attorneys on either side of the case may limit the interview time available. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. This permits. . matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. your interview queries would thus arise directly out of the material. third. cold. The Interview After reading the materials. no matter how difficult the scheduling might be. insanity in a criminal context). It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. accept it as a limitation. the defendant.. SECOND EDITION Second. however. or with only the complaint reviewed. 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. Such an examinee-first approach.
the absence of this datum must be factored into the opinion. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. although this irritates some examinees more than writing during the interview. that side’s attorney may refuse to allow you to do so. This decision is legitimate but bears consequences. 3. in one case. Inappropriate interruptions and objections. for some experts. Note that when you are retained by the defense and wish to examine the plaintiff. Examinees who must travel to see you should.” My immediate response. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . but I strongly recommend opposing their occurrence through your attorney. presumably. when examining for the opposite side of a case. an audiotape or videotape of an interview may be constructive. then to read the database. However. unobtrusive note taking probably represents the optimum compromise among choices. alternatively. cuing. more authentic) responses to your inquiries. For example. Examinees commonly play up to the audience or recording device. based on the belief that such an examination can only hurt the case. it might be effective and appropriate to examine him or her first. 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. Jurisdictional rules may make one or all of these procedures mandatory.” was appropriately disconcerting. The fundamental reasons are as follows: 1. then to examine him or her again to clear up matters raised by the written material. to have the interview audiotaped or videotaped. and suggestions from the attorney present may contaminate the process. exaggerating symptoms. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. inhibit free-ranging inquiry. however. the expert will receive a request to have an attorney or paralegal present during the interview or. as a rule. focusing on making a recording. be spared this burden. 2. 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. For a number of circumstances. Verbatim material also can be obtained in this way. it is certainly beneficial for teaching and for self-review for quality assurance. Not uncommonly. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. “You wouldn’t let me!.First Principles 35 If the witness lives locally. If you are unable to prevent the above intrusions.
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. Do the deviations from standard of care sound hokey. This subject is addressed extensively elsewhere (3). and I want to sue him. and so on? ... be it civil or criminal. Mobil. 322) To offer a structure for this stage of the inquiry. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting.. p. a psychiatrist interviewed plaintiffs with an attorney present. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. (4. 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..An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. .” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. a mass tort in Louisiana.. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. Plausibility The first question to ask of the case. 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. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. March. warn once.36 THE PSYCHIATRIST AS EXPERT WITNESS.Attorney Larry Cohen (personal communication. distortion.g.. “I wasn’t myself when I plotted that elaborate armed robbery”? Internal Consistency Does the subject on the side retaining you present a coherent story. but the following vignettes make the point clearly: For example. If the attorney attempts in any way to cue or coach the examinee. as when the complaint boils down to. behind the examinee). The following are four of the principles that I apply as a generic framework for this purpose. in the unpublished 1996 case of Lailhengue v. is whether the case is fundamentally plausible.
The notion of the alternative scenario can be essential for assessing civil claims. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. remember not to offer any treatment or treatment recommendations to your examinee. or for some criminal claims of insanity. he had made several outgoing calls during the time period of the alleged molestation. such as sexual misconduct. 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. whereas the arresting officers and other disinterested witnesses describe a calm and rational person just after the crime? Do other parts of the total database present corroboration or discorroboration of the claims. she assumed the doctor was not present and could not refute her claim. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. how might it have occurred alternatively? Is there another way of explaining what happened. 1978). all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. in a sexual misconduct claim later proven groundless. or the alleged damages? For example. If the situation did not occur in the manner claimed. about the historic English crime. MGM/UA. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. She had apparently established these referents by calling the office and receiving no answer. The phone records aided in challenging the claim by providing a time stamp. even if asked to do so or tempted by medical ne- .First Principles 37 “Alibi” Issues or External Consistency Is there material from somewhere else that challenges or refutes the claim? Does the defendant claim to have been totally psychotic and out of control. Finally. the outcome. however. the following dialogue occurs between the trial judge and Edward Pierce. 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. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. observations. as well as disability evaluations and similar tasks. Alternative Scenario In the film The Great Train Robbery (Crichton M. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive.
The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello.38 THE PSYCHIATRIST AS EXPERT WITNESS. First. as noted early in this text. you do not have to answer any of my questions. Her emotions were strong and appropriate to the content. there are some things I need to inform you about. and others) as part of your exhaustive review of the database. 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. You will be challenged to weave interview data into the totality of the case. or in an open courtroom. you can ask for a break (water. but since I can only be useful if I am objective. she had plausible answers for all my questions. compare the consent form in Appendix 1. I have been retained by (your side. although I hope you will do so. my testimony may help your case. SECOND EDITION cessity as treatment issues emerge in the interview. what you say may come out in a report. what we talk about here is not confidential because I am not your treater. Only when I subsequently read her deposition did her entire . the other side of the case. unlike what you may be familiar with from other doctors or therapists. Do you have any questions about what I have told you so far? If the person has questions. Third. hurt your case. recall that anyone can really be fooled. And finally. Fitting Together the Interview Commonly. and if you do not. the court). I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. and you must keep several issues in mind. in a deposition. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. The relationship is not a medical one. or have no visible effect on your case—only time will tell. defendant. that is. such as informing the examinee which side has retained you. possibly with reporters present. I am entitled to make note of that. and treatment offers are inappropriate. Other warnings. restroom) at any time. seem to be called for out of fundamental fairness to your examinee. in both civil and criminal cases. Note the fully intentional structural resemblance of the above paragraph to informed consent. you will interview the subject (plaintiff. if not. please sit down” but before anything substantive has been said: Before we start. answer them as best you can. move on to the substance of your interview. Second. Is the patient convincing and plausible? Do the words match the music. you are attending to his or her demeanor and its relation to credibility. As you are interviewing the examinee.
” In the civil system. but did that deviation cause the damages.First Principles 39 case fall apart. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. For example. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. but then Dr. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. the preexisting condition must be deducted from the damages. especially when they themselves. 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.. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. the case was highly instructive: interviewees can be extremely convincing. on the other hand. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. a defendant may be mentally ill. particular plaintiff vulnerability for which the defendant must be held responsible. it only means that you’re being conned into thinking that you’re not being conned. The Causation or Connection Dilemma In many forensic cases. Smith did X at this point. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. because of their psychopathology. Jones did Y and the plaintiff did Z. Besides serving as a valuable lesson in humility. 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 . but those efforts may fail or be misdirected and may even make things worse.e. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. because the defendant is not causally responsible for what happened earlier. 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. Such distinctions are extremely significant in the hard monetary realities of the legal case. believe deeply in their position. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. The plaintiff ’s failure to take those remedial steps does count against him or her.
These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. and what the exacerbations were of preexisting conditions. keep the latter indefinitely. work by Pittman and Orr (5) on differentiating serial trauma shows promise. mistrial claims. What portion (usually. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. References 1. Or. SECOND EDITION were of a particular deviation. In addition. . although it has not yet gained broad enough acceptance to be generally admissible as evidence. event. Further research may reveal other promising approaches (6). what the results were of subsequent events. 63 Ohio Misc 2d 533 at 534.40 THE PSYCHIATRIST AS EXPERT WITNESS. DC. and your interview notes. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 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. two major approaches apply: 1) shred or have a reputable company shred the paperwork. 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. Kirby v Ahmad. Washington. if any. and so forth that require revisiting the materials. Even if a case seems “over. 2003 3. and then has other symptoms or more of the same symptoms. appeals. because they would be hard to replace. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. Another good rule is to discard. 2. then is sexually abused by a treater. or 2) return the materials to the retaining agency. or incident. J Am Acad Psychiatry Law 31:6–9.” there may be subsequent posttrial motions. If you are discarding case materials. 1994 Gutheil TG. with permission. American Psychiatric Publishing. all case materials except your reports. they may serve you to recall the case at a later point for research or publication purposes. 2002 Gutheil TG: Reflections on coaching by attorneys.
2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Hamm RM. J Psychiatry Law 24:3–25. New York. 3rd Edition.First Principles 4. 1991 Lees-Haley PR. Chapman. in Clinical Assessment of Malingering and Deception. et al: Response bias in plaintiffs’ histories. Baltimore. 2005 . Otto R. New York. Feinbloom RI. Lippincott. J Psychiatry Law 21:33–76. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. Edited by Rogers R. Brain Injury 11:791–799. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. et al: Medical Choices. Brunner/Mazel. Routledge. J Am Acad Psychiatry Law 33:158–175. & Hall. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. J Am Acad Psychiatry Law 31:232–238. 5. Guilford Press. 3rd Edition. MD. 2007 Borum R. 41 6. 2003 Group for the Advancement of Psychiatry. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Bull Am Acad Psychiatry Law 21:37–52. Williams CW. 1993 Bursztajn HJ. Medical Chances: How Patients. 2008. Zasler ND. New York. 4th Edition. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. 1997 Pittman RK. 1993 Deaton JSD: Toward a critical forensic psychiatry. Assessment 4:321–324. Families and Physicians Can Cope With Uncertainty. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). 1990 Suggested Readings Appelbaum PS. Guilford Press. Williams & Wilkins. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. New York.
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than was actually so before the event in question occurred. 2) breach of duty. this bias means that the outcome of an event appears as though it had been far more foreseeable. 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. once you know it has already happened. Sometimes forgotten is the fore43 . In a suicide malpractice case. I provide several examples of cases—and some of the nuances unique to each type of case—that illustrate and clarify the spectrum of the expert’s work. you already know the person is dead. 3) injury to the patient. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. The discussions within this chapter should be considered an introductory survey. and 4) proximate cause. for example (the most common claim against mental health professionals). in this chapter. More practically. Generally.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of
Types of Typical Cases
course, it is quite a different matter if the on-site treater’s conclusions are internally inconsistent with his or her own contemporaneous observations or are egregious distortions of the diagnostic or therapeutic process. But absent such extremes, great primacy should be awarded to subjective, nondocumented material that is observed and enters into the decision making by the on-site personnel at the relevant time. It is therefore important to suspend your judgment while reading a case until the whole has been reviewed. Each side can be surprisingly convincing when assessed in a vacuum (such as the complaint or interview alone) so that premature closure of your opinion is a great hazard of the trade. Resist this temptation, and flag those claims that need to be checked against other parts of the database.
The Standard of Care
The question of the standard of care is a complex but central issue in malpractice; it is the benchmark against which deviation (i.e., negligence) is measured. Unfortunately, the official standard of care or the wording in which it is couched may vary between jurisdictions. As an expert, you must, of course, familiarize yourself with the relevant local standard and its wording early in your work on the case and apply it to your review of the database. Massachusetts case law, for example, has a rather elaborate definition; the standard of care is that of “the average reasonable practitioner at that time and under the circumstances and taking into account the advances in the field.” By inference, this is a national standard, because advances in the field are professionwide, not regional. Other jurisdictions may have what is called a locality rule, which is a standard drawn from the practice of clinicians in that locality. For example, part of my qualification process in testifying in Durham, North Carolina, which has the locality rule, was to demonstrate the various ways in which I was aware of what clinicians do in Durham. In light of some recent American Psychiatric Association (APA) publications articulating diagnostic and treatment guidelines, how are these guidelines to be construed in relation to standards of care? The average guideline is not itself a standard; rather than describing average actual practice, the guideline often identifies what care ideally should be, that is, best practices. For example, if you write a textbook of psychiatry and law that proposes certain recommendations, those are not the standards of care. Those recommendations are called precatory or preaching; that is, they preach what the best care should be, rather than the required average reasonable care. Those recommendations do not pretend to be the standard of the average reasonable practitioner. All of these citations may be legally considered “evi-
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.
Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
of course). . if present. I find it valuable to look at the social service history. you are seeking consistency and credibility. a post-it. and others. nor are the queries necessarily posed the way you would do so. but depositions consist of attorneys’ questions to various parties. “This is so clear and memorable that I will naturally recall it later. 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. The point may seem obvious. for example. There is something of a translation burden on you to read between the lines to determine the issues. 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. the expert may draw conclusions from the record alone. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. of any queries or signs of missing data that the record generates to be checked later or elsewhere. the next time you read this document for deposition or trial may be 7 years away. as a separate document.” However. you may have to pose your own questions to the parties.Types of Typical Cases 47 the tests ordered. a marginal scribble. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. of your thoughts and reactions. you may be tempted to say to yourself. an underline. through your retaining lawyer’s permission and intercession. Because keeping a medical record is itself part of the standard of care. after the records. as different things may strike you on subsequent review. When reading the deposition. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. or a folded corner of the page. any forensic document) without making some sort of notation of what is significant. In the process of reading. opposing experts. On some occasions. Next. of what this record entry contradicts or supports in the deposition. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. these may not necessarily be the questions you would want to ask. defendants. you read the depositions of witnesses. This notation can be on a separate sheet of paper of similar notes. plaintiffs. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. or whatever. To save yourself reading everything from scratch each time. or it can be a highlighted entry. make some sort of notation each time you read through the record. 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.
“I think you should talk to the retaining attorney. 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. Because of the flow of material and its often fascinating content. Doctor. is historical material. friendly approach into letting your guard down and discoursing freely on your opinions. you may confront the classical poles of the issue. For example. the more helpful it would be in forming your opinion. data gathered at the time of the alleged act. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. Is this defendant someone who seemed to show . and records of any treating clinicians from points close in time to the alleged acts. statements of the arresting officers. but still relevant. or expert. remember to consider diminished capacity as an intermediate condition. The truly challenging case lies between these extremes. a case wherein the defendant had or has a major. in my (and almost everyone’s) view. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. Criminal Responsibility Cases In cases of criminal responsibility. weighing the logic of the deponent’s responses. To read critically.48 THE PSYCHIATRIST AS EXPERT WITNESS. while reading a deposition. are the most significant. These unethical conversations usually have an informal tone: “So. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. In those jurisdictions where the issue exists. On occasion. what do you think about this amazing case.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. your attorney’s confidential trial strategy. Of second-rank importance. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. namely. and so on. 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. These would include witness and victim reports. eh?” Presumably. Out of the entire panoply of available material on a criminal responsibility case. you can be drawn into the prose by the unfolding drama therein recorded. litigant. you are lulled by this informal. SECOND EDITION Although the more information gathered. exert the effort to stand back from the process. it is inappropriate to call or write directly to the opposing attorney. The appropriate response is.
Because of the seriousness of criminal penalties. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. The novice expert should become familiar with useful publications on the subject (7. 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. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. malingering is especially common and problematic in this assessment. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. the interview in a criminal responsibility case has the least power of all the data collected. the cause of the crime. The interview also gives you a chance to assess what might be called a sense of proportion. an injury from which he recovered rapidly without lasting effect.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. Finally. In one case. as with all forensic evaluations (6). a surprising number of individuals avoid treatment. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination.8). Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. I find the interview for an emotional injury case to be of primary value. an unrelated accompaniment to the crime. some on . the result of the crime. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. although mandatory and irreplaceable. and so on. 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. All the interview data must be fitted to the totality of the database. for example. 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. a plaintiff drank from a chemically contaminated bottle and burned his mouth.
