The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3

First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

4

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

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Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

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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

7

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

8

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

9

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

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

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

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

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

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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. More narrowly. knowing a lot about a certain topic and having extensive experience therein.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. the expert is distinguished from the ordinary or “fact” witness by an essential attribute: the fact witness is limited to testimony about what can be discerned by the five senses by direct observation or experience. that is. Indeed. In this book. is a psychiatrist who uses particular skills. clinically defined. even if those conclusions are based on others’ observations. In the courtroom setting. the question “What makes an expert?” seems to answer itself: expertise makes the expert. both clinical and nonclinical. an expert witness may review a chart filled with other clinicians’ observations 1 . A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. the concept of a psychiatric expert witness. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. For example. This essentially didactic functioning—more closely resembling teaching than anything else—often requires intellectually bridging the gap between two widely divergent realms of discourse and th ought: psychiatry and law. to provide information and understanding relevant to the legal system’s concerns. in contrast the expert is entitled by the role to draw conclusions.

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

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

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

suspects. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. including records. 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. litigants. In contrast. legal documents. later addressed. convicts. Most attorneys know not to include details of their trial strategy in letters to you. or basis. with exceptions. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. lest they be exposed prematurely to the other side. and captured as well in the consent form for forensic examination as Appendix 1. of course. or impression. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. Therefore. with some exceptions. reports. and parties of whatever stripe—that they are not to expect business as usual (meaning usual confidentiality) just because they are talking to a psychiatrist. when in doubt. my own or others’ interview notes. As we will see later. Although therapy usually transpires within the patient’s self-reported data. 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. your personal attorney can always give you advice on nondiscoverable matters. One trenchant reason for this approach is to obtain corroboration or discorroboration. The term also suggests that an expert’s opinion rests on a base. be carefully documented. correspondence. Warnings are further discussed in later sections about the interview itself.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. defendants. the forensic perspective almost always extends beyond the individual examinee. it should. The issue here is the tension. The retaining attorney will guide you in this matter. is private and confidential. . Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. court-related issues are often matters of public record and public exposure (in open court). between the “whole truth” and the “admissible truth” (4). fantasy. and relevant literature. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work.

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

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

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

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

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

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

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

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

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. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. 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. Although these referrals are not strictly turndowns. Nevertheless. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. say. for example. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. they do represent cases in which you have elected not to participate. you could receive a number of good cases. Consequently.” Once under oath. “White on this side. or a number of invalid or meritless cases. “What color is that house over there?” The novice answers. speculate about.” . An author described the special sensitivity to what one can swear to in this way: You are asked. In forensic practice. for a particular case outcome).” Your correct answer would be. the only touchstone is absolute truth as you know it or understand it. Consequently. This model has been called the honest advocate model.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. and the expert becomes the fully neutral observer and reporter. inpatient care. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. Partisan pressures from the adversary are put aside. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. that position is always acceptable. guess. and 2) you answer cross-examination truthfully (see the following discussion). all of which you might accept. “White. only over those you elect to accept. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). all of which you should turn down. and so on. One model holds that once the oath is taken. that is. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. This model is sometimes called the advocate for truth model.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

45

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-

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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,

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

credible mental illness (and therefore a likely defense) versus a case with none of these qualities. Criminal Responsibility Cases In cases of criminal responsibility. The truly challenging case lies between these extremes. To read critically. 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. remember to consider diminished capacity as an intermediate condition. Because of the flow of material and its often fascinating content. and so on.48 THE PSYCHIATRIST AS EXPERT WITNESS. namely. For example. the more helpful it would be in forming your opinion. SECOND EDITION Although the more information gathered. and records of any treating clinicians from points close in time to the alleged acts. a case wherein the defendant had or has a major. you are lulled by this informal. “I think you should talk to the retaining attorney. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. what do you think about this amazing case. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. you can be drawn into the prose by the unfolding drama therein recorded.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. eh?” Presumably. Doctor. friendly approach into letting your guard down and discoursing freely on your opinions. On occasion. data gathered at the time of the alleged act. In those jurisdictions where the issue exists. is historical material. it is inappropriate to call or write directly to the opposing attorney. Out of the entire panoply of available material on a criminal responsibility case. Of second-rank importance. are the most significant. exert the effort to stand back from the process. your attorney’s confidential trial strategy. you may confront the classical poles of the issue. 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. These would include witness and victim reports. in my (and almost everyone’s) view. while reading a deposition. statements of the arresting officers. Is this defendant someone who seemed to show . litigant. 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. The appropriate response is. weighing the logic of the deponent’s responses. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. or expert. but still relevant.

