The Psychiatrist as Expert Witness
Second Edition

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

II. Title. Includes bibliographical references and index. Forensic Psychiatry. [DNLM: 1. and routes of administration is accurate at the time of publication and consistent with standards set by the U. American Psychiatric Publishing. Expert—United States. schedules. p. Gutheil has no competing interests to disclose. Forensic psychiatry—United States.G8 2009 614′.Note: The author has worked to ensure that all information in this book is accurate at the time of publication and consistent with general psychiatric and medical standards. Books published by American Psychiatric Publishing. Gutheil. W740 G984pf 2009] KF8965. I. therapeutic standards may change. The psychiatrist as expert witness / Thomas G. Food and Drug Administration and the general medical community. paper) 1. 2. As medical research and practice continue to advance. and that information concerning drug dosages. Dr. however. Gutheil. Inc. VA 22209-3901 www. Companion to: The psychiatrist in court / Thomas G.S. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. cm. specific situations may require a specific therapeutic response not included in this book. Evidence. . 2. Psychiatrist in court.org Library of Congress Cataloging-in-Publication Data Gutheil. 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. c1998. Thomas G.. — 2nd ed. Inc. Inc. ISBN 978-1-58562-342-6 (alk. For these reasons and because human and mechanical errors sometimes occur.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Gutheil. Copyright © 2009 American Psychiatric Publishing. Moreover. Expert Testimony.appi. Thomas G. 1000 Wilson Boulevard Arlington. ALL RIGHTS RESERVED Manufactured in the United States of America on acid-free paper 12 11 10 09 08 5 4 3 2 1 Second Edition Typeset in Adobe’s Optima and Warnock Pro.

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

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

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

5

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

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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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Similarly. 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 . although not common in practice. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. The situation does reveal some complexity. bias can be exceedingly subtle. In this model the attorney lavishes praise on the expert. promises many future retentions. if the countertransference is unmanageable. for instance. Somewhat idealistically. 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. this effort may be termed nonsexual seduction. and may add blandishments such as dinners at expensive restaurants and the like. an attorney. you may feel unable to examine objectively a child molester. This neutral position is highly desirable for that reason. 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. 337).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. The fact that the position is more or less neutral does not. An empirical study aimed at obtaining a sense of the prevalence of this and other attempts at influence revealed that 35% of the admittedly small sample had experienced such efforts “apparently aimed at obtaining a favorable opinion” (4. eliminate other subtler biasing factors. such as overidentification with the judge or the “system. 33) However. p. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. There is no shame in this. If you are a victim of child molestation.” Note also that. of course. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. of course. (p. as a clinician. you are expected to manage your countertransference toward the examinee or the examinee’s actions. many expert biases are not detected either by the adversary system or even by the experts themselves. you should refer the case. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment.

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

yes.The Expert’s Ethical Universe 19 TABLE 2–1. Gutheil and Simon (6). the true extent of their opinions. Therefore. the limits of your knowledge.” Your retaining attorney exerts the pull of retention. Finally. and identification as above. expert testimony is like that. defend those opinions passionately and fiercely on cross-examination. the limits of your credentials. while servants beat him with knotted towels. p. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. . The less admirable experts. the limits of your data. the opposing attorney exerts the push of attempted impeachment. likely be explored. In the process of cross-examination. the limits of your conclusions. 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. loyalty. and their testimony is often unconvincing. Again. if appropriately asked by the other side. and the hypothetical situations under which their conclusions would be different. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. and the limits of your testimony. Treater bias Money Entrepreneur SOURCES OF POTENTIAL BIAS Internal sources of potential bias Narcissistic Competitive Transferential “Love me” Gender Research Writing Personal Professional belief Religious/moral Advocacy Traumatic experience External sources of potential bias Attorney pressures Political Extra-forensic relationships “Limelight” Hindsight Confirmatory Source. both pull and push must be resisted. Such candor may well enhance their credibility. experts can be separated into two categories. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. none of this information should be a surprise to your retaining attorney. 261. having become inappropriately enamored of their opinions rather than of the truth.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Generally. The discussions within this chapter should be considered an introductory survey. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. More practically. for example (the most common claim against mental health professionals). this bias means that the outcome of an event appears as though it had been far more foreseeable. and 4) proximate cause. you already know the person is dead. Sometimes forgotten is the fore43 . 3) injury to the patient.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. than was actually so before the event in question occurred. I provide several examples of cases—and some of the nuances unique to each type of case—that illustrate and clarify the spectrum of the expert’s work. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. once you know it has already happened. 2) breach of duty. in this chapter. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. In a suicide malpractice case. Psychiatric Malpractice Cases One of the most critical issues in psychiatric malpractice is the failure to prove all four elements of malpractice (dereliction of a duty directly causing damages): 1) duty of care.