I . with intrusive flashback memories. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. The shopper then may sue the store for harassment and consequent emotional harms.50 THE PSYCHIATRIST AS EXPERT WITNESS. The response “My attorney told me not to” conveys its own obvious message. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. preexisting vulnerability.. too. Next to the small table where we were sitting. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. avoidance. Such a search can be embarrassing and humiliating to anyone. SECOND EDITION their own accord and some when given this advice by their attorneys. 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. The interview took place in his basement recreation room. A question you should ask your interviewee is. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. In this situation. only to find that the goods are legitimately accompanied by a receipt. consider the so-called strip search case in which store employees suspect the plaintiff of shoplifting goods and perform an embarrassing or inappropriately confrontational public search or semi-strip search. This history may represent the plaintiff ’s “thin skull” (i. however. but they may also be relevant to assessing damages or preexisting conditions. may be relevant. 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. Finally. History. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. in regard to which the defendants must “take the plaintiffs as they find them”). and startle responses. you again often encounter the previously described problem of factoring out the effects of serial trauma.e. Not only might these provide a context for the injuries claimed. especially idiosyncratic history. 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. For example. “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. He claimed to have full-fledged PTSD. I had to interview him in his home because he claimed to be phobically homebound.
fellow passengers. ate like a lumberjack. 51 This observation was potentially valuable and worth recording. In a famous incident. not totally probative. the jury ultimately decides. yet the observation is valid. 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. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. He gave the impression on interview that if you fired off a . of course. I myself jumped in my chair. There is a fundamental asymmetry about media coverage in almost every case. perhaps so. who. had no signs of trauma whatsoever. don’t assume—examine. and. stoic fisherman. he would have said calmly. then you get the case. unimaginative. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. however. He was strapped into his seat. High-Profile Cases At one point or another. This passenger. the nose of the plane fell into the harbor. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. the alleged malpractice. which the average member of the public really doesn’t understand. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. that is. It is. An apartment dweller sued her landlord for failing to respond to the infestation. it turned out. On the surface of his story. you may be asked to review a case that has been extensively covered in the media before you have been retained. without warning. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. looking straight down past his toes. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. had been in the front row of seats just behind the break in the plane. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. As the “moving . he saw a jagged metal edge and below that edge. injury. the plaintiff or prosecutor can say anything. or crime has generated publicity first. therefore.357 Magnum close to his ear. it seemed to me that this incident would induce PTSD in a stone statue. He slept like a log. on careful inquiry. Initially. dying. One of my cases raised this issue.Types of Typical Cases knew this because. but at incredibly high levels. the case certainly seemed meritorious in theory. to get the actual data. On detailed examination. This case also illustrates the maxim. usually not. and did not dream. the former passenger was revealed as a serious. Boston Harbor with freezing.
selling testimony instead of time. but so do a number—perhaps a greater number—of venal witnesses.” the attorneys have to create the case from scratch. Does advertising your services in Lawyers’ Weekly automatically make you a hired gun? This controversial question skirts perilously close to a matter of guilt by association. the plaintiff and prosecutor inevitably bias the public’s perception. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. “McDonald’s has an obvious duty to weld on the covers of coffee cups with Krazy Glue so that people can’t hold the cups in their laps. 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). but this principle may be readily overlooked in a media frenzy. A plaintiff can say to the media. “Developing and Marketing a Forensic Practice. pushing the case for all it is worth.” In another case. consciously or unconsciously. however. In short. In malpractice cases. you have to be alert to this potential biasing factor and be aware of the media asymmetries. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. of course. By doing this. The defense attorneys must say “no comment” each time. None of this trumpeting means anything. Even though you may try to tune out the media. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. rip off the covers in moving cars. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove.) Another stigma of the hired gun is the counsel of perfection. SECOND EDITION parties. Ninety-nine percent of the time. and spill hot coffee over their thighs and sue McDonald’s. you simply may be reading your newspaper before you are asked to consult on a case. for example. Some attorneys may try. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. there is no case until it is brought. because they don’t want to give away trial strategy. until it is proven in a court of law. the defense attorneys cannot answer the media’s questions.” in this volume provides more reliable methods of publicizing your practice. (Chapter 9. for example.52 THE PSYCHIATRIST AS EXPERT WITNESS. to influence the public powerfully in advance. lest your review should begin with a one-sided perspective. Therefore. the standard references the average reasonable . a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue. in hopes that some of that public will later become jurors.
Indeed. the counter to such claims often begins with the phrase “Well. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. 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. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Waffles are evasive. . The real issue is: does the standard of care require more.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. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. but malpractice litigation hinges on what is required by the standard of care. Some experts believe that physicians are never wrong and always justify whatever the physicians do.” Many “good ideas” theoretically might have contributed to the patient’s care. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. I personally have never heard of or read that standard anywhere... it’s a very serious situation. For example. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. Anyone always could have done more.” This testimony is a classic hired gun claim. “If the care had been adequate. 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. “They (the defendants) should have done more. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen. Another variation on this theme is. but no one lives real life like that. The hired gun often advances a perfectionistic standard as though it were the average. the likely explanation is that the treaterexpert made it up to suit his views of this case. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. in the real world.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. An even more malignant twist is the made-up or artificial standard.
Note that this entire chunk of testimony is one run-on sentence. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. the mental state and what’s gone on in that patient’s mind is very uncertain.54 THE PSYCHIATRIST AS EXPERT WITNESS. 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]. 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. he should have been [that is. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. Getting the feel for how the waffle works takes a certain amount of reading of case material. reasonably would have been. actually. goes all the way to [another city]. It certainly should have been considered. he has taken in despair 10 lithiums some years back. of unpredictability. an emergency petition ideally would have been. and where I believe the standard of care was breached was that the patient. he gets frightened. More to the point. The entire answer took four full deposition pages. it seems nearly impossible to extract the actual opinion from the thicket of prose. Note how that witness actually avoids responding. and that is frequently the hallmark of the hired gun. In the following example. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. we don’t know whether he stops or doesn’t stop and get [drug] or not. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. the standard of care required that he be] involuntarily admitted to a hospital before [month] of [year]? Answer: It is my opinion that one of the possibilities that should have been seriously considered would have been an involuntary hospitalization. reasonably should have been issued so that the patient could be brought back for reassessment in terms of their thinking and what possessed the patient to leave. then committed suicide. a reasonable history. That was the answer in toto. but that is the answer to a different question. . I am not in a position to tell you that that would be the only choice. an hour before that or less signs a 3-day statement and then just disappears. a patient had escaped from the hospital. rather than ideally. took some blood pressure pills one time in [city]. specifically. but. there is a lot of despair and a great deal of thought disorganization in the patient. that this is a patient with some history of a.
1983 Bursztajn H. Science 211:453–458. a trend of such waffling answers in deposition does set off my hired gun detector. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception.Types of Typical Cases 55 The following is part of a response to a request to list deviations from the standard of care in a Tarasoff-type case: It’s a consequential piece of behavior that creates the most essential elements of a treatment plan. Gutheil TG. 2008 5. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. Bursztajn H. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. we must consider another possibility regarding the above examples. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. Kahneman D: The framing of decisions and the psychology of choice. In fairness. 6. Brodsky A. 7. Int J Law Psychiatry 6:317–329. 3. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. References 1. we may be dealing with an incompetence issue. 2002. Yet. Williams & Wilkins. Conceivably. with impunity. 4. 2. Guilford Press. which makes sure the patient is safe within a structured environment. and that includes they would be safe within or without the community. American Psychiatric Press. MD. II: clinical uses of legal standards in the interpretation of subjective data. J Exp Psychol 1:288–299. Bursztajn H. Finally. 1981 Gutheil TG. but that doesn’t mean that it’s without supervision. 1991 Fischhoff B: Hindsight. Int J Law Psychiatry 6:331–350. . foresight: the effect of outcome knowledge on judgment under uncertainty. note that one cannot. Washington. 1975 Tversky A. for better or for worse. I: malpractice prevention and the use of subjective data. Edited by Simon RI. Gutheil TG. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. I would prefer never to assume malice when incompetence would serve as an alternative scenario. Baltimore. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. DC. Shuman DW. 3rd Edition. et al: Decision-Making in Psychiatry and Law. New York.
American Psychiatric Press. American Psychiatric Press. Washington. Viglion DJ. Washington. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Bull Am Acad Psychiatry Law 20:409–418. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. et al: Detection of malingering in competency to stand trial evaluations. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. 1995 9. Legal Studies Forum 9:41–53. Law and Human Behavior 19:493– 505.” J Am Acad Psychiatry Law 35:112–117. J Am Acad Psychiatry Law 34:215–223. insanity. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. Bull Am Acad Psychiatry Law 21:23–36. 2nd Edition. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. 2000 10. psychiatry and the law. Meloy JR.56 8. J Psychiatry Law 28:5–18. 1993 . Psychiatry 1:26–28. 2005 Simon RI. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. DC. 2004 Knoll J. DC. SECOND EDITION Gothard S. THE PSYCHIATRIST AS EXPERT WITNESS. 1999 Gutheil TG: Fundamentals of medical record documentation. Gutheil TG: The problem of evasive testimony: the expert “waffle. Psychiatr Clin North Am 17:439–446. Psychiatric Services 50:767–773. 1992 Gutheil TG: A confusion of tongues: competence. 1987 11. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists.
preparing for what to expect from the various witnesses and documents. the attorney will likely write the actual prose of the 57 . 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. 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. Attorneys probe and define the limits of their cases. 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. if any. Note that some jurisdictions practice “trial by ambush” without expert discovery. Under some circumstances. In both cases. there is the period known as discovery.CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. From the viewpoint of the expert.
SECOND EDITION answers for you. The Psychiatrist in Court: A Survival Guide. If you discover this to have occurred. it is always unethical. that is an attorney’s function.58 THE PSYCHIATRIST AS EXPERT WITNESS. even worse. This approach saves you from having to retract misstatements on cross-examination. On occasion. or some combination of the three: getting your opinion. attorneys sometimes ask you for your tax returns of the last 5 years. If you have never given a deposition or you feel a bit shaky about the procedure. I advise you to withdraw from (or refuse to take) the case. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. either from clinical evidence or experience or from facts in the database. Do not attempt to decide what is or is not objectionable yourself. Depositions The second major area of discovery is the deposition. It is critical that everything in your interrogatory be something that you have already decided you are able to support. For example. read every such document before it is turned in. the interrogatory is sworn testimony. . Opposing attorneys usually follow one of three agendas. based on his or her interpretation of the rules of evidence. the expert. without retaining you at all. and painting you into a corner. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. reasoning that they can always modify their opinions at trial when the right questions are asked. obtaining admissions. you do not want to be associated with this attorney. In addition. 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. review Chapter 5 in the companion volume to this book. 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. 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. guided by your input as to what you expect to testify to at trial. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). However. hyperbole hurts you.
a telephone conference. a witness’s deposition or medical record that you had not seen before your own deposition. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. but not ideally. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. In this latter context. admissions and concessions of points or . inform his or her experts about facts or issues to pay attention to. select rebuttal witnesses. but this is a subintention within the larger discovery framework. taken before the entire database has been acquired or reviewed by the experts. during the course of the deposition. who is in turn obligated to inform the attorney on the other side of your new opinion. the police. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. This ploy usually can be defused by your attorney. time considerations. and deadlines may dictate this suboptimal condition. and so on. Just answer the question. 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.Discovery and Depositions 59 Getting Your Opinion First. The attorney can then prepare cross-examination. This discovery function is a completely legitimate task and one with which you should cooperate fully. as a way of ensuring that your opinions may be brought out at trial. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. the attorney. 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). and so on. On the other hand. Attorneys also stress that the deposition is their one chance to find out what you have to say. Of course. or a full-fledged repeat deposition. This information may or may not trigger a supplemental step for you in the form of an interrogatory. if any. When you subsequently receive. however. to empty your wordhoard. the defendant. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. over and above what has been conveyed in reports or interrogatories. as the Anglo-Saxons phrased it. the attorney is not averse to discovering precisely those points that will help his or her side of the case. the plaintiff. for instance. you are ethically obligated to so inform your attorney. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. depositions are occasionally. scheduling problems.
At trial. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. In a wrongful commitment case against the hospital. competence. based on paranoid-sounding content. Truth. Accuracy addresses the clarity of your vision in relation to the known facts in the case. however. your) side of the case. His mental status was not particularly demonstrative of symptoms of mental illness.60 THE PSYCHIATRIST AS EXPERT WITNESS. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. A patient was committed because of threats. to kill coworkers. fairness. You are locked in to that testimony. insanity. SECOND EDITION views detrimental to the other (i. of course. Indeed. even though it was the preadmission history. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. 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. under oath. or damages—the entire gamut of forensic possibilities. that justified the admission. so that your opinion is constrained or limited in a way that decreases its impact. although the history. The answer was no. what are we to believe. The points may relate to guilt. of course. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. he denied to the admitting physician that he had any violent intent. not the mental status by itself. raised many possibilities. The most familiar variations include attempting to get you to generalize about psychiatry and ignore the differences among the schools of thought within the field. any contradiction is obviously damaging to your credibility: “You swore this now and that then. For example. and accuracy (3).e. that is. 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. negligence. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness.. This procedure elicits sworn testimony. Your Goals for the Deposition One scholar has described the witness’s goals as truth. . also under oath. When you later give testimony in court. much was made of this testimony. On arrival at the hospital. conceptually. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. is the final standard.
intense concentration sustained over hours is hard work. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. your opinions (and their limitations). . 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”). focused. and vigilant at all times. try to eliminate distractions. A small number of attorneys attempt to wear down the expert by sheer passage of time. alert. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. To do your job. however. Get enough sleep the night before the deposition. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. Rather.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. and your planned testimony. The expert should clear a full day for the deposition to be on the safe side. will spend hours inching through the expert’s credentials. it is an essential part of the evolution of a case and thus your role in it. More details about this necessity are discussed later in this chapter. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. if more time turns out to be required. aware of the serious weakness of the substantive aspects of their case. looking for dirt before even addressing the instant case. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. as noted above. Prepare for this. Unfortunately. you were probably not paying sufficiently close attention. several factors urge clearing substantial blocks of time for deposition. hoping to hit the key points if only by accident. this also takes a toll on the court reporter. If you do not go home after a deposition feeling tired and drained. another deposition date can be scheduled. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. Still others. you must be rested. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. 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. Occasionally.
or evidence of a propensity for violence. ask that it be broken down. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. 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. but it is quite risky and may compromise clarity. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. in order to determine competence. Second. no.] Answer (by case manager): I don’t think I would agree with that. And the third part of your question is. ask to hear it again or have it read back. Question: So. “The patient gave no sign. I don’t—I wouldn’t agree with you there. yes. yes. Question (attorney for staff member): Knowing what we know today. On rare occasions. If the question is compound or complex. you can give a useful compound answer to a compound question. A more effective answer might have been. I am serious. in the following example. 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. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. or you knew and didn’t act. which I codirect. they have to enter into a dialogue with their patient. let me answer all three components. so you were negligent. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. warning. the case manager’s lack of understanding might be negligent. If there is the slightest doubt. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. his act could . First. to be an appropriate way of determining competence in the clinical situation. 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. it is serious. therefore. Note. so you were negligent.62 THE PSYCHIATRIST AS EXPERT WITNESS. this could be used to instruct both the forensic assessor and the treating clinician as to a means of determining the capacity to enter into informed consent.
paranoia. reveals the hazards of too effusive. did not constitute sufficient evidence of bipolar disorder (although. the patient manifested rapid press of speech. For example. making a chart entry based on what you were told by other staff —for example. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. Gee. I sure hope I saw him because I usually don’t write things unless they are true. But this witness has set a standard for herself: “hope for truth. that the witness specifically remembers such a detail.] Answer: Right. “I don’t recall.Discovery and Depositions 63 neither be foreseen nor be prevented. Clinical data also can be cut into discrete segments to attempt to refute. or did you make that entry based on information given to you by others? [These are. of course. The following excerpt of testimony given by a naive fact witness. no. [The witness sets her own standard of care. not the individual element. too discursive. Question: Did you observe [patient] attending those meetings.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. you write down what you have observed.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom.” would be perfectly okay. right. Obviously. which might be used against her nursing colleagues. The deposing attorney inquired. a patient with apparent bipolar disorder challenged an involuntary commitment. and too extensive an answer to deposition questions. social obnoxiousness in various ways. [This is not an answer to the question. moreover. It is unlikely.] Yet another deposition tactic is what I call gerrymandering the data. “In a vacuum. challenge. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. not what others have told you? [The attorney tightens that very screw. . vulgarity. When seen. of course. from a previous shift—is universal practice. the totality of symptoms did so). 5 years and hundreds of patients later. In addition. and grandiosity. or weaken certain conclusions (4). not the only possibilities. in a vacuum. the witness should decline to answer yes or no to such a question. Her answer ignores the fact that the record does not always note the source of the clinical data.”] Question: Is that the procedure in which you make notes. testifying 5 years after a suicide. any good nurse does that. the answer.] Answer: Gee. Note that an excellent and self-contained answer to such a question or line of questions is.
Answers Deposition answers are drawn from a surprisingly shallow pool. in essence. usually accidentally. The Psychiatrist in Court: A Survival Guide. 2. Do not tolerate this interruption. in the belief that your pause means you have finished. The pause also allows other attorneys to object. not only for the spelling of your name but for contact after the deposition for questions. each speaker should finish before the other begins. drugs.64 THE PSYCHIATRIST AS EXPERT WITNESS. and the like. instruct you not to answer. the trap of double negatives in the questions. 3.) Your answers must be verbal and aloud. and carefully for the stenographer. “yes. lack of time frame. If any of these summary phrases do not trigger recognition. Attorneys may sometimes interrupt your answer. and the importance of speaking slowly. incomprehensible questions. Speak slower than usual.” “I don’t recall. cannot be quoted out of context. terms. Also remember to listen carefully to the objection. Some key points made in that volume are the hazards of guessing. in effect. Spell unusual names.” “no. Pausing allows you to replay the question in your head and to think about your answer. clearly. If your concentration slips and you give an answer that you later believe was wrong or even misleading. pause a moment. whose written record will be the actual form of the deposition in all future contexts. who cannot take down two simultaneous conversations and produce a clear record. but sometimes they do so deliberately to distract you or to break your concentration. (See also Chapter 5 in the companion volume. SECOND EDITION The Pregnant Pause After the question is asked. because the stenographer cannot record winks. or you might infer something useful from the type of objection posed.” “I don’t know. a garbled record from too-fast speech wastes everyone’s time and money. your attorney may be trying to call your attention to something. Other useful basic tips include the following: 1. If your attorney says. They are. Overlapping dialogue is awkward or impossible for the reporter. nods. Giving the stenographer your business card before the deposition is a highly useful courtesy. review the corresponding discussions in the companion volume. Insist on finishing your answer to your satisfaction. not your glib response in the deposition room. Correct any errors. and other myoclonic responses. and so on.” or a short narrative response that contains the question so that the response. Be careful about overlapping speech. “Objection. Recall that the written transcript is the durable version of the deposition. shrugs. insist on a time frame. shakes. immediately correct .” reflect a moment on why the time frame might be important in relation to that particular question.