I find the interview for an emotional injury case to be of primary value. the interview in a criminal responsibility case has the least power of all the data collected. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. The novice expert should become familiar with useful publications on the subject (7. although mandatory and irreplaceable. some on . This issue of proportion is a common pitfall for the novice plaintiff ’s expert. as with all forensic evaluations (6). Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. The interview also gives you a chance to assess what might be called a sense of proportion. In one case.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. 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). All the interview data must be fitted to the totality of the database. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. Finally. a surprising number of individuals avoid treatment. malingering is especially common and problematic in this assessment. an injury from which he recovered rapidly without lasting effect. an unrelated accompaniment to the crime. Because of the seriousness of criminal penalties. or did he or she have a long history of mental illness with recurring hospitalizations and delusional symptoms that relate directly to the alleged act? Recall that mental illness may bear a wide variety of relationships to crime: a factor in responsibility. 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. and so on. a plaintiff drank from a chemically contaminated bottle and burned his mouth. The most valuable dimension of the interview is obtaining previously unrecorded history and the defendant’s own self-reported rationale for his or her actions and own description of the internal mental state at the time of the act. the result of the crime. the cause of the crime. for example. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe.

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

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

rip off the covers in moving cars. in hopes that some of that public will later become jurors. 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 attorneys have to create the case from scratch. you simply may be reading your newspaper before you are asked to consult on a case. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. A plaintiff can say to the media. because they don’t want to give away trial strategy. of course. there is no case until it is brought. consciously or unconsciously. By doing this. pushing the case for all it is worth. (Chapter 9. “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. In short. The defense attorneys must say “no comment” each time. In malpractice cases. but so do a number—perhaps a greater number—of venal witnesses. None of this trumpeting means anything. “Developing and Marketing a Forensic Practice. the defense attorneys cannot answer the media’s questions. Ninety-nine percent of the time. to influence the public powerfully in advance.” in this volume provides more reliable methods of publicizing your practice. and spill hot coffee over their thighs and sue McDonald’s. you have to be alert to this potential biasing factor and be aware of the media asymmetries. Even though you may try to tune out the media. the plaintiff and prosecutor inevitably bias the public’s perception.” In another case. Some attorneys may try. Therefore. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. SECOND EDITION parties.) Another stigma of the hired gun is the counsel of perfection. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. the standard references the average reasonable . selling testimony instead of time. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. until it is proven in a court of law. however. for example. for example. lest your review should begin with a one-sided perspective. Recognizing this blot on our collective escutcheon will prepare you to deal with or counter the actions of the hired gun in court or elsewhere (10). but this principle may be readily overlooked in a media frenzy. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly.52 THE PSYCHIATRIST AS EXPERT WITNESS. a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue.

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

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

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

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

Under some circumstances. if any. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. Note that some jurisdictions practice “trial by ambush” without expert discovery. there is the period known as discovery. In both cases. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. From the viewpoint of the expert. preparing for what to expect from the various witnesses and documents. use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. Attorneys probe and define the limits of their cases. the attorney will likely write the actual prose of the 57 .CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions.

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

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

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

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

ask that it be broken down. Question (attorney for staff member): Knowing what we know today. I don’t—I wouldn’t agree with you there. it is serious. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. If there is the slightest doubt. A more effective answer might have been. or evidence of a propensity for violence. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. Second. so you were negligent. warning. to be an appropriate way of determining competence in the clinical situation. therefore. his act could . ask to hear it again or have it read back. in the following example. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. so you were negligent. I am serious. yes. yes. Note. let me answer all three components. On rare occasions. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. this could be used to instruct both the forensic assessor and the treating clinician as to a means of determining the capacity to enter into informed consent. the case manager’s lack of understanding might be negligent.] Answer (by case manager): I don’t think I would agree with that. they have to enter into a dialogue with their patient. you can give a useful compound answer to a compound question.62 THE PSYCHIATRIST AS EXPERT WITNESS. it’s your testimony that on [date] you did have a clear understanding of [patient’s] propensity for violence [and therefore are negligent because you did nothing about it]? By imputing to the patient a hindsight-based propensity for the violence only now known to have occurred. or you knew and didn’t act. in order to determine competence. Question: So. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. but it is quite risky and may compromise clarity. no. can we agree that on [date of murder] you did not have a clear understanding of [patient’s] propensity for violence? [Questioner assumes there was a propensity in the patient—a hindsight view—hence. “The patient gave no sign. And the third part of your question is. are you seriously telling this court that that sentence [quoted from an article] is one which instructs the forensic witness and the medical health [sic] treater that. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. If the question is compound or complex. First. which I codirect.