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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

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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,

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

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

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. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. The novice expert should become familiar with useful publications on the subject (7. Finally. although mandatory and irreplaceable. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages.8). a surprising number of individuals avoid treatment. All the interview data must be fitted to the totality of the database. an unrelated accompaniment to the crime. as with all forensic evaluations (6). Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim.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. I find the interview for an emotional injury case to be of primary value. The most valuable dimension of the interview is obtaining previously unrecorded history and the defendant’s own self-reported rationale for his or her actions and own description of the internal mental state at the time of the act. Because of the seriousness of criminal penalties. and so on. 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. malingering is especially common and problematic in this assessment. for example. some on . the interview in a criminal responsibility case has the least power of all the data collected. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. the cause of the crime. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. the result of the crime. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. an injury from which he recovered rapidly without lasting effect. a plaintiff drank from a chemically contaminated bottle and burned his mouth. In one case. 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.

SECOND EDITION their own accord and some when given this advice by their attorneys. For example. an answer such as “What is the point? There is no hope for me!” is more problematic (perhaps flowing from a depression) and suggestive of a need for some intervention before the examinee undertakes mitigation. and startle responses. may be relevant. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. Such a search can be embarrassing and humiliating to anyone. Not only might these provide a context for the injuries claimed. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. “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. with intrusive flashback memories. 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. He claimed to have full-fledged PTSD. too. Next to the small table where we were sitting. especially idiosyncratic history. only to find that the goods are legitimately accompanied by a receipt. 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.. in regard to which the defendants must “take the plaintiffs as they find them”). This history may represent the plaintiff ’s “thin skull” (i. A question you should ask your interviewee is. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. but they may also be relevant to assessing damages or preexisting conditions. 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. I . preexisting vulnerability. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. The response “My attorney told me not to” conveys its own obvious message. The shopper then may sue the store for harassment and consequent emotional harms. as a result of the mugging. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security.e. History. avoidance.50 THE PSYCHIATRIST AS EXPERT WITNESS. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. however. The interview took place in his basement recreation room. Finally. I had to interview him in his home because he claimed to be phobically homebound. In this situation.

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

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

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

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

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

1993 . Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Viglion DJ. DC. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. DC. Bull Am Acad Psychiatry Law 20:409–418. American Psychiatric Press. Legal Studies Forum 9:41–53. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. 2005 Simon RI.” J Am Acad Psychiatry Law 35:112–117. SECOND EDITION Gothard S. psychiatry and the law. 2000 10. Law and Human Behavior 19:493– 505. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. Gutheil TG: The problem of evasive testimony: the expert “waffle. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. J Am Acad Psychiatry Law 34:215–223. et al: Detection of malingering in competency to stand trial evaluations. American Psychiatric Press. 1995 9. Psychiatric Services 50:767–773. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. J Psychiatry Law 28:5–18. 2nd Edition. 1987 11. Washington. insanity. 1992 Gutheil TG: A confusion of tongues: competence. Psychiatry 1:26–28. Psychiatr Clin North Am 17:439–446. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11.56 8. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. Bull Am Acad Psychiatry Law 21:23–36. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Meloy JR. THE PSYCHIATRIST AS EXPERT WITNESS. Washington. 2004 Knoll J. 1999 Gutheil TG: Fundamentals of medical record documentation.

CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. Under some circumstances. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. Note that some jurisdictions practice “trial by ambush” without expert discovery. 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. 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. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. preparing for what to expect from the various witnesses and documents. From the viewpoint of the expert. Attorneys probe and define the limits of their cases. the attorney will likely write the actual prose of the 57 . In both cases. there is the period known as discovery. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On cross-examination. Even more distressing. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. and all such details. the floor of the courthouse on which the courtroom is located. Clarify in your own mind how you plan to deal with questions about your fees. your publications (especially those relevant to this case). and what the emotional climate of the courtroom is. Pitfalls. the relevant literature. Insist on this conference if the attorney is equivocal or resistant to the idea. the location of the trial. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. Build in contingency plans for the possibility that the trial extends into the next day at least. 4. and the expected cross-examination. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. If you have a disability.74 THE PSYCHIATRIST AS EXPERT WITNESS. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. 7. The pretrial conference is probably one of the most important stages of preparation for trial. Practice. location of restrooms. You should rehearse ways of expressing information to the jury. parking arrangements. Define the limits of your testimony. Presentation. Review the weaknesses in your opinion. Clarify and confirm your travel arrangements. You also need to hear how the trial is going. you need to know through choice and practice how you will convey your opinion to the jury. what the judge is like. and your past experiences. Confirm travel arrangements and other details. and the data relevant to the other side of the case. the contradictory evidence. Consider taking a taxicab to local courts to avoid parking hassles. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. . It is not enough to know the database. Pretrial conference. what previous testimony has been given. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). You at least need to hear the questions that the attorney plans to ask you and to think about your answers. the unknown issues. practice sketching any visual aids you will need for the courtroom blackboard. Most of these matters are best handled on direct examination where some measure of control can be exercised. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. 3. 6. 5. 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. and select useful examples from your experience to make central points.

