Expert Witness | Psychiatry | Expert

The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

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

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

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Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

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

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The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

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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

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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

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

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

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

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

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

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

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

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

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

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

The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work.. — Voltaire The investigative efforts previously implied permit the expert to offer testimony at the requisite standard of proof called reasonable medical certainty (sometimes described as reasonable psychiatric certainty. and leads physicians of all specialties observing. As a general rule. Other contextual clues about the hired gun are overly candid advertising in legal media (e. For most of us. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). ask about the local variant. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose.Introduction: What Makes an Expert? 7 for all important facts. makes forensic psychiatrists unpopular with their clinical colleagues. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. Although some will cry that there are exceptions. All psychiatrists. 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. but certainty is absurd. 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. including forensic psychiatrists. Note that there may be some jurisdictional variation on this point. reasonable medical probability. sell time. regardless of its clinical or empirical validity. Rather. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular.g. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. 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. or even reasonable psychological certainty). 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. high-profile insanity cases. for example. Reasonable Medical Certainty Doubt is not a very pleasant condition.

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

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

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

J Am Acad Psychiatry Law 30:10–13. Int J Law Psychiatry 13:281–307. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. 2004 Slovenko R: On the therapist serving as a witness. NJ. Psychiatric Services 52:1526–1527. in The Psychiatrist in the Courtroom. American Psychiatric Press. 2001 Simon RI. Washington. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Springer Science+Business Media. DC. Analytic Press. 2001 Quen JM: The psychiatrist as expert witness. Hillsdale. New York. Behavioral Sciences and the Law 7:145–180. DC. pp 233–248 Rogers R. Edited by Quen JM. 2005 Simon RI: Psychiatry and Law for Clinicians. 1992 Dietz PE: The forensic psychiatrist of the future. 1990 Gutheil TG. 3rd Edition. Gold LH: Textbook of Forensic Psychiatry. 1989 . Washington. Bull Am Acad Psychiatry Law 15:217–227. 1994. American Psychiatric Press. 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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[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.. S-3) THE EXPERT faces many challenges in forensic work.” They may forget that this encounter is not therapy. examinees being interviewed by a psychiatrist. In this chapter. and its results may harm. particularly an empathically attuned one. p. the ethical expert be13 ..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. rather than help. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons.” (1. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. tend to drift unconsciously into a “therapeutic mode.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. First. their ultimate goals in the legal process. It is a control easily within the reach of every witness—the lever marked “truth. To prevent such inadvertent abuse or exploitation of the examinee.

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

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

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

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

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

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

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

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

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

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

Your Fitness as an Expert Should you. In general. 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. and so on. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. “Look. personally.First Principles 25 chiatrist actually has some knowledge about. that is. 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. This example is fairly obvious. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim.g. 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. board certification. Note that your special expertise should exist against a backdrop of your general competence in the field. but subtler versions of personal resonance with a case are not uncommon. For example. as indicated by publication. 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. if your aged mother has just died in a nursing home. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. have you been the defendant in a malpractice suit. The attorney can then take or leave this arrangement. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. These issues go beyond mere conflict of interest. however baseless? Are you now being investigated by the board of registration for some allegation. 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. I don’t know a great deal about this specific subject. if you cannot or should not take the case. the hospital. which is usually (but not always) clear-cut. 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.. experience. but I am willing to become familiar with the issue”). Therefore. the attorney will not have revealed confidential information (the names) to you. such cases should be reality-tested for the attorney.