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

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

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

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

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

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

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

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

The video deposition presents a number of possible pitfalls. Remember to keep your language level. “It’s an us-and-them situation” was rendered “It’s an S and M situation. If the deposition has been particularly instructive or noteworthy. the video may also serve as the vehicle (in this case.” and rendering. at times. and must beware of inappropriate gestures and personal bodily attentions. At least one copy of the transcript is returned either to the court reporter. but under some circumstances the notarization can be waived. In the current economy. My personal favorite is when the phrase. you are under constant scrutiny.Discovery and Depositions 71 the audience. careful. . the deponent expert should always ask for a personal copy to review in preparation for trial. representing the jury. read it very carefully. the retaining attorney. “irresponsible” as “responsible” are small changes with profound results. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. Recall that omission of a comma. and pedantic level of the ordinary deposition but in basic. and the deponent signs under pains and penalties of perjury. this time in a permanent record. not at the ponderous. Most court reporters are extremely good at their jobs. juror-friendly. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. instead of—your personal appearance in court. you should try to direct your gaze toward the camera lens. of the word “not. who may see the video displayed in addition to—or. This approach risks eventually being papered out of house and home. say.” The errata sheet on which you note minor corrections (substantive testimony usually should not be changed without notification of your retaining attorney) is customarily signed and notarized. jargon-free. checking for errors and typos. If the expert is known to be unavailable for the trial dates. the expert may wish to retain a copy for teaching purposes after the case is over. After the Deposition Always ask to read and sign the deposition. the only vehicle) for the expert’s testimony. but errors can creep in. When you receive the deposition transcript. or the deposing attorney for distribution to the parties. trial-suited English. 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. As in the trial described in the next chapter.

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

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

if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). You also need to hear how the trial is going. 6.74 THE PSYCHIATRIST AS EXPERT WITNESS. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. the location of the trial. and the expected cross-examination. 5. Clarify and confirm your travel arrangements. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. If you have a disability. . parking arrangements. the unknown issues. Consider taking a taxicab to local courts to avoid parking hassles. Even more distressing. Most of these matters are best handled on direct examination where some measure of control can be exercised. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. and your past experiences. The pretrial conference is probably one of the most important stages of preparation for trial. 7. Pretrial conference. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Review the weaknesses in your opinion. Confirm travel arrangements and other details. location of restrooms. 3. Insist on this conference if the attorney is equivocal or resistant to the idea. and the data relevant to the other side of the case. Practice. what previous testimony has been given. and what the emotional climate of the courtroom is. Build in contingency plans for the possibility that the trial extends into the next day at least. You should rehearse ways of expressing information to the jury. On cross-examination. Presentation. what the judge is like. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. your publications (especially those relevant to this case). you need to know through choice and practice how you will convey your opinion to the jury. the contradictory evidence. practice sketching any visual aids you will need for the courtroom blackboard. 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. Clarify in your own mind how you plan to deal with questions about your fees. the relevant literature. the floor of the courthouse on which the courtroom is located. and all such details. 4. and select useful examples from your experience to make central points. Define the limits of your testimony. Pitfalls. It is not enough to know the database. 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.

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

or your own table of contents devised for more extensive documents. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. Note that some anxiety is normal.. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. My own preference is to strip down what is brought. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. Note again the importance of having and practicing a plan of organization. The expert appears more confident and knowledgeable about the case. dog-eared pages. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. On the other hand. in an often extensive chart or deposition. Each preference has its pros and cons. even for experienced experts. the attorneys will have it). having the whole database on the stand permits greater support of your testimony with specific data from the documents. yellow self-stick notes. only a copy of the expert report that is already in evidence or only a curriculum vitae). 2) as noted. The expert should determine which of these two approaches is more suitable. tabs. essential medical records . 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). The downside is the need to remember a vast amount of detail and to recall where. because his or her opinion is being given from memory. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. while the experts are testifying. if needed. SECOND EDITION the room looks like from the hot seat). a particular citation is. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. When no documents are before you on the stand. as are all the substantiating data. What to Bring Experts and their retaining attorneys vary in whether they prefer.g. and ensures the accuracy of your recollection by direct verification. the opposing attorney cannot search through them for something with which to impeach your testimony. Key documents might include my report and interview notes. Recall that in almost every case. 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.76 THE PSYCHIATRIST AS EXPERT WITNESS. and 3) you may become lost in excessive data.