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

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

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

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

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

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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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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supplied for consideration. The main points about the form are the use of basic language. 121 .Appendix 1 Consent Form for Forensic Examination AFTER PROLONGED ambivalence about use of a consent form I have begun to use the form on the following pages. and the examinee’s attorney’s attestation that the examinee understands the form (i.e. clarification that the forensic examination is not the practice of medicine. I read it or have the examinee read it at the start of the interview and answer questions.. is likely to be competent to consent to the interview).

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

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

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

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

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

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

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

Strasburger. Nor shall such failure relieve your obligation to have on deposit. messenger services. Diplomate. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. court order. prior to my testimony. If the foregoing fee basis meets with your approval. expert or otherwise. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. no refund of the retainer deposit will be made. the retainer discussed above. Larry H. Please keep a copy of this letter for your records. Sincerely. photocopying. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. I will send you a monthly statement. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. court rule. as prescribed by statute. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. For depositions and court appearances requiring travel beyond the Boston area I shall be compensated at the rate of $ per calendar day plus all expenses. compensation for my time in giving testimony shall be as follows: I shall be compensated at the rate of $ per half-day (4 hours or any part thereof ) or $ per full day (in excess of 4 hours). All travel shall be by first-class conveyance. M. please so indicate by signing this letter and returning it to me with your check for the retainer. etc.D. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. setting forth the nature of the services rendered since the prior billing.130 THE PSYCHIATRIST AS EXPERT WITNESS. Time spent in preparing for testimony shall be billed at the hourly rate specified above. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. postage. SECOND EDITION rates will apply to portal-to-portal travel time. along with a listing of out-of-pocket expenses. and all travel expenses will be reimbursed. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. including secretarial service. literature research. Any excess over the retainer balance is due upon receipt. long-distance telephone calls. American Board of Psychiatry and Neurology Diplomate.

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

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

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

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

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

There are several . The “seduction” may involve flattery. Of course. disliked by almost all parties in a case as well as the general public. the witnesses are to testify in court only with testimony that they can swear to. the court makes the finding that defines the outcome of the case. retreat to the oath. the “bottom line. and let the chips fall where they may. the whole truth. In addition. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. because variations from these answers at trial will be used actively in attempted impeachment. and the like. and widely misunderstood by many of those. falling below the standard of care in the care rendered in the instant case. governed by legal criteria that vary by jurisdiction. the expert can retreat when in doubt about what is going on or where the inquiry is going.Glossary 137 Insanity The legal concept whereby a person who did an otherwise criminal act is yet nonculpable because of criteria-specific impairments caused by mental illness or organicity. often stereotyped questions put to each side of a civil case by the opposing side to develop answers under oath as a part of discovery. tell the narrow truth. these are prepared jointly by attorney and expert.” In practical terms. “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. One of the most challenging assessments in all of forensic psychiatry.” of the expert’s efforts.” 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. Interrogatories A set of formal. sometimes without even informing. its influence should be resisted by the expert. Opinion The final phase. the insanity evaluation is retrospective. the expert. when confusion sets in. and nothing but the truth. the whole truth is often supplanted by “the admissible truth. experts should review these carefully for accuracy as to their opinions. but without actually retaining. Negligence In a medicolegal context. promises of much future work if the opinion in the present case is favorable. See also “Standard of care. elaborate dinners and entertainments. In a practical sense. Like other sources of bias. the oath is a place of safety to which. The expert offers an opinion derived from the database and training and experience.