If I said that. I’d be lying. pp. this may be phrased as when to throw away the “throwaway” questions. . but I can’t say that any of them were [sic] precisely like this one. In a suicide malpractice case. Second. “Doctor. the deposition may be paused for that consultation. However.. 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. When in doubt. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. the doctor might answer: “Well. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. Therefore. because no two fractures are exactly alike. I tell a lie. but leaving the error on the record means having to retract it on cross-examination. .Discovery and Depositions 65 it on the record. would you agree that a patient’s sui- . Therefore. . exercise this option. if you are concerned specifically about a matter of privilege that may govern your answer. Therefore. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer.. No. he could accurately answer in the negative. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. . .To tell the truth. First. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. the entire deposition takes place under oath and under penalty of perjury. the deposing attorney may ask.6]. Two points about this problem should be kept in mind. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. To err is human.) When to Throw It Away In my consultative experience. (The question of coaching is more extensively addressed elsewhere [5.. for example. As a deponent witness. where you are retained by the defense. .” (3. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one.” Of course. 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.
The moral here. Quibbling over the possible exceptions or equivocating in some way helps no one. and you answer it. 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. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation.66 THE PSYCHIATRIST AS EXPERT WITNESS. the novice witness relaxes and loses focus.” At that point. “Just a few more questions. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. make the concession.” Wait to relax only after the stenographer has put away the machinery. on the record. With an encouraging smile the attorney looks expectantly at you without saying anything. check your watch. . thinking about dinner and work to do later. It is not the defendant’s negligence that is at stake in this situation but your credibility. in the colorful argot of the national pastime. not unlike some patients in psychotherapy whose doorway pauses—“oh. have some water. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. influenced by the TV show Columbo. an attorney may look ostentatiously at his or her watch and say. throw it away. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. Remember that the failure to write something down may be below the standard of care. of course. just one more thing”—contain vital material. by the way. and move on. and we’ll be done. Subjected to the silent treatment. Your retaining attorney may also get into the act. Occasionally. still. now begins to fire rapidly at the witness. wait until it gets ridiculous.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. having inexplicably found his or her second wind. When the answer is that clear. Doctor. but you know enough not to get involved in that “thing. may attempt to get some off-the-record insight literally in the doorway. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. is “It ain’t over till it’s over. but the lack of the note did not cause the suicide. an attorney. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. The attorney asks a question.
This method sometimes involves carefully answering the question that the attorney should have asked. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas.” . if you’re grossly suicidal and you have access to guns and drugs and alcohol.” in a manner to ignore those feelings. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man].. that we can’t isolate ourselves with notions of “I’m not part of our society. 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. but I’m in favor of sensitivity. “I understand you to be asking me. Note how the first question was a total loss and had to be rejected completely. rather than asking about. the subject matter.Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. I find your question a little confusing. 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... those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. make sure you include the question in your answer on those occasions so that no one is misled.” Avoid the narcissistic trap of “I can answer anything. and this response is perfectly appropriate. as is “That is outside my area of expertise.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. and answer that part.and the answer to that question is . “I don’t know” or “I don’t remember” is a fully appropriate answer.. No expert is expected to be an expert in everything or to remember everything. they often fail to realize that they do not have forensic evidence to back up those notions. therefore.. The only valid answer is that those questions are outside your area of expertise. Some questions are curious because the attorney appears to be flailing at. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can.. For example. 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). using categorization.
careful speech that may be more formal. There are good hospitals out there. the next question will be coming your way. This fight is an attorney-to-attorney matter. more pedantic. . and so on. Your attitude should convey. Because the stenographer (and not the jury) is your audience. but your belief might interfere with your detection of negligence in this case. Clinicians may be tempted to call on their clinical skills to temper violence. In one deposition. scream at each other. for example. In the specific malpractice context. no matter how generic or basic it may seem.” as it were). The only assumption you should make is good faith. authentic or merely theatrical. and far less friendly and instructional than it would to a jury. this implies arranging coverage for your patients should a crisis occur. 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. more boring. you will be addressing him or her in slow. and demonstrate other regressive behavior. I know that’s a good hospital. should that become necessary. mediate the debate. stand up in their chairs. clear. fortunately. you will make it worse.” This position of timeless patience puts the onus appropriately on the attorney to move things along. As noted. you assumed it was a medical record in good faith. stay seated and keep quiet until it is over. If the admission note turns out to be a forgery. and you might well know some of them. “I can continue until midnight. Assumptions The deposing attorney may ask. after which the expert examines for evidence either way. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. so I assumed that they knew what they were doing. The two sides. When everyone is through. clear. That is as it should be. or facilitate calm negotiation. unfailingly polite. that is not your problem. threaten to go before the judge to plead their points. occurs rarely may throw the novice witness: a roaring fight between attorneys.68 THE PSYCHIATRIST AS EXPERT WITNESS. heretofore quiet and almost appearing bored by the proceedings. “Did you make any assumptions about the case before you began?” You may be tempted to say. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. meaning that you assume that the documents are what they seem to be. the parties are really the parties in the case. firm.” This assumption is dangerous because it suggests bias. The only vital difference is the way in which you speak. more technical. A situation that. never losing your cool. “Well. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. Do not do anything.
of course. Comparably. both sources are “authoritative”: PDR contains the actual package insert information about drugs. have their limits. merely official. desperate for stable islands of consensus in the tossing seas of uncertainty. Be sure to maintain a sense of proportion about these references and their utility. After reading the entry carefully. yet the clinical diagnosis and treatment still may meet the standard of care. no one wrote a previously published book or article with the exact case in mind in which you are involved. you cannot take the position that no text is authoritative. inescapably. you may be asked to supply the names of authoritative texts yourself. Most modern books and articles have multiple authors or editors. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. However. In a criminal context. or article) is authoritative in the field or in the subject of the current case. For example. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. the disclaimer at the front disavows its applicability in many forensic contexts.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. the parallel assumption would be “Sane. and DSM gives the formal criteria for diagnoses. note whether you agree or disagree in general with the stated points. chapter. the examining attorney may ask you if a specific text (book. Remember. competent. Moreover. this is a matter of risk management for the pharmaceutical companies. these publications are not uniform in authoritativeness.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. 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. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. Novice experts. including those parts which conflict with your testimony. But both. may imitate the attorneys by overvaluing these texts and ignoring their limits. In one limited sense.” Learned Treatises In the course of a deposition. but ask to be shown to which one the attorney is referring. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. and innocent until proven otherwise. Alternatively. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . Some experts respond that the DSMs are not authoritative. to make an informal clinical diagnosis. then.
the camera is . but this is not your problem. Any notes. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. Above all. especially if details remain unclear or if over time the clinical condition has changed or evolved. statements.70 THE PSYCHIATRIST AS EXPERT WITNESS. Obviously. laboratory values. Meet with the attorney and review the issues. SECOND EDITION When quoting the literature. and you may have to furnish copies to opposing counsel. In some cases. The Video Deposition A modern wrinkle on the procedure is the video deposition. whose transcript will endure and be used for any impeachment possible. You must exercise some care in these discussions as they may be discoverable. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. consult your own attorney.A good rule to work by is that the statements you make in court should be of the same quality and reflect the same scholarship as if you were making them at a scientific seminar or publishing them in a reputable journal. you will need to review a wide array of information. Give both (or several) points of view if they exist. outlines or summaries for quick reference) may be subject to subpoena for the deposition. this conversation is protected.. Arrange to do so with the attorney sufficiently early. some discuss details of trial strategy in their letters to you. remember to go to bed early. in the video deposition. In contrast. well before the deposition. check the accuracy of any numbers (9). rehearse—the details of the links between your conclusions and the facts. or “cheat sheets” (i. Frankly admit if anything has been removed from your file. 571) Final Predeposition Preparations Before the actual deposition. Your attorney then can communicate with the retaining attorney. record notes. The latter may be privileged. Many attorneys anticipate this problem and send only bland correspondence... Under some circumstances. you also may want to meet one more time with the attorney’s client before the deposition. be balanced and accurate. and so on so that you can buttress all your conclusions with specific elements from the database.e. summaries. (8. If you are really unsure about something. actually visiting a site may be important. In addition. let the attorneys determine whether it is discoverable. review your files as diligently as if you were going to trial.. it is wise to review—and if necessary. The usual audience of the standard deposition is the stenographer. police reports. Also. p.
you should try to direct your gaze toward the camera lens. Most court reporters are extremely good at their jobs. As in the trial described in the next chapter. the video may also serve as the vehicle (in this case. My personal favorite is when the phrase. representing the jury. not at the ponderous. careful. and pedantic level of the ordinary deposition but in basic. checking for errors and typos. “It’s an us-and-them situation” was rendered “It’s an S and M situation.” 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. 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. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. at times. this time in a permanent record. trial-suited English. . “irresponsible” as “responsible” are small changes with profound results. and must beware of inappropriate gestures and personal bodily attentions. If the deposition has been particularly instructive or noteworthy. the deponent expert should always ask for a personal copy to review in preparation for trial. Remember to keep your language level. but under some circumstances the notarization can be waived. the expert may wish to retain a copy for teaching purposes after the case is over. instead of—your personal appearance in court.Discovery and Depositions 71 the audience. you are under constant scrutiny. When you receive the deposition transcript. If the expert is known to be unavailable for the trial dates. and the deponent signs under pains and penalties of perjury. After the Deposition Always ask to read and sign the deposition. At least one copy of the transcript is returned either to the court reporter. This approach risks eventually being papered out of house and home. of the word “not. The video deposition presents a number of possible pitfalls. say. but errors can creep in.” and rendering. the retaining attorney. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. who may see the video displayed in addition to—or. read it very carefully. In the current economy. Recall that omission of a comma. or the deposing attorney for distribution to the parties. jargon-free. juror-friendly.
5. MD. 2003 Kaplan HI. The Practical Lawyer 39:55–63. Baltimore. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. MA. Bull Am Acad Psychiatry Law 10:17–27. 39–40. Falmouth. legal fictions. MA. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). Lippincott. 2007 Gutheil TG: Reflections on coaching by attorneys. Defense Counsel Journal 4:174–179. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. Williams & Wilkins. Milwaukee. Baltimore. Woodruff MS: Deposing experts. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Mills MJ: Legal conceptualization. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. Defense Research Institute. Vols 1 and 2. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. 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. Gutheil TG. Child Abuse Negl 17:571–572. IN. 1987 . 4. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 6. 1999 Babitsky S. Simon RI. 1996 2. 2008 Rice B: Malpractice: how to survive a deposition. J Am Acad Psychiatry Law 29:313–318. 6th Edition. South Bend. 9. Simon RI. Current Psychiatry 7: 25–28. 7. SECOND EDITION References 1. 1993 Malone DM.72 THE PSYCHIATRIST AS EXPERT WITNESS. 1983 Gutheil TG. Suggested Readings Babitsky S. 2005 Suplee DR. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Willliams & Wilkins. MD. J Am Acad Psychiatry Law 31:6–9. WI. The Practical Lawyer 33:69– 78. 2006 Gutheil TG. 3. 1982 Gutheil TG. 8. Med Econ 82:45–48. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. SEAK. SEAK. Falmouth. 2001 Baker TO: Operator’s Manual for a Witness Chair. 36. National Institute for Trial Advocacy.
review that chapter. 73 . examining the companion volume. 1. For the expert. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. and they are the subject of this chapter. 2. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. pled out. The Psychiatrist in Court: A Survival Guide. Nevertheless.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. In this chapter. I addressed the six Ps of trial preparation. For experts who have spent little or no time in court. If you are testifying away from home. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. is recommended as an orientation. For the expert witness. Planning. I review some of the basic courtroom procedures. the same six Ps should be reviewed but with a slightly different emphasis. trials do come around every so often. settled. and devising means of locating key passages in the database quickly. Preparation. If you are uncertain about the guidelines for trial preparation. 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. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public.
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. If you have a disability. the unknown issues. Define the limits of your testimony. Clarify and confirm your travel arrangements. Consider taking a taxicab to local courts to avoid parking hassles. location of restrooms. Build in contingency plans for the possibility that the trial extends into the next day at least. practice sketching any visual aids you will need for the courtroom blackboard. parking arrangements. 7. Review the weaknesses in your opinion. and what the emotional climate of the courtroom is. the floor of the courthouse on which the courtroom is located. You also need to hear how the trial is going. Practice. and the data relevant to the other side of the case. the relevant literature. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. On cross-examination. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. and your past experiences. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). 6. It is not enough to know the database. 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. Even more distressing. 4. You should rehearse ways of expressing information to the jury. what the judge is like. 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. and the expected cross-examination. . Pretrial conference. Pitfalls.74 THE PSYCHIATRIST AS EXPERT WITNESS. and all such details. Confirm travel arrangements and other details. The pretrial conference is probably one of the most important stages of preparation for trial. 3. the contradictory evidence. the location of the trial. Presentation. you need to know through choice and practice how you will convey your opinion to the jury. your publications (especially those relevant to this case). Most of these matters are best handled on direct examination where some measure of control can be exercised. 5. Insist on this conference if the attorney is equivocal or resistant to the idea. Clarify in your own mind how you plan to deal with questions about your fees. what previous testimony has been given.
may occur prior to trial (occasionally. Such a hearing. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. particularly experts. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge.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. but if you are the only one standing.. you will find it valuable to locate the restrooms and telephones. 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. and to ensure that recognized approaches to the subject matter are chosen. much valuable information can be gained and the tone of the room determined. rise for the judge’s entrance. Supreme Court case.S. sit down. The topic requires more extensive discussion (1). When you are allowed to hear the testimony of other witnesses. Wait in the public seats until actually called to the stand. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). 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. Practical Matters Preparing to Go On Many courts sequester witnesses. this kind of potentially valuable hearing and screening device can also be abused (2). From the viewpoint of the expert. which are sometimes in obscure locations in older courthouses. the best approach is to exercise care about the methods used to reach conclusions. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. and whether the testimony will fulfill the legally required expert function in the court. where the jury will be and what .e. that is. Regrettably. its methodologic reliability. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. experts are not allowed to be present in court for the testimony of any other witnesses. to be able to articulate the bases and reasoning behind those conclusions. Before going into the courtroom. 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. Once in the courtroom. named for the plaintiff in an important U.
allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. Key documents might include my report and interview notes. On the other hand. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. The downside is the need to remember a vast amount of detail and to recall where. even for experienced experts.. Each preference has its pros and cons. because his or her opinion is being given from memory. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. and ensures the accuracy of your recollection by direct verification.g. 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. 2) as noted. When no documents are before you on the stand. The expert appears more confident and knowledgeable about the case. having the whole database on the stand permits greater support of your testimony with specific data from the documents. and 3) you may become lost in excessive data. a particular citation is. or your own table of contents devised for more extensive documents. dog-eared pages. yellow self-stick notes. What to Bring Experts and their retaining attorneys vary in whether they prefer. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. as are all the substantiating data.76 THE PSYCHIATRIST AS EXPERT WITNESS. while the experts are testifying. the opposing attorney cannot search through them for something with which to impeach your testimony. SECOND EDITION the room looks like from the hot seat). Note that some anxiety is normal. in an often extensive chart or deposition. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. The expert should determine which of these two approaches is more suitable. 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). only a copy of the expert report that is already in evidence or only a curriculum vitae). tabs. essential medical records . Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. My own preference is to strip down what is brought. Recall that in almost every case. if needed. the attorneys will have it). Note again the importance of having and practicing a plan of organization. the entire database is usually present at both the attorneys’ tables and therefore is immediately available.
and you will not go wrong. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. or if you must. Arrange appropriate coverage so that you do not have to worry about being reached. affidavits. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. It is important to include material that supports the other side of the case so as not to produce (or seem to produce) a partisan trial database. I take to the stand a one-page table of contents (i. I can use my table together with the attorney’s copy of the deposition. Stick to the conservative business mien. during breaks. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. Finally. 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. the bored juror. Avoid either ostentation. perhaps comfort should rule. do not wear new clothes. and check in. eccentricity. and similar data. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. It is unclear whether either strategy is superior to the other. glass. Arranging for a cup. the defendant or . Do not wear or carry your cellular telephone or beeper. your mode of dress should convey the fact that you are a professional in the courtroom on business. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. 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. depositions. in the sense that you are usually under observation by someone—the bailiff.e.The Expert in Trial 77 (pruned to relevant periods if needed). showing off how busy you are and how court is taking you away from really important matters. If I need the actual page or quote. Demeanor Being on the stand is not unlike being filmed. For depositions of less central players in the case. highlighting marker. the bailiff usually will keep it filled. or carafe of water is an excellent idea. This table of contents enables speedy reference to key facts. If you are completely uncertain about what to wear to court. and cutting-edge high-drama fashion or excessive informality.. ornamentation. what you wear should fit well and be well broken in. testifying is thirst-provoking work. A handy pen or pencil. if you must. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. ensure that they are turned off. Above all.