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

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

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

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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

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meets with your unfailing politeness and persistent civility is perpetrating suicide, not homicide. If either side asks a genuinely excellent question, say so but only if you mean it. Answering cross-examination questions does not require that you help out the attorney with various possible misunderstandings he or she may have about psychiatry; just answer the question. The only exception to this rule is when so profound a misunderstanding of some fact is taking place that for you to answer the question would merely precipitate and perpetuate a French farce situation of two parties on totally different wavelengths; this situation is not funny in court. Clarify the point, then wait for the next question.

Some Pointers
Some experts develop a code with their attorney to aid covering certain points brought out on cross-examination. For example, expert and attorney may agree that if the expert prefaces an answer on cross-examination with, “Well, that’s an interesting point...,” it means that the expert wishes to be asked about the issue on redirect. Such an arrangement may be considered, but in practice it may be more cumbersome and distracting than it is worth. In a personal communication (K. Lipez, November 1996), an experienced judge noted that his opinion of an expert falls if the expert has failed to anticipate, and seems unprepared for, an obvious line of questioning. For example, in a criminal trial with a proposed insanity defense, the question of malingering is highly relevant. An expert who seems surprised at this issue being brought out on cross-examination reveals serious lacunae in understanding the forensic issues involved. The same judge cautioned against too facile a psychiatric or psychological explanation of human behavior. The posture that everything can be explained (or even worse, “I can explain everything”) is unconvincing to juries and may even imply that the examinee has succeeded in manipulating the psychiatrist. Finally, I suggest giving up the fantasy of being able to predict entirely the effect of what you say on the jury: the jury will decide how the jury will decide. In a case in which a psychiatrist was being sued for malpractice in a patient’s suicide, I gave extensive defense testimony and remarked, strictly in passing, that, although it would not be ethical to give my own independent diagnosis—because I had not seen the patient—the diagnosis given by those who had seen the patient was fully consistent with the recorded symptoms. A poll of the jury after the defense verdict revealed that the jury had been impressed and perhaps even swayed by the fact that the only witnesses who used the word ethical were I and the physician-defendant.

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An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine [4]. In fact, given the actual frequency of sexual misconduct complaints by BPD patients against their therapists, patients with BPD are statistically more likely to be initiators of true claims than false ones.) Horrified at this evolving debacle and unable to stop it or even comment on it until the next break, I took refuge where all witnesses in such a spot should take it: the absolute narrow truth. The attorney might catch on or might not, might be baffled or might not, might be annoyed with you afterward or might not, but those are not your problems. The oath always provides sanctuary in a storm. A similar dilemma faces the testifying expert when some significant fact is revealed for the first time during trial testimony—a fact that changes your opinion. Do not panic and feel guilty, abashed, or inadequate. This revelation may be the lawyer’s lapse, but it is not your problem. Your job is to tell the truth; if the facts substantively change, an ethical expert’s opinion would be expected to change.

Language Level
Remember to keep your testimony basic and jargon free. Illustrate your points with analogies and metaphors that you believe the average jury will follow. The following is an example of how you might discuss in court the mechanism of action of a selective serotonin reuptake inhibitor:
You know that the spark plugs on your car work by sending a spark across a narrow gap (show by using your fingers). Well, the nerves in your nervous system, including the nerves that control your mood, communicate in the same way (sketch a synapse). The upstream nerve sends an electrical current (draw a lightning bolt) down to this spark gap called a synapse (write word on board), and when it gets there, the current releases little blobs of chemicals like tiny water balloons. These float across the spark gap and hit certain “hot buttons” on the end of the downstream nerve and set off the next electrical current (draw another lightning bolt in the downstream nerve). Now that these chemicals are out there, how do you turn them off for the next bolt? The upstream nerve sucks them back up like a vacuum cleaner, and the system is ready for the next nerve impulse. Now this medication blocks