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

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

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

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

48–49 involving the insanity defense. 14 Carry-on luggage. 85–86 code language between attorney and expert. 74 Code language between attorney and expert. 28–29 Contingent fees. 47–48 Competence issues. SECOND EDITION Complaint. 121–123 Constraints on time. 107 Brokering a case when unable to handle it personally. 83 Courtrooms. 32. 24.142 THE PSYCHIATRIST AS EXPERT WITNESS. 82 Clothing packing for travel. 65–66 Confidentiality breaches as basis for suit. 18–19. 113–115 trial appearance. 38 Conflict of interest. 69 Concentration at depositions. letters to. 118 Criminal cases capital cases. 77 unpacking at hotel. 66 Concessions at depositions. 30 validity of case. 16. 95 Court reporters. 33 The court. 77 Change of opinion. 97 Case review. 4. or data. See Attorneys Countertransference. litigants. 13–14. 59–60. 48–49. 137 report. legal. 82 Child abuse issues. 34 misunderstood by attorney. 14 criminal responsibility cases. 61 trial. 71 Candor. 34 Compound questions at depositions. 81 Communication with opposing attorneys. how to handle in written reports. 73–79. 28 Correction of answers at depositions. 65. See also Video depositions gazing into the lens. 58–59 avoidance by attorney. 33–34 threshold question. 33–34 merit of attorney. 23 Clinical material. review of. 44 nonconfidentiality warnings. 99–100 Consent Form for Forensic Examination. 25 Conflicting stories from parties in case. 116 Coaching. 116–117 metal detectors at. questions about. 33 scheduling. money. 99. 32 Building a practice. 30 Causation. 62. 5. 19 Capital criminal cases. 86 Borderline personality disorder (BPD). 29–40 documents. or experts. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 40 Child custody cases. 108 Browbeating by retaining attorneys. 86–87 Cross-examination. 103–108 Camera. 61. 81 delaying tactics. 85–86 Brokerage organizations for expert witnesses. 113–114 Case name or citation in written report. 77. 83 breaks and recesses during. 82 Breaks and recesses depositions. 64–65 Cough drops or throat lozenges at trial. 17. 39–40 Cellular telephones. 101–102 Crises while testifying at trial. 70–71. xiii. 4 Class action cases. example of outline. 135 . 118 Counsel. 30–32 “nothing to go on” problem. 100 Consultation services. 7–8.

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

always soliciting. 38 “nothing to go on” problem. ethical model. 129–130 standard fee agreement. 115 Flip charts at trial. See Countertransference Forensic practice. 15 remaining neutral. 115–116 Humility factor. sample. 95–96. sample. See also Ethics of attorneys. importance. 16 marketing a forensic practice. 13–14. 18–19 honest advocate model. 61. 36 “False memory” cases. 25 Flashlight. 80 Flying. 15 social relationships with attorneys. 1–3 Experts honesty of. doing none. 115 Feedback. 125–128 travel costs. 28. See Fees. 78 Eating. principles of. 51–52 Hindsight bias. 113 Fitness as expert. 129–130 standard fee agreement. 6. sample. 60 False allegations. 88 Fees. 9 Humor. 15 Honesty. SECOND EDITION Family or friends. 15 loyalty to retaining attorney. See Meals Forensic countertransference. 1 functions. 75 Ethics. 2 Forms detailed fee agreement. 82 Hotels. 15 altering reports. See also Written documentation Forensics. 80 Fabrics. 75–79. 103–108 Forensic reports. sample. 49–51 examples. 24 Entrance of judge. 125–128 Gestures at trial. deposition and trial. xiii–xiv evidence in. 112 Failure of retaining attorney to pay fee. 44 . 50–51 interviews. 61. Reimbursement for travel Expert witnesses. 28 Fairness. 49–50 Employment relationship. 28. 32 Good writing. 26–28 detailed fee agreement. 6 High-profile cases. litigants. 33 oaths. staying with. 96 Harm. 37 Eye contact at trial. 13–21. scholars in. 52–55 History of expert. See also Hired guns definition. 25 Honest advocate. 14–15 Etiquette at trial. See Meals Emotional injury cases. 87–88 Evidence. 28. 16 turndown rates. 47–48 cross-examination. 25 External consistency of story. See Air travel Food. of sexual misconduct. 78 Global requests. 67 marketing. 113 contact with opposing attorneys. 5. 107 new facts at trial. 100–101 billing. 30–32 of experts. for travel. 44. or experts. 82 nonconfidentiality warnings. 38. 62 Hired guns. principles of. 67 Expenses. 17 special expertise of. 136 spotting the other side’s. See also Conflict of interest advocate for truth model. 28. 7–8.144 THE PSYCHIATRIST AS EXPERT WITNESS. 8 Hearsay. 112–113. issuing.