Make your point because it matters. humor may seem disrespectful. SECOND EDITION plaintiff. but of the jury or the entire process. Beware of “involuntary” gestures. Scholars recommend keeping the front of your body open (by not folding your arms. Doctor?”). and stuffy. or obtuse to the seriousness of the issue. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. fluffy. or degrades you. not of the attorney in question. sneering. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. you know or should know that it is not personal and has nothing to do with you. get interested in what you have to say and stay interested. . Attorney (with a slight sneer): Isn’t it true. you are likely to be too involved and therefore possibly biased. With discretion. 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. as follows. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. it is important. humor directed against yourself may show that you do not take yourself too seriously. and you are unfailingly polite. however. demeans you. Avoid personal body attentions (such as scratching) as much as possible. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. and sarcastic. A witness with an apparent chip on his or her shoulder (and in court. Be clear. Such reactions may be misconstrued as disrespectful. you win the exchange. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. all such chips are apparent) is particularly unconvincing. There is no reason for a teacher to get mad. If the attorney is hostile. even when someone else is speaking. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. and you want the jury to understand it. for example) as body language consistent with candor. such as rolling your eyes at the jury when a particularly fatuous question is asked. Without such alliance. obnoxiously facetious. an attorney—at all times. impugns you. If you become huffy or outright mad. Even when an attorney attacks you. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. Doctor. flip. not credible. attorney moves on to another subject]. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom.78 THE PSYCHIATRIST AS EXPERT WITNESS. Your identity on the stand is that of teacher.
jargon laden. Finally.” but only a few things reach reasonable medical certainty). to concede a point that really doesn’t mean much. ask if you can be heard by the farthest ranks of jurors. to agree that some things happen sometimes. Testimony Direct testimony should unfold in an organized manner. not stuffy. good teachers are lively and interesting. . adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. They are not excessively academic. If you must use.e. or respond to jargon. understandable manner that brings the details together in a recognizable gestalt. pedantic. evasive.. or prone to nit-picking. Although you are a teacher. theoretical. the concept is sometimes rendered mathematically as a 51% certainty. concede a remote possibility and move on. to accept a possibility as such (almost anything is “possible. Haggling with the attorney over a tiny abstruse point. blunts your argument and weakens your credibility. and “waffley. In general. explain. as a result of your careful and thoughtful preparation with your attorney. but without intimidating staring. the trial is a human process. Because jurisdictions differ as to the precise definition. the most common beginner’s error in the courtroom is the inability to “throw it away. or waxing argumentative rather than instructive. and to admit that rules have exceptions. a juror who cannot hear may be hesitant about saying so in open court. If a microphone is available. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). project.” Make your point as concretely as necessary and back it up with hard data from the database. If no microphone is provided. If in any doubt about your speech volume. what fools these jargonists be). making roving eye contact with various jurors whenever possible. avoid discussing unconscious dynamics unless absolutely needed for your point. they are usually poorly received by juries. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p.The Expert in Trial 79 Being fluffy means being too abstract. yet may ultimately give up on your testimony after straining to hear for too long. It is not the same as “certainty” (100% sure). As occurs during the depositions noted in the previous chapter. not just a classroom exercise. even inhibited souls will nod if they can hear.” that is. Direct your extended remarks to the jury. Speak to the most distant juror to be sure your voice is audible. Keep in mind the expert’s role in telling the story in a coherent. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Unlike formal, even pedantic deposition language, which is directed to the court reporter and aims at clarity above all to develop a valid transcript, trial language is juror-friendly, basic, and may be more extensive than the austere, brief answers from deposition. Asked an open-ended question (“Can you describe that process?”), answer until the matter is complete; if the jury appears to be losing focus, or if you see the dreaded “eye glaze” sign, wrap up your answer and wait for the next question. Remember that no matter how intensely you may feel about anything, you must scrupulously avoid any of the mildest forms of profanity or blasphemy, even as rhetorical devices. Recall that, in some parts of the country, and for some jurors, saying “Lord, no!” for emphasis in answer to a question involves breaking one of the Ten Commandments. There are various reasons for the expert to use a blackboard, marker board, or flip chart (for further discussion, see Chapter 6 in The Psychiatrist in Court: A Survival Guide). The expert should prepare some information that can be presented effectively by using one of these aids, if only to break the talking-heads monotony of witness after witness. Make sure you can be heard when using the blackboard, marker board, or flip chart because, if there is a microphone, you will now be away from it. Do not be ashamed to boom it out. Similarly, be sure to write large enough to be read by the farthest juror; ask the far ranks if they can see the first letter or picture you write or draw. If not, increase the scale. Novice experts may not be aware that the witness who faces the blackboard and mumbles the sound-track accompaniment to his micrographia is not only ineffective but also actively alienating, possibly even insulting, the jury. The companion volume makes the following point:
In addition, when you pick up a piece of chalk in your hand and you stand in front of the blackboard, you become, as a transference object, the most trusted figure in common human experience: the teacher. The teacher knows. The juror may not know what the capital of Virginia is—or what chlorpromazine is used for—but knows the teacher knows. The power of the image transcends what you actually draw; what counts is the apparent effort to get your point across, because juries respond to the idea that you are trying to help them understand. (3, p. 62)
When responding to cross-examination, maintain the identical level of interest, animation, politeness, and responsiveness as you demonstrated on direct examination (although you are allowed to become more alert). The expert who is warm, winning, and discursive on direct examination only to turn crabbed, argumentative, defensive, and guarded on cross-examination is communicating only bias. You are telling the truth; what difference does it make which side is asking the questions? The hostile, attacking attorney who
The Expert in Trial
meets with your unfailing politeness and persistent civility is perpetrating suicide, not homicide. If either side asks a genuinely excellent question, say so but only if you mean it. Answering cross-examination questions does not require that you help out the attorney with various possible misunderstandings he or she may have about psychiatry; just answer the question. The only exception to this rule is when so profound a misunderstanding of some fact is taking place that for you to answer the question would merely precipitate and perpetuate a French farce situation of two parties on totally different wavelengths; this situation is not funny in court. Clarify the point, then wait for the next question.
Some experts develop a code with their attorney to aid covering certain points brought out on cross-examination. For example, expert and attorney may agree that if the expert prefaces an answer on cross-examination with, “Well, that’s an interesting point...,” it means that the expert wishes to be asked about the issue on redirect. Such an arrangement may be considered, but in practice it may be more cumbersome and distracting than it is worth. In a personal communication (K. Lipez, November 1996), an experienced judge noted that his opinion of an expert falls if the expert has failed to anticipate, and seems unprepared for, an obvious line of questioning. For example, in a criminal trial with a proposed insanity defense, the question of malingering is highly relevant. An expert who seems surprised at this issue being brought out on cross-examination reveals serious lacunae in understanding the forensic issues involved. The same judge cautioned against too facile a psychiatric or psychological explanation of human behavior. The posture that everything can be explained (or even worse, “I can explain everything”) is unconvincing to juries and may even imply that the examinee has succeeded in manipulating the psychiatrist. Finally, I suggest giving up the fantasy of being able to predict entirely the effect of what you say on the jury: the jury will decide how the jury will decide. In a case in which a psychiatrist was being sued for malpractice in a patient’s suicide, I gave extensive defense testimony and remarked, strictly in passing, that, although it would not be ethical to give my own independent diagnosis—because I had not seen the patient—the diagnosis given by those who had seen the patient was fully consistent with the recorded symptoms. A poll of the jury after the defense verdict revealed that the jury had been impressed and perhaps even swayed by the fact that the only witnesses who used the word ethical were I and the physician-defendant.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine . In fact, given the actual frequency of sexual misconduct complaints by BPD patients against their therapists, patients with BPD are statistically more likely to be initiators of true claims than false ones.) Horrified at this evolving debacle and unable to stop it or even comment on it until the next break, I took refuge where all witnesses in such a spot should take it: the absolute narrow truth. The attorney might catch on or might not, might be baffled or might not, might be annoyed with you afterward or might not, but those are not your problems. The oath always provides sanctuary in a storm. A similar dilemma faces the testifying expert when some significant fact is revealed for the first time during trial testimony—a fact that changes your opinion. Do not panic and feel guilty, abashed, or inadequate. This revelation may be the lawyer’s lapse, but it is not your problem. Your job is to tell the truth; if the facts substantively change, an ethical expert’s opinion would be expected to change.
Remember to keep your testimony basic and jargon free. Illustrate your points with analogies and metaphors that you believe the average jury will follow. The following is an example of how you might discuss in court the mechanism of action of a selective serotonin reuptake inhibitor:
You know that the spark plugs on your car work by sending a spark across a narrow gap (show by using your fingers). Well, the nerves in your nervous system, including the nerves that control your mood, communicate in the same way (sketch a synapse). The upstream nerve sends an electrical current (draw a lightning bolt) down to this spark gap called a synapse (write word on board), and when it gets there, the current releases little blobs of chemicals like tiny water balloons. These float across the spark gap and hit certain “hot buttons” on the end of the downstream nerve and set off the next electrical current (draw another lightning bolt in the downstream nerve). Now that these chemicals are out there, how do you turn them off for the next bolt? The upstream nerve sucks them back up like a vacuum cleaner, and the system is ready for the next nerve impulse. Now this medication blocks
Over the years.” Realistically. “I don’t care to waste my time on this whore. What will cross-examination be like? What is the jury to make of this apparent hesitancy and doubt? Remember also that—as is clearly seen in that excerpt—the court reporter is entitled to. 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. as if to convey. the chemicals stay in the spark gap and keep working so that your mood is lifted. do not underestimate juries. such an avoidance of cross-examination is sound trial strategy. stutter. . The hazards of lack of practice are revealed by this following segment from an actual murder trial. Adventures in Cross-Examination For experienced experts. some scholars assert. the best cross-examination is. 83 Although this mode of explanation may seem cumbersome. Consider practicing such a description with your attorney or colleagues or friends. The jury hears the testimony twice—an aid to both memory and persuasion. The expert is on direct examination by his own retaining attorney. it is numbing to a jury. Respect the juror. any testimony from this witness would be bought and meaningless. That is how this kind of antidepressant or mood elevator works. and slavishly but perfectly appropriately. just like putting your hand over the vacuum nozzle. I have been impressed by their ability to grasp what is at issue. the jury usually appreciates being given the “inside story.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife.” preferably said in a mildly contemptuous tone. In the same way. if you do that.” but this appreciation is lost if the jury cannot understand or follow your description. As you can grasp by merely reading this response aloud. Recall that this is direct examination by his own retaining attorney. and the expert has theoretically prepared to tell the story in a coherent manner. grunt. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. “I have no questions for this witness. may record every pause. Um—as the events became closer to the—um—incident itself [the murder]. depressed— um—and seeking help. even if the technical details are lost in the shuffle. and throat clear that you emit on the stand. the dirt stays on the floor. 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. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed.
”) or exhibitionism (“Watch me shine!”). or the answer may be obvious from the question (i. or publications. the question answers itself ). The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony.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. but in this instance it is not. Throw it away. First. or alternatively.. “That’s generally true.. The tight rein on which you are held may make it difficult to get your opinion out there. isn’t that right. surprisingly. can they not?” • “Another expert might come to a different conclusion. Instead. no problem. and even the attorney’s competitive feelings directed toward the expert. which may be asked on cross. equivocating hurts you. the attorney’s competitive strivings with the opposing attorney or firm.e. not always) aware of two fundamental principles that should guide this activity. however.” . questions beginning “Is it possible. the attorney’s wish or need to have the client see the attorney doing something. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. “that’s generally true” and you may be too flustered to challenge the action. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. If you want to say. the attorney asks closed questions. such as the previously listed leading questions. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one.. The attorney may know the answer to a particular question from the expert’s report. SECOND EDITION Most often. ask only questions to which only one answer is possible (fittingly.” the attorney may move on to the next question after you have said. Even those attorneys who opt to engage in cross-examination are usually (but. what you say is often true in other cases. It is better to say. “Although the present case is a clear exception to that rule. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). interrogatory. The following are some examples of the last (all are leading questions. attorneys do not perform this simple but effective maneuver. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. never ask a question to which you do not already know the answer.84 THE PSYCHIATRIST AS EXPERT WITNESS. deposition.” are almost always answered yes on the theory that almost anything is possible).
Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. If either will do so. state that you cannot answer yes or no. The key word is truthfully.” Listen with intense attention to the question. say it. “I’m going to take a moment to think about that. and to allow your attorney to object. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . You took an oath to tell the whole truth. to consider your answer carefully. Always ask to see the context if you do not immediately and completely recall it. if not.” The break gives you ample time to think. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. or have you dozed off? It is best to state. At times. if needed. At such moments. Practically. a question will require more time for prolonged thought or searching of your memory. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. some attorneys advise not discussing your testimony. to be sure you are clear about the question.” “no. Quotes On cross-examination. some sources suggest answering at the outset. a judge may even decide to declare a recess: “While you are thinking.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. consequently. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. and think seriously about whether yes or no will represent the whole truth. and a mere yes or no may fail to convey the “whole truth.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). I seriously recommend that you try to look as if you are thinking to clarify for the jury what this pause in the proceedings is all about and to allow those jurors who have dozed off to be awakened by the sudden silence. We’ll reconvene in 15 minutes. we are going to take our midmorning break right now. this type of questioning means that you have only three answers available: “yes. the attorney may quote something that you wrote or lectured on.” This response may be foreclosed by the judge directing you to answer anyway.” and do so. Breaks During breaks that occur in the middle of cross-examination. Scholars liken agreeing to this either-or approach to signing a blank check. Doctor.
in the trunk of your car. such as the discovery that you have left a key document in your suitcase across the courtroom or. is your actual trial testimony. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. others find telephone calls distracting and let whoever is covering for them handle things. but let’s assume it did not). your opinion. incomplete. SECOND EDITION sions with your own personal lawyer are protected). These include biological and physiological crises or circumstantial ones. . or inadequately grounded in data. if requested. Crises Various crises may strike while you are on the stand. The Final Opinion During the course of expert consultation. the one that counts. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. Use your own judgment and knowledge of your biorhythms. Later. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. The cross-examining attorney may make an issue of the fact that you had not seen a particular document or known a particular fact before you gave your opinions in your report or deposition. you may have written a report after reviewing some quantity of material.86 THE PSYCHIATRIST AS EXPERT WITNESS. you would have been obligated to so inform your attorney. Your final opinion. you have confused loyalty to your attorney with the oath to tell the truth. and some additional material may have come your way just before the trial (which. I recommend avoiding eating heavily. This change is as it should be. even worse. The thrust of this line of questioning is to convey that your opinion is premature. had it changed your opinion. Some experts want to call their offices during breaks. as a “preliminary” report. could change with complete validity based on some new fact that you hear for the first time during the trial. 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. Subsequent communications may be labeled supplementary reports to keep the sequence clear. In theory. For the lunch break. you may have been deposed. Now you must testify on the witness stand. because it is based on data. An aid to this conceptualization is to label your first report.
for example. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. The judge dismisses you by saying. and both grudgingly acknowledge that neither has any more questions for you. Forensic etiquette requires that you just leave. The judge will almost always grant this. If a delaying tactic is not used. Do not be inhibited by fears that. or emit other social behaviors. that’s all. and serious distractions impair your work. This behavior conveys too much interest in the outcome for someone who is not a party to the case. entitled. More troublingly. or weak. While this is a common and respectful courtesy. you will appear inept. Doctor. one of the parties or even one of the attorneys reaches out to shake my hand. it is preferable just to hang in there. or to learn of other subsequent activity. Do not hang around to hear what other witnesses say. conservativeness is probably better (the discreet nod rather than the glad-hand wave). when you are through. as always. wave at the jury box (“So long. measured breathing. and go. and sit more upright to relieve tension. “You (or the witness) may step down” or “Thank you. by needing to go to the bathroom. Your job as expert is important to the case. If you do shake hands. Your Honor. you exit.” At this point you say. it poses a dilemma of a no-win situation. fans!”). sickly. you seem to be acknowledged . The End of the Affair Finally. childish. Do not stop to chat or debrief with the attorney. it invariably conveys the strong suggestion of partisanship. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. Deal with the problem and then continue with your task with restored focus.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. stretch your limbs behind the screen of the stand. get down from the stand. “Thank you. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. On occasion as I have left the courtroom. Some more extroverted experts thank the jury out loud. Ask the judge if you may take a brief break for personal reasons. to see the outcome. No one knows the effect of these gestures.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). at odds with your objectivity. Focus on slow. What do you care what happens? You only testify under oath. nod politely to the jury.