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

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

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

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

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

Finally. For your personal development as an expert. If you have traveled far with a heavy load of database materials. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. the best teacher. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. It is perfectly appropriate after some time has passed to call and ask the outcome. consider making advance arrangements with the attorney so that he or she will hold on to your case materials and retain or discard them as desired. A far more detailed analysis of testimony can be found elsewhere (5). always seek feedback and reactions to your participation. SECOND EDITION for good (but partisan) work. and the like—impinge on trial outcome. Forces beyond your control and outside your testimony—such as the demographics of juror selection. I recommend instead treating each testimony experience as a kind of continuing education: What did you learn? What questions were you asked that caught you by surprise? Which crafty attorney’s gambits succeeded and which failed during your crossexamination? Did you in fact get to make the points that you believe needed to be made? Did you feel you were clear to the jury? Was there a better way of explaining or describing something other than the way it came out in court? These questions and their thoughtful answers are the true indexes of your success in trial. you seem rude. this task is for the lawyers. Take only your report. by letter or telephone. some forget. 2000 .88 THE PSYCHIATRIST AS EXPERT WITNESS. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. if you do not or you ignore the outstretched hand. as much as possible about what happened and why it happened. Reaching out your hand to the other side’s party or attorneys in some desperate dramatization of neutrality or even-handedness is likely to confuse everyone. Because this brief volume can serve only as an introduction. while acknowledging that experience is still. as always. References 1. Gutheil TG. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. Surprisingly. however. Most courteous attorneys will inform you later. “juror countertransference” toward the attorneys. J Psychiatry Law 28:235–251. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise.

The Expert in Trial 2.

89

3. 4.

5.

Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007

Suggested Readings
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004

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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

CHAPTER 7

Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.

Scheduling Issues
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.

Priorities
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

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

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

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

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

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

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

malpractice. 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 do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. As Dr. sometimes different spins on the truth. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. the expert should scrupulously avoid assuming one side is correct.. “Reasons supporting opinions should be clearly and fully stated. Resnick explains. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. but occasionally. Second.Writing to and for the Legal System 99 rience (what you have found for yourself by practicing in the field about which you are testifying). Third.e. The reader should not have to use his/her own inferences to understand the point. offer alternative opinions. sometimes frankly contradictory. or other. standardized legal language). “If there are two versions of the facts. 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. In criminal cases involving the insanity defense. is essentially boilerplate (i. In these cases. usually.. If your conclusion comes at the end of the report. this section should contain extracts of previous material directly supporting the points you are making. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. it is predictable that plaintiff and defendant tell different stories. Finally. Supporting Data After the conclusion.” Multiple Realities In civil cases. Dr. although representing the core of your opinion. the defendant usually has admitted the act for which he or she is charged. If your conclusion is stated at the outset. be it competence. your conclusions should be presented in . insanity. 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). you can present the supporting material in several ways. and credibility as an expert witness. Remember that the conclusion. Dr. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. effectiveness. Resnick states.e.” In every case. more likely than not).

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

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

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

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

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

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

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

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

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

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

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

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

if you are flying to a case and use air travel time to review the case. If you review a different case on the way back. then. and for the regular three meals. respondents to our survey apparently threw up their hands and billed everyone for everything! Some of our other studies (3–5) revealed the remarkable lack of agreement among experts as to what was fair and standard. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. fortunately. It is possible. is addressed nowhere in the forensic literature). which are. massages. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend.. a useful principle is to avoid double billing in any form. rare but extremely stressful when they do occur. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. but not alcoholic beverages. Seek equitable division of costs for multiple-case trips. or 2-hour long-distance calls to your paramour. 1 day at your day rate. because some law firms are slow to reimburse hotel and plane expenses). You have enough to worry about . for one or two telephone calls per day to the office to check on things. you may bill for that time but not for the ticket because the first case paid the whole trip already. the literature is relatively unhelpful (the issue of double billing. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. do not bill for sleep (you do it anyway). for one telephone call to the family. The Ethics of Billing Bill strictly according to your fee agreement. do not bill separately for that work because you are already being paid a day rate. in-room movies. If the trial runs longer than a day or so. Until data emerge. For example. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. Avoid checking baggage if you can. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. for example. Separate business from personal comfort.g. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. 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.