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

47–48 plaintiff interviews. 117 Metal detectors at courthouses. writing for. 36 Politeness. 4–5. 91–93 Precautions. 34–35 Patience. 5. 44 Melatonin. 26–28 Networking. 15 Objections depositions. 97 Preparation for trial. 82. 25 bias. 40. goals of. 88 The Packing Book (Gilford). 47 during interviews. 16. 115 Preexisting illnesses or conditions. 77 Personal injury cases. 91–92 Privilege. 25–26 Priorities. 45. 112 Packing for travel. while traveling. 39 vulnerability of plaintiff (“thin skull”). questions of. 80 Misunderstanding of clinical issues by attorney. effect of. 77 keeping notes. 74 Prior testimony by expert. 66. 26–28 fitness as expert. 117 Pretrial conferences. 65 work product privilege. 14. 64 Peer review for testimony. 82 interrogatories. 24 decision to take case. 54. 30 Occasions. See Trial preparation Prescription medications. 68 Pauses before answering cross-examination. 74. use of. 29 fees. 17–18. 137 depositions. 65. 24–25 timing and scheduling. 13–14. 113–115 Parties in case case name or citation in written report. 35. See also Web sites storage of past depositions. 100–101 Posttraumatic stress disorder. 58–60 Opposing expert witnesses. 52–55 contact with. 70 Medication issues as basis for suit. See Emotional injury cases Physicians’ Desk Reference (PDR). 82–83 Microphone use at trial. 16–18 clinical and forensic issues. unfailing. 49–51 Morality. 71 Oaths. 47–48 Outcome of case. See also Confidentiality deposition. 26 Opposing attorney. 64 interrogatories. See Parties in case Plausibility of case. 24–29 background of expert. 8 Pens and pencils at trial. 138. 114. 67 National Forensic Center. 137 Negotiations with retaining attorney. consulting with retaining attorney at. 15. not compromising. 38 Nonsexual seduction. 25 initial contact. 57–58 Objectivity. SECOND EDITION Online. 118 Metaphors and analogies. 106 Negligence. 82 Mitigation of damages. 57–58 trial. 97 . 69 Plaintiff. 86 Nonconfidentiality warnings. See also Marketing a forensic practice New facts at trial. 137 Note taking importance of. 24 request of retaining attorney.146 THE PSYCHIATRIST AS EXPERT WITNESS. 97 communication with opposing party. 104. 85 depositions. 49–51 Practice pointers. 50 Preliminary reports. 81 Postreport negotiations.

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

Honesty Turning down cases. 112 Traveling. 86 pens and pencils. 80 language/word choice. 77 pointers. 116–117 microphone use. 82. 64 for interviews. 8–9 Treatises. 79–80 timing and scheduling tips. 73–74 language/word choice. 74 rehearsing. 69–70 Treatment recommendations. 74 Truth telling. 80 humor. 74 presentation. 86. 74. 81–82 priority. versus expert. 117–118 Trial preparation. 76–77. or flip chart. 25–26 roles of expert. effect on standard of care. 44 Throat lozenges or cough drops at trial. 87 . blackboard. 8. 111–118 billing. questions about. 80 new facts coming to light. 118 crises while testifying. See also Ethics. 79–80. SECOND EDITION cough drops or throat lozenges. 78–80 Telephones calls during trial breaks. 118 Time creating timelines. 77 what to bring into court. 51 evaluating. 85. importance of. 77. 48–49 emotional injury cases. effect of. 13. 86 cellular telephones. 74 Teaching role. 39–40 Travel books. 77 returning calls. See Crossexamination demeanor at. 44. 87–88 dress and appearance. 113 Travel service. See Meals packing. 115–116 meals. 139 Taxicabs. 80 pretrial conferences. 117–118 testimony. 26–28 travel time. 37–38 Trial. 86–87 cross-examination. 77 etiquette at. 75–76 supplies. 60. 73–74 practice sessions. 76–77 water. 74 pitfalls. 82–83 lunch during. 77. See also Cross-examination prior testimony by expert. 74. 91–92 seating at. 49–51 Tarasoff-type cases. bringing into. marker board. 14–15. 77–79 departure from courtroom. 85–86 conclusion of questioning. 75–79. 74 using database during. 115 lodgings. 77 courtroom. 113 examinees. 28–29 Third-party cases. 112 unpacking. 74 planning. 87–88 eye contact. 34 for depositions. 116 Testimony at trial. 112 Travel expenses. 92. 55. 117 time planning. 35 keeping track of. 43–56 criminal responsibility cases. 78 illustrations. 108 wake-up calls. 112–113 travel information. 112 Traumas. 35 flying. 116 Treater. 139 Type of practice expert has. 61. 19.148 THE PSYCHIATRIST AS EXPERT WITNESS. 82. 77 breaks and recesses during. 80. 45–46 Types of cases. 112–115 sleeping. 73–90 beepers/cellular telephones.

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

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