I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. some forget. For your personal development as an expert. SECOND EDITION for good (but partisan) work. J Psychiatry Law 28:235–251. as much as possible about what happened and why it happened. Gutheil TG. 2000 . Most courteous attorneys will inform you later. Surprisingly. however. Because this brief volume can serve only as an introduction. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. A far more detailed analysis of testimony can be found elsewhere (5). Reaching out your hand to the other side’s party or attorneys in some desperate dramatization of neutrality or even-handedness is likely to confuse everyone. “juror countertransference” toward the attorneys. always seek feedback and reactions to your participation. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. by letter or telephone.88 THE PSYCHIATRIST AS EXPERT WITNESS. if you do not or you ignore the outstretched hand. Forces beyond your control and outside your testimony—such as the demographics of juror selection. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. Finally. this task is for the lawyers. It is perfectly appropriate after some time has passed to call and ask the outcome. while acknowledging that experience is still. References 1. 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. 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. If you have traveled far with a heavy load of database materials. the best teacher. Take only your report. as always. you seem rude. and the like—impinge on trial outcome.
The Expert in Trial 2.
Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993
Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.
It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91
You can count on your eyeballs the number of times this clockwork model actu- .92 THE PSYCHIATRIST AS EXPERT WITNESS. You’ll be out of there by lunchtime. If a trial and a deposition are scheduled for the same time. and telephone calls to resolve them. requiring two parties to match schedules. but during the very week that you have scheduled four weddings and a funeral. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. You may have a little room to maneuver in terms of the order in which you testify. with a deposition for a third case.M. he or she will be exerting the greatest efforts to make it all work out. although obviously fewer persons and a shorter time frame are involved than are for trial. tops. attorneys. theoretically.. I can’t imagine my direct examination taking more than an hour. with suitable preparation of the jury. The second priority is depositions. and other-side attorneys are reasonable. I know you have a busy schedule. two trials in different states will be called simultaneously. Because your attorney has the most interest in your presence. This type of schedule is close to reality. 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. of course. An attorney who planned to have you “bat cleanup” (i. the hierarchy of urgency and therefore attempted postponement (or at worst. the trial should take precedence. “The Expert on the Road. SECOND EDITION for months without any forensic activity whatsoever. The last two priorities are interview and report.e. You must do the best you can with what you’ve got. court dockets are crowded and leave little flexibility. cancellation) is as follows. hours. Large numbers of people are involved.” Smile politely when you hear these words but make expansive plans. Because your reports can be done at any time of the day or night. and serious matters hang in the balance. Travel glitches (discussed in Chapter 10. sharp.” in this volume). As a rule of thumb.. others are not. add another layer of challenge. You’ll probably be cross-examined for 1. which also require several people to synchronize their schedules. In extreme circumstances. Trials take first priority. so let’s put you on first at 9:00 A . for example: “Doctor. flexible. negotiation. a forensic interview. but things happen. and accommodating. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. the other side may be willing to have your testimony inserted into their side of the case. The tension here is that some courts. maybe 2. comes before a report.
as a kind of swing time in which he or she can hear a half dozen motions in this and other cases and “dispose of them. The judge assigns a long lunch and hears another few motions just afterward. Commons ML: Trading forensic and family commitments. no clear conclusions can be drawn. The subject may represent some kind of taboo because it is rarely discussed. some are not. 1996 Suggested Readings Gutheil TG. a judge will treat the time between 9:00 and 9:30 A . partner. negotiation may be possible for some scheduling conflicts but not always. it is not uncommon for an out-by-noon case to extend into the next day.” In addition. Gutheil TG.) Your So-Called Life Another scheduling issue almost entirely ignored in the forensic professional literature is the question of events in your personal life that may conflict with forensic commitments. (More suggestions on scheduling are included in Chapter 10 in this volume. Why? Although some judges are scrupulously punctual. American Psychiatric Publishing. References 1. J Psychiatr Pract 12:50–54. Occasionally. 2004 Kearney AJ. Gutheil TG: “Paraforensic” aspects of expert witness practice. The jury takes a long midmorning break. 2006 . The best aid for peace of mind for the would-be forensic expert is an understanding spouse. However. 2002 Reid WH: Forensic practice: a day in the life. DC. 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. In the end. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2. and family. J Am Acad Psychiatry Law 32:356–358. Bull Am Acad Psychiatry Law 24:533–546.Some Pointers on Expert Witness Practice 93 ally occurs. Washington.M. Thus. Although my colleagues and I tried to study this issue formally (2). The attorneys wrangle over whether some document relevant to the next witness is admissible. the odd juror gets stuck in traffic. difficult choices may have to be made.
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or to serve on a jury. a court. a defendant’s criminal responsibility. or a full evaluation of a person’s competence to stand trial. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. an attorney. or for a disability determination. to serve as a witness. some basic principles on letter writing to the court are described and are not repeated in this chapter. In all such cases. or a physician’s deviation from the standard of care. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. a description of an independent medical examination for a personal injury suit. allowing careful legal analysis and reflection on whether you will be helpful on the case. 95 . for a worker’s compensation claim. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. In this chapter. In The Psychiatrist in Court: A Survival Guide. 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. I focus on writing the full-fledged forensic report.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form.
brevity. the report may present materials or approaches that the attorney does not wish to share with the other side. According to Dr. then. It should be just long enough to cover the essential information but not so long as to exhaust the reader. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. “Reports should be self-sufficient. which states all of your conclusions and the analysis of all the relevant substantiating data. Critical documents should be briefly summarized within the report. the reader should be able to understand how the opinion was reached from the data in the report. the attorney may ask that you not furnish a report. Resnick also identifies the “four principles of good writing”: clarity. It should contain everything that you need to support your opinion and no irrelevant material. all should govern the form of the report. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. which presents your database and conclusions only. I refer to him explicitly in the text). and meticulous proofing and review of any report you produce. Resnick. 2) a summary report. M. which in that jurisdiction is discoverable by the other side. Without referring to other documents. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. Consequently. detailed report. 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. Forensic report writing. These are all powerful arguments for careful thought. for which I am most grateful (where I cite his material. It should stand alone.D. simplicity. Obviously. of course): 1) no report. In other situations. .. Resnick.96 THE PSYCHIATRIST AS EXPERT WITNESS. For similar reasons. Despite these useful functions. may take three major forms (with variations possible.” Dr. Phillip J. I emphasize the third form. and humanity. has generously and graciously granted me permission to cite some of his advice on report writing. SECOND EDITION Alternatively. and 3) the full. because the first is self-explanatory and the second is an extract of the third. In this chapter. without detailed discussion of the bases or reasoning behind those conclusions. painstaking preparation. General Remarks The report as a whole should meet certain criteria.
of the report should address the question of why you are writing this report. The heading should also include your letterhead and the date of the report.” Some attorneys.. reasoning that the occasion is obvious from context. or emendations should be titled “Supplementary Report. The Occasion The occasion. Smith v. additions. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses.g.” and subsequent contributions..” • “I examined Ms. and depositions. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. In that case.” The Database After identifying the occasion. or the type of case in a civil matter (e.. Resnick is included at the end of this chapter.. Jones et al. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents.. I examined (name of examinee) with regard to (forensic issue). One model by Dr. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest .. John Johnson). .. legal pleadings. police reports. emotional injury or psychiatric malpractice). Include any interviews per- . or State v. the charges in a criminal case. think of your report as a memorandum and use a standardized format. what is your standing in the case that justifies this missive? How and why did this examinee get to your doorstep? Examples might include the following: • “At the request of Attorney John Smith (or Judge Janet Jones). Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. otherwise. use a standard business letter format.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs).. One way is to provide the case citation or caption in whole or in brief (e. sometimes called the referral. that is. Identifying data can be presented in a number of ways.g. the case or docket number if known.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report.
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. or other) is free to stop there and make decisions about future directions in which the process should go. including interview data) and your total clinical background of training (what you were taught) and expe- . logical grouping (e. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. chronologically. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. the overall basis is described as both the database (all the material reviewed in the case. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. A typical conclusion in a malpractice case. that. you are free to choose your favorite. First. . the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). about the disposition. The documents may be listed alphabetically. no convincing case has been made for the inherent superiority of either approach. Note the wording. held to a reasonable degree of medical certainty. for example. or according to some natural. all medical reports. (or. attorney. and so on. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . 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.g. Although each group has a rationale. SECOND EDITION formed and their date and length.. in the treatment of (plaintiff ).. it is my professional opinion. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. all depositions). The remainder of the report is thus treated as optional reading.98 THE PSYCHIATRIST AS EXPERT WITNESS. 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. 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.
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. be it competence. As Dr. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. Second. your conclusions should be presented in . “If there are two versions of the facts. this section should contain extracts of previous material directly supporting the points you are making. “Reasons supporting opinions should be clearly and fully stated. 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). Remember that the conclusion. In these cases. you can present the supporting material in several ways.. the expert should scrupulously avoid assuming one side is correct. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue.. Supporting Data After 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). Resnick states. If your conclusion is stated at the outset. 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. sometimes different spins on the truth. offer alternative opinions. Third. the defendant usually has admitted the act for which he or she is charged. usually. Dr. Resnick explains. and credibility as an expert witness. or other. standardized legal language). Finally. 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 are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. malpractice. it is predictable that plaintiff and defendant tell different stories. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. although representing the core of your opinion. sometimes frankly contradictory. effectiveness. insanity. but occasionally.” Multiple Realities In civil cases. is essentially boilerplate (i. more likely than not). If your conclusion comes at the end of the report.e.” In every case.e. The reader should not have to use his/her own inferences to understand the point. Dr.
asking for the addition of new material not supplied to you earlier.. or agency for which it has been prepared.” This approach prevents your seeming to side with one party in the case. to alter or misrepresent facts in the database. these should be recorded. interview of plaintiff blocked by attorney. There is no absolute guideline for this procedure. some are not. and shortening the report by aggressive editing. Limits. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data.if defendant’s version is true. then . or to change the substance of your opinions. Postreport Negotiations After your report is finished and has been sent to the attorney. you may receive requests to alter the report in some ways. even if it has been removed from your report for brevity. on the contrary. 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.. money. then .) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. Some requested alterations are fully ethical.. A challenging gray zone is negotiating about wording.. it would be a weakness not to acknowledge these factors candidly. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. summarizing. which make for a stronger report. judge. SECOND EDITION the following form: “If the allegations are true. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording.. and deleting. A case example was discussed in Chapter 3 (“First Principles”) of this volume. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. (Remember you must be candid about everything you believe to be true.. or data (such as inadmissible material. then . attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case.100 THE PSYCHIATRIST AS EXPERT WITNESS.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. but generally there is no inherent problem . These are not weaknesses of the report. Constraints. and Rebuttals If there have been any constraints of time. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner.
intensity (likely. . 16. very likely. 4.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 10. Be careful about changing wording concerning issues of causation. 3. 17. 5. 9. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case.1 1. Identifying information: Source of referral: Referral issue: Sources of information: Qualifications of the examiner: Statement of nonconfidentiality: Past personal history: Family history: Sexual and marital history: Educational history: Employment history: Military history: Relevant medical history: Drug and alcohol history: Legal history: Psychiatric history: Prior relationship of the defendant to the victim: 1Used with permission. 7. 6. but it may get you started. 8. 14. 12. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 2. 15. Resnick’s outline for a typical criminal report. The Criminal Report: An Example The following is Dr. extremely likely). 13. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 11. and effect of emotional injuries—three common problem areas.
Hess AK. pp 577–605 Weiner IB: Writing forensic reports. report writing and expert testimony. New York. in Handbook of Forensic Psychology. 2007. New York. 1986 Melton GB. pp 511–528 . THE PSYCHIATRIST AS EXPERT WITNESS. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. Petrilla J. Am J Psychiatry 143:164–169. 19. 3rd Edition. MA. Edited by Weiner IB. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. 21. Poythress NG. 25. Guilford Press. 24. 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. Wiley. 23.102 18. Falmouth. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. SEAK. 22. 1987. 20. et al (eds): Consultation.
We sent this announcement to every attorney we had ever worked with. and a typeface for our official stationery. “Yes! We (or the corporation) will take your case. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. Unfortunately.” The ability to say yes to all comers seemed like a good idea at the time. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. In the late 1970s. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. We retained an industrial designer to help create a logo (highlighting crimson.) 103 . to connote the Harvard connection). embarrassments. such an affiliation would mean that we would be able to say to any attorney who called us. and inefficacies. In this chapter. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. and we drafted an announcement. We will let you know shortly which of our directors will be working with you. heard of. a letterhead. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. (I believe this excluded only admiralty practice and the law of the sea.
inform. Support for this theory came from Harvey Research in 1994. The balance must be struck between dualities such as generating word of mouth versus hucksterism. 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. Based on this reasoning. write. SECOND EDITION All this effort did nothing. and expense resembled our own responses to offers that come in the mail to sell us insurance. The Delicate Balance In all approaches to marketing. but the net effect for all this time. opportunistic. thought. speak. We received a few form announcements from two or three firms about their offerings. and unspecialize. word of mouth). Most recipients almost certainly awarded our announcement the coveted circular file disposition. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. 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. sharing useful information versus being pushy.104 THE PSYCHIATRIST AS EXPERT WITNESS. an expert’s marketing strategy shifts to generating favorable word of mouth. . and pride and confidence in your work versus hired gun certainty or grandiosity.. commercialized hustling for business—or the appearance thereof. for example. “Types of Typical Cases. is suspect and not reliable as an approach (see also Chapter 4. The result was tantamount to letting a drop of water fall into a large lake. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy.e. that is. Ordinary advertising in Lawyers’ Weekly. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly.” in this volume). The Key Approach As time went on. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. clinicians) led to forensic referrals: word of mouth. list.
.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). 3) attorneys. including listing services you are not truly expert in. Finally. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. and 4) judges. Describe those services you can authentically offer. the GAL may do a preliminary survey of the psychiatric aspects of a case. and factual. will see you in action in deposition or trial. then reporting to the court. or use it in some other appropriate way. 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. If you are moving into a new town. Serving as a guardian ad litem (GAL. Avoid any hype. previous associations with the attorneys on the other side. in effect. hand it out at a lecture. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. they will be useful to you in several ways. Alumni bulletins and class reunions are also opportunities to get the word out. Thus. Attorneys whom you can inform include your own attorney. polite letter informing local judges of your availability for forensic services. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. 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. the announcement should display the professionalism that you plan to bring to the work. judges may need your services. Although your forensic peers may seem to be your competition. informative. too little time. trifold sheet of fine paper with a brief description of the expert and the services. If you inform your peer groups about your availability. they may think of you at that point. Among other roles. Opposing attorneys. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. Some experts replace the announcement with a minibrochure: a single. and lawyer neighbors and friends who might pass your name along. and send it to attorneys and clinicians. First. or other reasons. if you have one. they may turn away a case because of a conflict of interest. you may wish to send a short. it should be tasteful. of course. 2) your forensic peer group. For your clinical peers.
both of whom may be potential referral sources. such as hospital grand rounds. however. try to become involved in local media such as call-in shows. and similar humiliations. Admittedly. In my opinion. One reference. this skill is acquired. such as clinicians and lawyers. 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. review. ambush journalism. . Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. The APA Public Affairs Office provides some guidance in dealing with the media. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. Write In our computerized modern age. which are often seeking a stable of experts to comment on medicolegal stories of the moment. but the wounds of experience are probably and ultimately the best teacher. Become active in your district branch legislative committees and processes. no one will show.106 THE PSYCHIATRIST AS EXPERT WITNESS. Your podium demeanor may convey at least a little about your expected performance on the witness stand. Although it is useful exposure and a valuable resource to write an analysis. the topics of which appear on the screens of attorneys’ computer searches. or commentary and have it published. Finally. or established continuing medical education programs. many referrals to psychiatrists come from publications. Instead. 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. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). these publications may be explored. departmental conferences. and media exposure may open you to crank calls. SECOND EDITION List Listings can be effective as well. sign up as an entry in an existing lecture series. Beat the Press (2). You will be exposed to attorneys and legislators. may be helpful in dealing with the media.
and other aggrandizing statements that are. Have the site professionally designed with attention to taste. and your course as hired gun may be marked. It does not matter if the case is trivial or small potatoes.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. by definition. some broker organizations guarantee your opinion. even at the outset. No case too small. I will work only on high-profile. Consider taking on some pro bono work as well. In the same vein. some critical considerations are the following: 1. as it were—but the Web site is perhaps the most explicit.” This is a losing strategy. Even minor. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. 2. From the absolute onset of your career. Begin your career by unspecializing. What About Web Sites? In the modern era the use of Web sites has increased for all professions. but you will obtain valuable exposure. Conservatively stating your incontrovertible credentials (actual appointments. In fact. certifica- . place in the profession. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. no matter how slight the issue. wherein you follow the ancient maxim. 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. including this one. extremely public. Be extremely careful about posting your qualifications. training. based on your fine performance at the deposition. Beware of making or seeming to make extravagant claims for your knowledge. widely publicized mass murders. modesty. You will derive no income. 3. integrity must be your watchword. If you decide to use a Web site. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. Do not bend the truth to satisfy the attorney. one turn to the Dark Side of the Force. a point that cannot be overemphasized. It may then take you years of work to unblemish your reputation. and interest. skills. trivial cases allow you to be observed in action by potential employers.