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

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

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

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

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

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

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

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

I certify that I have answered any questions my client asked about the procedure. Dr. he/she appears competent to understand it. Signed. Any report in relation to my case will not go to me but will go directly to my attorney. of course.Appendix 1: Consent Form for Forensic Examination 123 5. Gutheil’s retaining attorney. or the court as provided by law. to my assessment. 20 . a court officer. free to show it to me. that individual is. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Attorney for examinee Print name Date day of .

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

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

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

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

Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. if it appears that substantial services are yet to be rendered. consultation with counsel. If travel from my office is necessary to perform any of these services. LARRY H. Any credit balance remaining will be refunded upon the termination of my services. psychiatric interview or evaluation. the hourly 129 . I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. STRASBURGER. 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. 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. Psychiatric services may include an initial consultation. This retainer will constitute a credit balance until exhausted. and report preparation. Thereafter. I may require an additional retainer. M. interviews with family members or other persons.D. review of records.

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

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

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

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

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

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

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

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

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

in the present context. See Gutheil 2007. Work product A designation of privacy for material that is part of the attorney’s trial strategy. a subexamination before or during the trial in which the opposing side attempts to get a sense of what the expert plans to give as testimony. There are a number of possible causes. evasive testimony designed to avoid answering a question directly or at all. the purpose is to allow preparation of cross-examination or rebuttal. work product occupies a special category of privilege and is usually not discoverable. This may apply to certain communications between expert and retaining attorney. literally “to see. to say” but more relevantly. Waffling An expert’s rambling. Chapter 4 (reference 11). discursive. SECOND EDITION Voir dire An expression from the French.140 THE PSYCHIATRIST AS EXPERT WITNESS. . “The Problem of Evasive Testimony” in Suggested Readings.

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

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

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

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

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

8 Pens and pencils at trial. 26–28 fitness as expert. 77 Personal injury cases. 82. 25 bias. 97 communication with opposing party. See Trial preparation Prescription medications. 115 Preexisting illnesses or conditions. unfailing. 24–29 background of expert. 47–48 plaintiff interviews. 24 decision to take case. goals of. 4–5. 113–115 Parties in case case name or citation in written report. 26–28 Networking. 40. consulting with retaining attorney at. 52–55 contact with. 74 Prior testimony by expert. 118 Metaphors and analogies. 71 Oaths. 25 initial contact. 137 Note taking importance of. 17–18. 68 Pauses before answering cross-examination. 49–51 Practice pointers. 36 Politeness. 82–83 Microphone use at trial. 81 Postreport negotiations. 24–25 timing and scheduling. 47 during interviews. SECOND EDITION Online. 54. 38 Nonsexual seduction. 45. 29 fees. 64 interrogatories. 80 Misunderstanding of clinical issues by attorney. See Parties in case Plausibility of case. 65. 117 Pretrial conferences. 138. 85 depositions. See also Marketing a forensic practice New facts at trial. use of. not compromising. 88 The Packing Book (Gilford). 57–58 trial. 16. 77 keeping notes. 97 . 15 Objections depositions. 65 work product privilege. 15. 112 Packing for travel. 137 depositions. 57–58 Objectivity. 47–48 Outcome of case. 14. 13–14. 16–18 clinical and forensic issues. 44 Melatonin. effect of. 104. 26 Opposing attorney. 70 Medication issues as basis for suit. 137 Negotiations with retaining attorney. 91–92 Privilege. See Emotional injury cases Physicians’ Desk Reference (PDR). 100–101 Posttraumatic stress disorder. 114. questions of. 35. 82 interrogatories. 58–60 Opposing expert witnesses. 50 Preliminary reports. 97 Preparation for trial. See also Web sites storage of past depositions. while traveling. 64 Peer review for testimony. 24 request of retaining attorney. 30 Occasions. 74.146 THE PSYCHIATRIST AS EXPERT WITNESS. writing for. 5. 39 vulnerability of plaintiff (“thin skull”). 25–26 Priorities. 34–35 Patience. 67 National Forensic Center. 49–51 Morality. 106 Negligence. 117 Metal detectors at courthouses. 91–93 Precautions. 86 Nonconfidentiality warnings. 69 Plaintiff. See also Confidentiality deposition. 66. 82 Mitigation of damages.

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

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

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

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