In analogy with clinical referrals. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. recall the value of brokering. Salt Lake City. I reemphasize the point made in Chapter 1 (“Introduction: What Makes an Expert?”) in this book: it is important to have a salaried job and/or a private practice to insulate you from slavery to the fiscal pressures of forensic work. J Psychiatry Law 31:5–19.108 THE PSYCHIATRIST AS EXPERT WITNESS. choose only those experts whom you would be confident to have on your side if you were being sued for something. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. SECOND EDITION tions. References 1. Finally. Remember to thank your referral sources. Additional Pointers The issue may seem trivial. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. Sadoff RL.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). etc. for referrals. conflict. .” Although you are feeding the competition. Return telephone calls are the easiest marketing device and one of the most effective. and effective. American Book Business Press. Dattilio FM. but no other method is as reliable. and demanding of patience. You are saying to the calling attorney. Building a practice on word of mouth is slow. but its importance cannot be overstated: return telephone calls promptly. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. but I will take it upon myself to find somebody good who can. “I can’t take this case (because of time. including attorneys and fellow clinicians. UT. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. Guyant A: Beat the Press. you are also revealing yourself as a good first stop on the search for a good expert. 2003 Fulton S. publications. at times trying. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. sound. specific required expertise). 2002 2.
these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. I disclose that I have lectured for SEAK numerous times over the years. Tageh Press. Glenwood Springs. 1997 Feder HA: Succeeding as an Expert Witness.. New York. out of Falmouth. . WW Norton. CO. Inc. Massachusetts. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide.
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Simon. or interviews.D. In this chapter.C H A P T E R 10 The Expert on the Road: Some Travel Tips for Testifying Away Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy. examinations. M. M. this chapter will be too obvious and not relevant to your needs. 111 . The author is indebted to Robert I. and opprobrium. mockery. As always...D. William Reid. and his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter. 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. seasoned travelers may skip the chapter entirely. 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. I address some tips and strategies for the expert who is inexperienced in traveling to cases.
Another useful reference is Jet Smart (2). looks professional. and return that day or the following one. and one pair of shoes. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. These services can book flights. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. matches. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. stay overnight in a hotel or similar setting. SECOND EDITION The basic situation I describe is one in which you travel by airplane to the city where the trial (or deposition or interview) is being held. especially if you have not worn it for a while. cars. Some General Recommendations Travel Information Travel guides are available everywhere. 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. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. and is in good repair. the emerging online travel services (Expedia and the like) may prove useful. on rare occasion. you may make the appropriate adjustments.112 THE PSYCHIATRIST AS EXPERT WITNESS. 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 must assume significant time delays and be prepared for your time commitment for court appearances to go into a second or even third day. and general information can be obtained from books. testify or interview the next day. to ensure that it still fits. and hotels directly and save you much time and stress on the telephone or online. Try on everything before you pack it. the process takes even longer. Opt for crushproof fabrics and materials whenever possible. Alternatively. especially in flight. 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. Running shoes also allow you to sprint through airports to . travel agents. and your colleagues. For cases that involve land travel. Consult with significant others for their opinions if needed. polished shoes for men and women). the Internet. Still other guides are provided in the suggested readings at the end of this chapter.
The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. if you are flying to a case and use air travel time to review the case. rare but extremely stressful when they do occur. then. and for the regular three meals. Seek equitable division of costs for multiple-case trips. for one or two telephone calls per day to the office to check on things. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. Separate business from personal comfort. If you review a different case on the way back. You have enough to worry about . for example. the literature is relatively unhelpful (the issue of double billing. The Ethics of Billing Bill strictly according to your fee agreement. because some law firms are slow to reimburse hotel and plane expenses). If the trial runs longer than a day or so. 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. It is possible. for one telephone call to the family. you may bill for that time but not for the ticket because the first case paid the whole trip already. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. Avoid checking baggage if you can. which are. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend.g. fortunately. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases.. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. is addressed nowhere in the forensic literature). Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. but not alcoholic beverages. do not bill separately for that work because you are already being paid a day rate. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. 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. 1 day at your day rate. in-room movies. Until data emerge. a useful principle is to avoid double billing in any form. massages. or 2-hour long-distance calls to your paramour. do not bill for sleep (you do it anyway).
These should include sewing items. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. these roll-alongs often fit either in the overhead compartment or. In psychoanalytic theory. It is definitely a basic principle for assembling your kit. such as a variety of buttons and threads to match your clothes. the principle of multiple function is one of the basics of a dynamic understanding of mental life.114 THE PSYCHIATRIST AS EXPERT WITNESS. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. you may opt to wear the suit or outfit on the plane and guard it in transit. lotions. even under the seat in some cases. and pack the rest of the gear. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. Remember also that your kit should contain items that permit repair. The Kit Whether you call it a travel kit. a small. and string. What you take should have similar versatility. eyeglass screwdrivers and replacement screws. remedy. Wear your workout or running shoes on the plane. A small. and similar medications. extra eyeglasses or contacts if you wear them. do not skimp or economize on the roll-along suitcase. but you may wish to experiment with a friend’s suitcase. multifunction “pharmacy” also should be included. extra shoelaces. and extra combs. 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. Alternatively. decongestants. it is indispensable to your successful travel ventures. with a little applied topology. Dopp kit. Current travel restrictions have shifted the allocation of liquids. and cleaning. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. not to mention the current airline custom of charging extra. a small roll of duct tape. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. safety pins in various sizes. . which may also be prepacked. and creams to quart-size plastic bags. In general. light flashlight for power outages and searching under beds for lost items. Other useful miscellaneous items include adhesive bandages of various sizes and types. antacids. stain-remover sticks that do not contain toxic petrochemicals. makeup bag. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. and rubber bands. or toiletries case. In addition.
and special arrangements. Drink water steadily to avoid travel dehydration. fly out. Besides a small flashlight. procedures. The latter appears at first glance both socially desirable and economical. but some precautions seem sensible. I carry a compact “smoke hood. testify. You breathe through a filter that lasts long enough. try breathing through a moistened towel for short periods. First.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. for you to get out of the toxic smoke and gases to safety. often hooked to a travel alarm clock. Emergency Items Neurotic fears can certainly flower when you travel. call the airline early to check on facilities. fails). it is more professional to meet with your attorney the night before the . remember to carry light extension cords and voltage adapters. on very dry flights. you are undistracted by social obligations and family strife or background noise. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. Second. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. as well as extra disks and the instruction manual if not on the hard drive already. or order special low-fat meals. in theory. I recommend the hotel or motel for several reasons.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. If you have a disability. institutional hotel or motel and cadging free lodging with friends or relatives in the area. This item is available through a number of catalogs. Secrets of Staying If you are unfamiliar with the expert art of “fly in. although occasionally. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. but you can buy your own compact version. because someone else is paying your way to the location. Almost all modern hotels in the United States have smoke detectors. The traveling expert is sometimes torn between staying at a cold. experienced travelers can skip this discussion. Seriously consider avoiding airline food entirely. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review.” this discussion will be helpful.
Don’t forget to set the room thermostat to your accustomed household temperature. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . a business trip. SECOND EDITION trial in a hotel room or conference room.M. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. is to make a beeline to adjust the hotel’s alarm clock or clock radio. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. Experimenting with culinary exotica is asking for a case of turista at worst. wring it out thoroughly so that it doesn’t drip. 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. A simple but effective method is to soak a washcloth or hand towel in cold water. the air is invariably dry in most hotels. obviously you should eat lightly and stick to what is familiar to you. Remoisten it as needed. and headachy on the stand. an essential part of effective testimony. 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. hotels provide irons. Some. 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. . but not all. a situation that can leave you hoarse. It is probably safest to avoid all alcohol during the trip before testimony. back up the call with your travel alarm. nausea on the witness stand also may be misinterpreted. After the trial. congested. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. if desired. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review.116 THE PSYCHIATRIST AS EXPERT WITNESS. If a paper clip or safety pin does not suspend the cloth or towel well. of course. this is. after all. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. Secrets of Eating In traveling to court. have your martini on the airplane home after it is all over. My second move often is to arrange a do-it-yourself humidification of the room. My first move on entering a hotel room. after I put down my luggage. Whether the room’s air system is heating in winter or cooling in summer. you are free to visit friends and family at your own discretion.
The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. Far better results accrue from sleep hygiene maneuvers. Setting the radio to a “nonstation” to generate static and the television to a “nonchannel” to get the sound that usually accompanies snow on the television screen (modern digital televisions usually do not permit this) are both methods of achieving this end. This term refers to sounds containing all frequencies. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. you can have a serious meal without ill effect. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . also eat lightly. or others) at bedtime. either by closing them completely or fastening gaping fabrics with safety pins. plan your trip to allow time for recovery from jet lag. without aftereffects. benzodiazepines. hot baths. I recommend it. so you may have to carry some supplies in your pocket or purse. the chatter of housekeeping staff just outside your door) is white noise. What to Take to Court Courthouses are notably lacking in amenities. of course. Ordinary AM radio static and the sound of surf are two examples of white noise. When you are up and awake. actual memory loss can occur—the last thing you need. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. stain . After court.. by using either alcohol or sleeping pills (barbiturates. These have ill effects. Examples include prescription medications that you need during the course of a long day. including hangovers. just as white light contains all color wavelengths.” sleep sound machines. and similar relaxants. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. usually described in catalogs as “sound soothers. as noted. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. but all the data are not in. and with sleeping pills. spending some time in direct sunlight may be helpful in adjusting your biologic clock.M. When possible. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. Catalogs sell portable battery-operated white-noise generators. or even a different time zone. or similar terms. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. Many travelers find it helpful to block out morning sunlight with the drapes. breathing techniques.
J Am Acad Psychiatry Law 29:202– 206. San Francisco. CA.118 THE PSYCHIATRIST AS EXPERT WITNESS. Miller PM: Expert witness billing practices revisited: a pilot study of further data. J Am Acad Psychiatry Law 26:21–26. cough drops. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. 2001 Simon RI. New York. Villard. I hope that these tips make your travel easier and less surprising. Although some of the pointers in this chapter probably state the obvious. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. 1996 . 4. 5.) St. Ten Speed Press. I welcome your suggestions and favorite travel tips. SECOND EDITION removal. mints. and a headache remedy for the obvious problem. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Berkeley. Revised. 1994 (An excellent guide to what to take and how to pack it. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. CA. or refreshment. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. References 1. Berkeley. Slater FE. sample wardrobes and general travel pointers included as well. 2003 2. Santa Barbara. or throat lozenges. WA. with the emphasis on safety and security issues. 3. Seattle.: Expert witness travel dilemmas: a pilot study of billing practices.) Gutheil TG.) Savage P: The Safe Travel Book. Jossey-Bass. Celestial Arts Publishing. 1998 Gutheil TG. James E: The Secrets of Simple Packing (VHS videotape). Psychiatric Annals 33:302–306. Magellan’s International. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. et al. Commons ML. CA. 1988 (Incredibly detailed. Commons ML. Flying Cloud Publishing.
On the other hand. the courts will continue. the more we serve this valuable and necessary function. expand.D. if you wish to take your work to the next level. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. I welcome comments and suggestions from readers to correct. The better we are at meeting the courts’ needs with ethical. including our medical colleagues. M. If I have made too many assumptions about you. Although some forces in society. the reader. 119 . from all evidence. or have taken too much for granted about your background and experience in any portion of this text. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. Simon. consider reviewing the successor volume to this one. decry the expert witness function and voice arguments for its abolition. (American Psychiatric Publishing 2002). consider first reading the companion volume. That book may fill in some of the blanks. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). As always. or render this text more useful. The Psychiatrist in Court: A Survival Guide. effective. and helpful testimony.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. to require our services in increasing numbers. which I cowrote with Robert I.
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e. and the examinee’s attorney’s attestation that the examinee understands the form (i. supplied for consideration. 121 .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.. is likely to be competent to consent to the interview). 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.
most of which will be very personal. and I understand that no one can know which one it will be in advance. SECOND EDITION Consent for Forensic Examination by Thomas G. 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. nor will he suggest any treatments to me or for me. Gutheil keep secret what I tell him.D. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. and I understand they will be part of the same examination and will follow all the above rules. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. Gutheil. Gutheil’s questions. Dr. Gutheil will explain or has explained to me and I understand that Dr. or out loud in open court in a trial. I agree to give up my rights to have Dr. or have no effect on my case that I can see. I understand and agree to additional repeat. Gutheil will explain or has explained to me.” or “update” interviews of me by Dr. Gutheil is a physician and a psychiatrist. I understand and agree that Dr. Dr. and I understand.122 THE PSYCHIATRIST AS EXPERT WITNESS. 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. 2. (“Dr. M. . The examination will be one or more personal interviews. This means that Dr. I also understand that I am not his patient in connection with or because of this interview or interviews. Gutheil may write that down for the record. I understand and agree that Dr. Thomas Gutheil. I understand that Dr. Gutheil’s interview or interviews. if needed. . in spoken depositions (where lawyers ask him questions). that he is not acting as my physician or psychiatrist in doing this interview or interviews. agree to have an examination by Dr. I understand. Dr. Dr. 3. but if I refuse to give an answer or some answers. Because I am being interviewed in a legal matter. the person who has signed at the bottom of this letter. I agree to be interviewed. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. “follow-up. however. 4. the following: 1. 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. Gutheil will not give me any medical or psychiatric treatment. in connection with my legal case. Gutheil. Dr. hurt my case. I understand that I can take breaks if I want to at any time during Dr. Gutheil”) I.
that individual is. free to show it to me. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Any report in relation to my case will not go to me but will go directly to my attorney. I certify that I have answered any questions my client asked about the procedure. he/she appears competent to understand it.Appendix 1: Consent Form for Forensic Examination 123 5. Attorney for examinee Print name Date day of . Dr. Gutheil’s retaining attorney. Signed. or the court as provided by law. a court officer. 20 . to my assessment. of course.
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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). with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. the radical revision presented here has evolved from that in the first edition for the same reasons. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. and $ per hour for trial. Gutheil. in addition. Dr. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. and the same due for cancellations that occur less than 72 hours in advance. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. including portal-to-portal local travel (c). Gutheil shall be reimbursed for all time spent on the case. $ for depositions.D. (“Dr. rescheduling is at mutual convenience. at a rate of $ per hour plus expenses. (d) 125 . Standard Letter of Agreement by Thomas G. Gutheil”) 1. M.
A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. Signature below indicates agreement with all (r) these terms. 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. 4. (q) 6. Gutheil by name (h). 3. 5. Attorney or firm representative as individual and on behalf of firm (signatory shall have the power to bind the law firm with regard to his contract). Signed. any existing balance shall also have been paid 3 business days before departure (e). Failure to comply may void this agreement except for duties of confidentiality (l). Gutheil. a retainer of $ pected 3 business days in advance. 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). irrespective of case outcome (j) or defaulted appearances. including travel by first-class conveyance and appropriate lodging if needed. materials. Dr. made out to Dr. For out-of-state evaluations or testimony. The retaining attorney understands that my forensic work is not the practice of medicine. is the sole responsibility of the retaining attorney or insurer (i). and as a condition for its specific to this travel is exbeing undertaken.126 THE PSYCHIATRIST AS EXPERT WITNESS. Please note that because of vacation scheduling. (s) Note: Please send all case materials to (address) Date . SECOND EDITION per day 2. please return one copy to Dr. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. as an advance against which expenses are billed (p). Dr. Gutheil will be unavailable for testimony in person during the month of August (f ). Before such travel is undertaken. and examinations as discovery rules permit. prorated (k). For out-of-state travel. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). Gutheil’s FID# is . Overdue accounts may accrue interest at 6% per annum. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses.
” d. “Consideration” and “agreeing” are trigger words that signal to attorneys. i. b. If you are the sole proprietor. Doc. k. l. can constitute a bias. that does not mean you should not be paid for the work already done. attorneys are sometimes slow to reimburse travel expenses for interview.Appendix 2: Standard Fee Agreement 127 Annotations a. “portal-to-portal. dunned for appropriately earned fees. Some experts charge differing rates. will throw up their hands in mock exasperation and say. A case decision that goes against the side retaining you is not grounds for nonpayment. If you know when your vacation is. noncontingent. thus. or trial. whether you become an expert depends on your taking the case as meritorious and the attorney’s accepting you as an expert witness (for deposition and/or trial). but what can I do? That client just won’t honor his or her obligations. take a videotaped deposition. or even retain another expert. Every agreement must have an exit clause such as this one. I recommend asking for this secondary retainer before travel. If you do withdraw. You have the right to request timely payment to prevent excessive backbalance buildup. that this is a formal contract. this clause makes that explicit. or trial travel. This information frees up the attorney to ask for continuance or rescheduling. deposition. as it ethically should be. or a member of a corporation or group practice. f. moreover. “You’re right. make that clear so that you don’t waste a lot of time swapping checks between payees. If the retaining party is relentlessly slow. Because you will be investing a fair amount in the travel costs. you may decide to withdraw. m. n. Some attorneys. This is a standard rate of interest on overdue accounts and an incentive for timely payment. it saves everyone time and heartache if you spell it out. for review. based on their training.” 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. Working for the client. To cut through nit-picking. You are initially retained as a consultant. deposition. Your fee is. j. For unexplained reasons. e. others the same. . g. the “clock” starts when you leave your home or office for court and stops when you return to office or home. c. h. You must be free to withdraw from the case if the contract is breached. this statement makes the attorney agree to that possibility.
s. Such attorneys may pay the retainer. parallel with the forensic consent form in Appendix 1. Making the retainer nonrefundable tends to eliminate such shenanigans. because you did no work. others ask for a second retainer (see also Appendix 3 in this volume). and. alas. Moreover. for example. When this retainer is depleted. ask for their retainer back. SECOND EDITION o. The retainer is not only a means of establishing the contract but also an actual advance against expenses. making you ineligible for participation with the other side. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. The wording here. q. identifies the attorney’s understanding that this is not the case. if the attorney is out of the country. or has left the firm. You have been sandbagged. some experts simply submit additional invoices.128 THE PSYCHIATRIST AS EXPERT WITNESS. and ethical incompatibilities. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. On rare occasions. r. at no cost to the attorney but at lost time and possible income to you. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. legal. p. give you no work to do. these events do not weaken the contractual ties with the firm. has handed the case to another attorney. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. You are here agreeing to accept signature from a different attorney or a paralegal. 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. after settling the case. .
Any credit balance remaining will be refunded upon the termination of my services. This retainer will constitute a credit balance until exhausted. If travel from my office is necessary to perform any of these services. and report preparation. review of records. Psychiatric services may include an initial consultation. interviews with family members or other persons. if it appears that substantial services are yet to be rendered. LARRY H. Thereafter. the hourly 129 . I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. 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. M. I may require an additional retainer. psychiatric interview or evaluation.D.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. STRASBURGER. consultation with counsel. It is understood and agreed that timely payment for my service and expenses will be solely the responsibility of the attorney and is in no way contingent upon the outcome of any litigation or settlement.
Nor shall such failure relieve your obligation to have on deposit. postage. 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. along with a listing of out-of-pocket expenses. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. American Board of Psychiatry and Neurology Diplomate. setting forth the nature of the services rendered since the prior billing. Sincerely. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. expert or otherwise. prior to my testimony. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . as prescribed by statute. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. All travel shall be by first-class conveyance. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. Strasburger. etc. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. Please keep a copy of this letter for your records. the retainer discussed above. literature research. Larry H. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. messenger services. 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. court rule. please so indicate by signing this letter and returning it to me with your check for the retainer. If the foregoing fee basis meets with your approval. photocopying. no refund of the retainer deposit will be made. long-distance telephone calls. including secretarial service. Diplomate. M. SECOND EDITION rates will apply to portal-to-portal travel time. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. Any excess over the retainer balance is due upon receipt. and all travel expenses will be reimbursed. Time spent in preparing for testimony shall be billed at the hourly rate specified above. 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). court order.130 THE PSYCHIATRIST AS EXPERT WITNESS.D.
Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. SEAK. MA. 2002 Babitsky S. All. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. their quality is variable. as well as those found in the companion volume. 2003 Babitsky S. South Bend. MA. Falmouth. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. SEAK. 2007 Babitsky S. MA. however. MA. 1997 Babitsky S. SEAK. Babitsky S. Falmouth. Falmouth. Am J Psychiatry 159:1819–1825. National Institute for Trial Advocacy. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models.) Binder RL: Liability for the psychiatric expert witness. provide at least some information useful for the psychiatric expert. 2005 Babitsky S. The Psychiatrist in Court: A Survival Guide. 2002 131 . These sources are meant to supplement those provided at the ends of the chapters in this book. Falmouth. Inevitably. SEAK. Falmouth. 1997 (Though aimed at attorneys. MA. 2008 Ball D: Theater Tips and Strategies for Jury Trials. SEAK. this has many useful tips on trial demeanor and related issues. SEAK. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. MA. Falmouth. Mangraviti JJ: How to Become a Dangerous Expert Witness. IN. not just psychiatry.
2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. Diamond. in Learning Forensic Assessment. New York. 1908 (Purely for antiquarians and those interested in a classic from the last century. New York. Analytic Press. 2007 (Focuses specifically on the testimony phase of expert work.) Gutheil TG. Wiley Law. Horsham. useful for checking credentials. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. 2008 Rogers R. Adams KM. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. New York. CA. 3rd Edition. Edited by Jackson R. American Psychiatric Publishing.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. New York. 1993 Dattilio FM. Simon RI.) Dattilio FM. Lippincott.132 THE PSYCHIATRIST AS EXPERT WITNESS. James Publishing. et al: Expert Witnesses: Direct and Cross Examination. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 2007. 2002 (This is designed as the successor book to the present one. 2006 Feder HA: Succeeding as an Expert Witness. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Commons ML. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. CO. pp 565– 588 McHale MJ.) Gutheil TG. Santa Ana. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. 1993 Gutheil TG. LRP Publications. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. MA. Tageh Press. DC. LRP Publications. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. Hillsdale. at a more advanced level. PA. 2001 Isele WP: Under Oath: Tips for Testifying. McClure Company. Guilford Press. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. New York. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Covise LL. MD. 2003 . Springer. Mulligan WG. PA. Danvers. DC. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. Routledge/Taylor & Francis. Oxford University Press. J Am Acad Psychiatry Law 34:482–491. Washington. 1995 Kwartner PP. Glenwood Springs. 1994 Rabinoff MA. Williams & Wilkins. American Psychological Association. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. NJ. Pennsylvania Bar Institute. New York. 2nd Edition. Washington. Mechanicsburg. Baltimore. J Am Acad Psychiatry Law 29:313–318.
and links. DC. VA. 2001 .org: The main Web site for the American Academy of Psychiatry and the Law. 1993 Other Media http://www. http://tncrimlaw. Washington. http://forensic-psych. American Bar Association. DC. 2nd Edition. MA. American Psychiatric Press. Disclosure: This author is a founder. with multiple resources. New York. SEAK.com: A resource-rich site with articles.SEAK. Wiley. http://pipatl. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. 1997 Younger I: The Art of Cross Examination. MD. NJ. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. American Psychiatric Press. articles. and postings. http://www. http://www. Erlbaum. Lightfoot. the national forensic psychiatric organization. American Psychiatric Press.com/forensic/f_psych. Harvard Medical School. DC. Kochansky J: The Complete Psychiatric Examination (videotape). Section of Litigation. and links. DC. Beth Israel-Deaconess Medical Center.org: Web site of the Program in Psychiatry and the Law. Shuman D: Clinical Manual of Psychiatry and Law.com: A host of resources by two top attorneys. 2007 Tsushima WT. Gaynor Publishing. New York. Falmouth. J Am Acad Psychiatry Law 35:346–349.reidpsychiatry. 2003 Simon RI. Washington. Washington.com: Web site of author’s colleague HJ Bursztajn. WW Norton. Gutheil TG. All experts should join. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. Washington.html: Another multiple resource site. links. 2004 (Study guide available since 2006.aapl. discussions. A compendium of sources.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. Mahwah. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. Anderson RM: Mastering Expert Testimony.) Simon RI. 1976 Zobel HB. publishing a vast range of information and offering excellent training courses. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation.
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and so on. it has been accepted in actual cases that validate its use. the plaintiff is the (live) person bringing the suit. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. it may consist of records and documents. Competence The capacity or ability to deal with a certain task. that is simply plugged in to the appropriate place. case law. Thus in a suicide malpractice case. such as relatives or executors. Database This author’s term for the totality of material that the expert has reviewed to form the opinion.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. legal documents such as depositions and interrogatories. the criteria for competence to make a will and for competence to stand trial are quite different. in the context of discovery. for example. on mainframes) and may be used in attempts to impeach the expert at trial.” it is always “competence for what?” The criteria for the different competencies are often distinct.” that is.e. 135 . in which the witness. interview data. two or more lawyers.. Instead. lab results.” Deposition Usually believed to be the actual ceremony. It is not derived from the facts of the specific case at hand. Competence is decision-specific and usually based on criteria. usually derived from statutes. the person who committed suicide is the “plaintiff’s decedent. or tradition. which will live on in perpetuity (i. there is no generic “competence. it is usually “court-tested. Decedent The person related to the case who has died. In reality the actual deposition is the transcript of the deposition. the practical and relevant definitions are provided. In case of ambiguity. Boilerplate Standardized legal language. consult your retaining attorney.
.g. to visit a nursing home where resides a person whose competence is being challenged) and other duties. . “Hired gun” A term. the fetus in an abortion decision). in which information is gathered by the attorneys in order to prepare the case.g. the judge(s) and/or jury. The GAL may be thought of as a kind of utility infielder for the court. The role may include representing an unrepresented party (e. interrogatories. or an attorney-psychiatrist team. and the like.. less ordinary procedures might include covert surveillance of a suspected malingerer.e. and various motions accomplish some of this phase. thus decision maker rather than fact finder. may be used as well. but this is the established term. usually exchanged between opposing attorneys to alert them to your projected opinion. and other medical contexts not limited to psychiatry. The GAL is usually an attorney. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. Fact finder Practically speaking. IME (independent medical examination) An important part of the discovery process in malpractice. if so. Finding See “Opinion.. in “trial by ambush” jurisdictions this step is skipped. says what the attorney wants said rather than objective truth). since the goal of the process appears actually to be a decision. after the civil or criminal matter is set in motion. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. but a psychiatrist. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. The IME may be resisted by some attorneys. Depositions. See also “Trial by ambush.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. Novice experts see this as a misnomer. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. use of a private investigator to obtain information. challenging the party moving for a particular result.” Discovery That early phase of litigation. borrowed from western and noir fiction and film. investigating in the field for the court to determine the situation leading to the proceeding (e.136 THE PSYCHIATRIST AS EXPERT WITNESS. this limitation constrains the data gathering and the conclusions that may be drawn from the database. disability.
disliked by almost all parties in a case as well as the general public.” In practical terms. the whole truth is often supplanted by “the admissible truth. In addition. falling below the standard of care in the care rendered in the instant case. Of course. the insanity evaluation is retrospective. Opinion The final phase. The expert offers an opinion derived from the database and training and experience. its influence should be resisted by the expert. these are prepared jointly by attorney and expert. and widely misunderstood by many of those. Like other sources of bias. Interrogatories A set of formal. tell the narrow truth. the “bottom line. sometimes without even informing. the expert can retreat when in doubt about what is going on or where the inquiry is going. There are several . promises of much future work if the opinion in the present case is favorable. and let the chips fall where they may. retreat to the oath. when confusion sets in. and the like. experts should review these carefully for accuracy as to their opinions. The “seduction” may involve flattery. and nothing but the truth. Negligence In a medicolegal context. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. because variations from these answers at trial will be used actively in attempted impeachment. governed by legal criteria that vary by jurisdiction. the whole truth.” of the expert’s efforts. the court makes the finding that defines the outcome of the case. the oath is a place of safety to which. In a practical sense. elaborate dinners and entertainments. the witnesses are to testify in court only with testimony that they can swear to.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. the expert. but without actually retaining. “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.” 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. One of the most challenging assessments in all of forensic psychiatry. See also “Standard of care. 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.
on the theory that this might inappropriately influence or contaminate the witness’s future testimony. . by excluding them from the courtroom. The expert should be familiar with the relevant local standard and its definition.” “51% certainty. but they cannot by themselves reform the exploitative personality. administrative law procedures. to prevent the experts from hearing other testimony.” in suggested readings. this term usually refers to service without payment. and the like. hearings. particularly experts.138 THE PSYCHIATRIST AS EXPERT WITNESS. the standard is usually national but may be local—the “locality rule.” Though most attorneys are responsible. Unlike confidentiality. the origin of the frequently invoked mantra. “get the money up front.” “reasonable medical (or psychological) probability. which broadly applies to information that should not be shared with others in many contexts. 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.” “reasonable psychological certainty. SECOND EDITION variations on this ploy. Several jurisdictional variants include “more likely than not. privilege is narrowly construed as applying in legal or quasi-legal contexts only.” and so on. thus an attorney or an expert might perform a relevant duty for free. a few find ways not to pay you what they owe. See Gutheil et al. Privilege A legal concept that holds that the patient (or examinee) has certain rights to bar statements or testimony from appearing in legal or quasilegal proceedings such as courts. Sequester The separation of witnesses. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department.” An expert testifying about a case must be familiar with the relevant standard. Appendix 4. 2001: “The Phantom Expert. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given.” which the expert must also know. Pro bono Short for pro bono publico (for the public’s good).
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). depositions. The expert has control only over those accepted or rejected. not as a valid method of determining one’s standards of acceptance. etc. The expert proffers an opinion. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. usually based on criteria. insane. accepted as meritorious versus those rejected as invalid. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. these cases. (See also “Opinion.” Experts should refrain from stating the ultimate issue in their testimony. but the fact finder renders the finding that embodies the “ultimate issue. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. and expert disclosures (see “Disclosure”) inform the other side in advance. competent. Turndown rate The ratio of cases that are. Tarasoff v. “Trial by ambush” A description of the rule in some jurisdictions whereby the name and opinion of an expert are not disclosed before the actual trial. such as whether a witness should be accepted as an expert for the court.” or “duty to warn third-party cases. This rate should be seen as a rough guide. but the plaintiff has a thin or “eggshell” skull and is severely injured. In the majority of situations. which involve a victim in addition to the treater and patient. Ultimate issue The final outcome of the legal process: negligent. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them.”) . are sometimes referred to as “third-party cases. The image is that of a defendant giving a trivial blow to the head of the plaintiff.” Jurisdictions vary widely as to the applicability of this principle. after review. Among other goals such as saving time. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. a blow that would ordinarily not be expected to cause harm. not those that come in for review. guilty. Because the usual duty of clinicians is to the patient alone.Glossary 139 Stipulate To concede or agree to a challenged issue. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. discovery proceedings such as interrogatories.
“The Problem of Evasive Testimony” in Suggested Readings. 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. This may apply to certain communications between expert and retaining attorney. work product occupies a special category of privilege and is usually not discoverable. See Gutheil 2007. Waffling An expert’s rambling. to say” but more relevantly. Work product A designation of privacy for material that is part of the attorney’s trial strategy. Chapter 4 (reference 11). literally “to see.140 THE PSYCHIATRIST AS EXPERT WITNESS. . There are a number of possible causes. discursive. evasive testimony designed to avoid answering a question directly or at all. in the present context. the purpose is to allow preparation of cross-examination or rebuttal. SECOND EDITION Voir dire An expression from the French.
apparent. 82 of reports. 49. 8. use of. 4. 105–106 American Board of Forensic Examiners. 17 problems of loyalty and identification. 68 honesty of. 106 Beepers at trial. 4–5. See Clothing. 82 negotiations with retaining attorney. 115 airline guides. 16–18. 68–69 Attire at trial. 18 Billable time. 74. 112 first class. 16 treater bias. 32. 104 Advocate for truth. 3–4 Advertising. 4–5. 105 Assumptions. 87–88 Admissions. 44. 65 fighting at depositions. 15 Agency relationship. 47–48 depositions. See also Demeanor 141 . 115 Alarm clocks. 16 work product privilege. 117 “Alibi” issues. 25 Beat the Press (Fulton and Guyant). 80 Body language. 70 “Attorneys’ Guide to Experts. 70 merit of retaining attorney. 37 Alterations ethical. 113 Bipolar disorder. 61 retainers. 74 Accuracy. xiii. 62 needed for forensic functioning. 9 nonsexual seduction. 14 Adversarial context. 24–29 social relationships with. 115 courtroom. ethical model.” 106 Audiotaped interviews. 7. 52. 82–83 Announcement of forensic practice. 100 of expert opinion. 45. 23–24 Air travel. 59–60 Advances minimum fee. 63 Blackboard illustrations at trial. 105–106 Analogies and metaphors. 105–106 loyalty to retaining attorney. 35 Background of expert.Index Accessibility airplanes. 26–28. 52. 106 American Psychiatric Association (APA). 78. 30–32 misunderstanding of clinical issues. 115 meals. 77 Bias. 16 meeting with before deposition. 4. 37–38 Ambivalence. 100–101 Alternative scenarios. 19 hindsight bias. See Ethics informing of availability as forensic expert. 121 American Academy of Psychiatry and the Law (AAPL). 60 Addressing judge at end of testimony. consulting with retaining attorney during. 116 Alcoholic beverages. Dress and appearance Attorneys communication with opposing attorneys. 49.
82 Child abuse issues. 19 Capital criminal cases. 113–114 Case name or citation in written report. 48–49 involving the insanity defense. 100 Consultation services. 18–19. 118 Counsel. 70–71. 25 Conflicting stories from parties in case. 118 Criminal cases capital cases. 77 unpacking at hotel. 23 Clinical material. 48–49. 99–100 Consent Form for Forensic Examination. 33–34 threshold question. 33 The court. 7–8. 40 Child custody cases. 82 Clothing packing for travel. example of outline. 4 Class action cases. 62. how to handle in written reports. 28–29 Contingent fees. 116–117 metal detectors at. 17. 13–14. 34 Compound questions at depositions. 85–86 Brokerage organizations for expert witnesses. 99. 44 nonconfidentiality warnings. questions about. 39–40 Cellular telephones. 69 Concentration at depositions. 32. 58–59 avoidance by attorney. money. 30 validity of case. 81 delaying tactics. 86–87 Cross-examination. 77 Change of opinion. 14 criminal responsibility cases. 65–66 Confidentiality breaches as basis for suit. 121–123 Constraints on time. 74 Code language between attorney and expert. 83 Courtrooms. or experts. 86 Borderline personality disorder (BPD). 16. 33–34 merit of attorney. 14 Carry-on luggage. 30 Causation. 64–65 Cough drops or throat lozenges at trial. 24. 61. 61 trial. 32 Building a practice. 83 breaks and recesses during. letters to. 81 Communication with opposing attorneys. 97 Case review. 103–108 Camera. 47–48 Competence issues. or data. 59–60. 4. 77. 30–32 “nothing to go on” problem. 95 Court reporters. 135 . 101–102 Crises while testifying at trial. See Attorneys Countertransference. See also Video depositions gazing into the lens. 85–86 code language between attorney and expert. 108 Browbeating by retaining attorneys. 71 Candor. review of. 107 Brokering a case when unable to handle it personally. 73–79. 28 Correction of answers at depositions. SECOND EDITION Complaint. xiii. 82 Breaks and recesses depositions. 34 misunderstood by attorney. 29–40 documents. litigants. 65. 116 Coaching. 33 scheduling. 137 report.142 THE PSYCHIATRIST AS EXPERT WITNESS. 5. 113–115 trial appearance. 66 Concessions at depositions. legal. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 38 Conflict of interest.
135. 113–115 trial. 64 priority. 83–86 “yes” or “no” questions. 85 reasons for. 38 of experts at depositions. 57–72. 4–5. 75 Decision to take case. 66 concessions. 64 language/word choice. 68 of experts at trial. See also Confidentiality. 66–67 locking in/limiting expert’s testimony. 135 admissions in. 64–65 curious questions. 57–58 nondiscoverable material. review of. 64–65 later evidence affecting opinion given at deposition. Records leaving behind after trial.Index demeanor during. 80–82 of examinees during interviews. 116 Drinking. 65 questions and answers. 85 Dangerous examinees. 77–79 Departure from courtroom. 59 past. 77 unpacking at hotel. 61. 34 stenographers in. 80–82 leading questions. 60 malpractice suits. 66–67 143 interruptions. 65 correction of answer. 88 trial preparation. 59 limits of expertise. 92 Disabled individuals access to airplanes. 68 fighting by attorneys at. 84 pauses before answering. 115 access to courtroom. 64 opinions and their bases. 74 Disclosure issues. 47 nonverbal responses. 65–66 consulting with retaining attorney during. 59–60 assumptions. questions about. See Records. See Parties in case Demeanor cross-examination. 63 goals of expert being deposed. 66–67 demeanor of deponent expert. 31 Database. 83 trial. See also Depositions interrogatories. 62–63 concentration during. 69–70 videotaping of. 135. 61 compound questions or answers. 29 Defendant. 85 quotes. Privilege Discovery. 64. 117 Drugs. 62–63 reviewing. Written documentation Doing no harm. 34. 135. 26 pauses before answering. 113 Dress and appearance packing for travel. 59–60. See also Interviews. 34 assessing. over-the-counter. 91–92 privileged information. 76–77 written documentation to give listing of. Reports. 64 objections. 68 treatises. 79–80 restructuring. 58–60 goals of opposing attorney. 87–88 Depositions. 70 “gerrymandering” clinical data. vast amounts of now stored online. 114 . 97–98 Daubert challenge. 73 use during trial. 58–60 inappropriate questions. See Privilege Documents. 5–6. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 8 Double billing. 58–70. 69 Direct examination. 68–69 breaks and recesses during. 68 final preparation.
See also Hired guns definition. 6 High-profile cases. 38. 96 Harm. See also Written documentation Forensics. See Fees. 2 Forms detailed fee agreement. 37 Eye contact at trial. 88 Fees. 113 Fitness as expert. 15 Honesty. 80 Flying. 38 “nothing to go on” problem. 6. 25 External consistency of story. scholars in. 1 functions. 112–113. or experts. 13–21. 26–28 detailed fee agreement. See also Conflict of interest advocate for truth model. 115 Flip charts at trial. principles of. 75 Ethics. principles of. 80 Fabrics. 28. 129–130 standard fee agreement. 115 Feedback. 7–8. litigants. always soliciting. 15 social relationships with attorneys. See Meals Forensic countertransference. 49–51 examples. 24 Entrance of judge. 78 Global requests. of sexual misconduct. 5. 9 Humor. ethical model. 14–15 Etiquette at trial. See also Ethics of attorneys. 49–50 Employment relationship. 28. 115–116 Humility factor. 33 oaths. 8 Hearsay. 75–79. Reimbursement for travel Expert witnesses. See Countertransference Forensic practice. 16 marketing a forensic practice. 17 special expertise of. sample. 16 turndown rates. 36 “False memory” cases. 95–96. issuing. 18–19 honest advocate model. 28 Fairness. 1–3 Experts honesty of. 15 altering reports. 107 new facts at trial. 25 Flashlight.144 THE PSYCHIATRIST AS EXPERT WITNESS. 61. 82 Hotels. importance. 52–55 History of expert. sample. 62 Hired guns. 67 marketing. 15 loyalty to retaining attorney. staying with. 82 nonconfidentiality warnings. 87–88 Evidence. SECOND EDITION Family or friends. sample. xiii–xiv evidence in. 129–130 standard fee agreement. 125–128 travel costs. 51–52 Hindsight bias. 112 Failure of retaining attorney to pay fee. 13–14. 44. 32 Good writing. 47–48 cross-examination. 136 spotting the other side’s. 113 contact with opposing attorneys. deposition and trial. 60 False allegations. 61. 125–128 Gestures at trial. 15 remaining neutral. See Meals Emotional injury cases. 50–51 interviews. 78 Eating. 103–108 Forensic reports. 100–101 billing. sample. 28. See Air travel Food. 30–32 of experts. 28. doing none. 67 Expenses. 25 Honest advocate. 44 . for travel.
37 alternative scenario. 119 Materials. 35 order of. 75 respect for. 39 Interviews. 45–46. 45 Juries. 106 publishing/writing. 53. 99. 116–117 Media coverage and cases. 45 Lodgings. 103–108 announcement of practice. 106 Locality rules for standard of care. 34 . 37 interference. 46–48 social service history. pros and cons. 35 Involuntary gestures at trial. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 34–35 plaintiff. 82 Jet Smart (Fairchild). 38 emotional injury cases. 51–52 Medical records. 35 retention of records. 36 presence of attorney. 36 nonconfidentiality warnings. 112 Meals airplane food. 18 Integrity. 115 during trial. 95 Likelihood principle. 87–88 dismissal by. 40 videotaping or recording. 107 lecturing. 78 Jargon. 35 priority. 137 Intervening causes. 105 ethics. 83 testimony before. 34 depositions. 7 Listings as a marketing tool. 49. 98 145 Laptops. 6–7. level of scrutiny. 36 Internal consistency of story. 112 Judges addressing. 18–19. See Attorneys Leading questions on crossexamination. 49–50 external consistency of story. 2 entrance. 106 specialization. 106 Letters to attorneys.Index Identification with retaining attorney. 37–38 criminal responsibility cases. 79–80 Jurisdiction-specific language. 105 Judgment. importance of. 47 elements of malpractice. 91–92 recording. 49 demeanor of examinee. 107 Interference of attorneys during interviews. 48–49. 84 Leaving courtroom. suspending. 107 strategies. 86 Malingering. 34–35 plausibility of case. 97 to the court. 45 locality rules. 38 note taking. 6 entrance of. 75 informing of availability as forensic expert. review of. 138 Marketing a forensic practice. 16. 86. 47 standard of care. 37. 45 records. 87–88 Lecturing as marketing tool. 57–58. 43–48 creating timelines for. 34–38 “alibi” issues. 52 Malpractice suits. 137 Insurance challenges. 16 Insanity defense in criminal cases. 36 Interrogatories. 36 internal consistency of story. See Hotels Loyalty to retaining attorney. 115 Lawyers. 79. 106 listings. for travel.
77 Personal injury cases. 64 interrogatories. 82–83 Microphone use at trial. 49–51 Practice pointers. goals of. 91–92 Privilege. 52–55 contact with. 50 Preliminary reports. 47–48 plaintiff interviews. not compromising. 67 National Forensic Center. 70 Medication issues as basis for suit. use of. 86 Nonconfidentiality warnings. 81 Postreport negotiations. 97 . 16. 26 Opposing attorney. 25 initial contact. 26–28 Networking. 14. while traveling. 117 Pretrial conferences. 15 Objections depositions. 91–93 Precautions. 16–18 clinical and forensic issues. 13–14. 77 keeping notes. 71 Oaths. 100–101 Posttraumatic stress disorder. 24–29 background of expert. 64 Peer review for testimony. 112 Packing for travel. 74 Prior testimony by expert. 65. 85 depositions. 5. 35. 24 decision to take case. 24 request of retaining attorney. 15. 40. 118 Metaphors and analogies. 117 Metal detectors at courthouses. 97 Preparation for trial. See also Web sites storage of past depositions. 137 depositions. 137 Negotiations with retaining attorney. questions of. See Parties in case Plausibility of case. 82 interrogatories. 57–58 trial. 4–5. 29 fees. 54. 34–35 Patience. SECOND EDITION Online. 57–58 Objectivity. 36 Politeness. 44 Melatonin. 113–115 Parties in case case name or citation in written report. 66. 115 Preexisting illnesses or conditions.146 THE PSYCHIATRIST AS EXPERT WITNESS. See Trial preparation Prescription medications. unfailing. 30 Occasions. See also Confidentiality deposition. 47–48 Outcome of case. 104. 25 bias. 137 Note taking importance of. 49–51 Morality. consulting with retaining attorney at. 47 during interviews. See also Marketing a forensic practice New facts at trial. 106 Negligence. 38 Nonsexual seduction. 39 vulnerability of plaintiff (“thin skull”). 68 Pauses before answering cross-examination. 74. 97 communication with opposing party. 45. writing for. See Emotional injury cases Physicians’ Desk Reference (PDR). effect of. 114. 25–26 Priorities. 88 The Packing Book (Gilford). 82 Mitigation of damages. 24–25 timing and scheduling. 65 work product privilege. 8 Pens and pencils at trial. 17–18. 80 Misunderstanding of clinical issues by attorney. 58–60 Opposing expert witnesses. 82. 26–28 fitness as expert. 138. 69 Plaintiff.
33. importance of. response to. 6. See Breaks and recesses Recorded interviews. 40 Returning calls. 74 Reimbursement for travel. See also Malpractice suits Suitcases. See Oaths . 138 Standard of proof. 46 criminal responsibility cases. See also Packing for travel Supplementary reports. 9. George. traveling with. 53. 3 Suicide malpractice cases. 112 Reality-testing.Index Pro bono work. level of scrutiny. 26–28. 70 Skepticism. 75 Sexual misconduct cases. 107. 34 malpractice cases. 106 Publicity and cases. 25–26 as marketing tool. showing toward juries. 112 Respect. reasonable medical certainty. 34 retention of. 97 Rehearsing testimony. 7. 93 Seating at trial. Robert I. 108 written documentation. 79 Stenographers. 36. 131–133 travel books. 113–114. 138 Rebuttals. 54 Resources for suggested readings. 97–98 Supporting data for written reports. See also Court reporters in depositions. 51–52 Quoted passages. See Negotiations with retaining attorney Retention of records. 40 social service histories. 112 Reports. 35 Records. 117 Social relationships with attorneys. 113 Relatives. 25 Reasonable medical certainty. 64. 40 case review. 54. 107 Standard of care. 95–102. 49 database of. 91–93 personal conflicts. nonsexual. 112–113 Santayana. 18. 38–39. 73–74. 28–29 Running shoes. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). power of. 6–7. 66 Simon. 31–32. 24 Publications by expert. 9. 14 147 Retaining attorney. 47 Socratic method. 25 Required action. 5–6. negotiations with. 119 Site visits. 81 Sworn statements. 92. 43–45. 47 Referrals. 100 Recesses. 131–133 travel books. 106 Psychiatric malpractice suits.. 3. 49 Sequestration. 7. See also Written documentation Reputation of expert. 99 Surprised expert. maintaining appropriate. xiv. 82. 17–18 Self-serving behavior. 85 Readings. 75–76 Seduction. 45–46. 15. suggested. 46–48 medical records. 6 Scheduling issues. 44. 115 Rental cars. 104–106. 138 of witnesses. 83 Retainer. 82 Silent treatment. 16 Social service history. review of. 138 Professional meetings. 68 Storytelling. staying with. obtaining in advance. 79. 108 Roles of expert. review of. 33–34 CATO model for. 6 Specialization. 48 Sleeping.
77 what to bring into court. 74 Teaching role. 87 . 117–118 Trial preparation. 77 courtroom. 37–38 Trial. 25–26 roles of expert. 87–88 eye contact. blackboard. 82. 73–74 practice sessions. 69–70 Treatment recommendations. 82. 44 Throat lozenges or cough drops at trial. 77–79 departure from courtroom. 113 examinees. 112 Traumas. or flip chart. 74.148 THE PSYCHIATRIST AS EXPERT WITNESS. 78 illustrations. 49–51 Tarasoff-type cases. importance of. 77. 78–80 Telephones calls during trial breaks. 74 Truth telling. 118 Time creating timelines. 43–56 criminal responsibility cases. 112–113 travel information. questions about. 8–9 Treatises. 115 lodgings. 80 pretrial conferences. 139 Taxicabs. 35 keeping track of. 117 time planning. 108 wake-up calls. 26–28 travel time. 75–76 supplies. Honesty Turning down cases. 74 rehearsing. 92. 14–15. 28–29 Third-party cases. 74 planning. 77 etiquette at. 77 returning calls. 116 Testimony at trial. 34 for depositions. 75–79. 77 breaks and recesses during. 85. 80 language/word choice. 74 using database during. 48–49 emotional injury cases. 91–92 seating at. 64 for interviews. 74. 115–116 meals. See Crossexamination demeanor at. 55. See also Cross-examination prior testimony by expert. SECOND EDITION cough drops or throat lozenges. 73–74 language/word choice. effect on standard of care. 76–77. 35 flying. 77 pointers. 44. 116 Treater. 51 evaluating. 112 unpacking. 86. 79–80 timing and scheduling tips. 118 crises while testifying. See also Ethics. 74 pitfalls. 113 Travel service. 86–87 cross-examination. 45–46 Types of cases. See Meals packing. effect of. 77. 80 new facts coming to light. 82–83 lunch during. 80 humor. 86 pens and pencils. 80. 117–118 testimony. 76–77 water. 112 Traveling. versus expert. 81–82 priority. 8. 112–115 sleeping. 85–86 conclusion of questioning. 79–80. 60. 73–90 beepers/cellular telephones. 13. 74 presentation. 111–118 billing. 87–88 dress and appearance. marker board. 116–117 microphone use. 139 Type of practice expert has. 112 Travel expenses. bringing into. 19. 86 cellular telephones. 39–40 Travel books. 61.
139 Understanding of clinical issues. 67 Video depositions. 116 Water during air flights. See also Records. 100 criminal case. Reports case name or citation. 140 examples of. or data. misunderstanding by attorney. 97 supplementary reports. 7 Waffling in answers. 79. 35 Visual aids. how to handle. 97 interviews/items reviewed. 98 letters to attorneys. 82–83 149 Word-of-mouth referrals. 70. 101–102 database listing. 99–100 constraints on time. 77 Web sites. 107 Weight to be given to on-site psychiatrist’s observations. example of outline.Index high-profile cases. 4–5. 140 Written documentation.” 18–19 “Ultimate issue. questions of. 64–65 reports. 97 conclusion. 100 referrals. 98–99 conflicting stories from parties in case. 115 in courtroom during trial. 97–98 supporting data. money. 51–52 psychiatric malpractice cases. 44 White noise. 95–102.” 2. 82 Values. 97–98 jurisdiction-specific language. 74. 99 . 117 Word choice depositions. 53–54 Wake-up calls. 100–101 preliminary report. 74 Voltaire. 97–98 headings. 97 principles of good writing. 96 rebuttals. 70–71 Videotaped interviews. 108 Work product privilege. 104–105. 98–99 postreport negotiations. 100–101 trial preparation. 97 occasions. 43–48 “Ultimate ethical test. 97 opinion.