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

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

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

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

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

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

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

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

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

however. and suggestions from the attorney present may contaminate the process. that side’s attorney may refuse to allow you to do so. to have the interview audiotaped or videotaped. it is certainly beneficial for teaching and for self-review for quality assurance. it might be effective and appropriate to examine him or her first. presumably. 2. For a number of circumstances. However. as a rule. “You wouldn’t let me!. the absence of this datum must be factored into the opinion. when examining for the opposite side of a case. Not uncommonly. 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. unobtrusive note taking probably represents the optimum compromise among choices. Note that when you are retained by the defense and wish to examine the plaintiff. Inappropriate interruptions and objections. Examinees commonly play up to the audience or recording device. Verbatim material also can be obtained in this way. The fundamental reasons are as follows: 1. Examinees who must travel to see you should. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. more authentic) responses to your inquiries.” was appropriately disconcerting. an audiotape or videotape of an interview may be constructive. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . For example. then to read the database. be spared this burden. but I strongly recommend opposing their occurrence through your attorney. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. This decision is legitimate but bears consequences. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. 3. although this irritates some examinees more than writing during the interview. based on the belief that such an examination can only hurt the case. for some experts. inhibit free-ranging inquiry. focusing on making a recording. then to examine him or her again to clear up matters raised by the written material. The occasional plaintiff ’s attorney will openly state that he or she never allows an IME (independent medical examination by an expert) of the client-plaintiff. Jurisdictional rules may make one or all of these procedures mandatory. exaggerating symptoms. the expert will receive a request to have an attorney or paralegal present during the interview or.” My immediate response. If you are unable to prevent the above intrusions. alternatively.First Principles 35 If the witness lives locally. cuing. in one case.

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

such as sexual misconduct. Finally. about the historic English crime. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. the following dialogue occurs between the trial judge and Edward Pierce. The phone records aided in challenging the claim by providing a time stamp. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component.First Principles 37 “Alibi” Issues or External Consistency Is there material from somewhere else that challenges or refutes the claim? Does the defendant claim to have been totally psychotic and out of control. She had apparently established these referents by calling the office and receiving no answer. The notion of the alternative scenario can be essential for assessing civil claims. even if asked to do so or tempted by medical ne- . he had made several outgoing calls during the time period of the alleged molestation. how might it have occurred alternatively? Is there another way of explaining what happened. as well as disability evaluations and similar tasks. or for some criminal claims of insanity. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. or statements of others? Was either the plaintiff or the defendant out of town on a reasonable alibi at a critical point when negligence was claimed? For example. 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. If the situation did not occur in the manner claimed. in a sexual misconduct claim later proven groundless. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. remember not to offer any treatment or treatment recommendations to your examinee. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. 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 outcome. or the alleged damages? For example. 1978). a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. MGM/UA. however. she assumed the doctor was not present and could not refute her claim. observations.

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

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

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

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

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

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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,

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

remember to consider diminished capacity as an intermediate condition. are the most significant. in my (and almost everyone’s) view. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. Is this defendant someone who seemed to show . For example. Criminal Responsibility Cases In cases of criminal responsibility. To read critically.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. data gathered at the time of the alleged act. and records of any treating clinicians from points close in time to the alleged acts. it is inappropriate to call or write directly to the opposing attorney. and so on. a case wherein the defendant had or has a major. In those jurisdictions where the issue exists. what do you think about this amazing case. exert the effort to stand back from the process. you may confront the classical poles of the issue. the more helpful it would be in forming your opinion. The truly challenging case lies between these extremes. The appropriate response is. weighing the logic of the deponent’s responses. On occasion. your attorney’s confidential trial strategy. friendly approach into letting your guard down and discoursing freely on your opinions. Because of the flow of material and its often fascinating content. Doctor. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. 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. litigant. is historical material. These would include witness and victim reports. Out of the entire panoply of available material on a criminal responsibility case. you are lulled by this informal. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. namely. you can be drawn into the prose by the unfolding drama therein recorded. Of second-rank importance.48 THE PSYCHIATRIST AS EXPERT WITNESS. “I think you should talk to the retaining attorney. statements of the arresting officers. while reading a deposition. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. or expert. eh?” Presumably. I have had opposing attorneys telephone me directly on a “fishing expedition” to see what they could get me to disclose about a case without the trouble and expense of scheduling a deposition. These unethical conversations usually have an informal tone: “So. SECOND EDITION Although the more information gathered. but still relevant.

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

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

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

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

prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. “If the care had been adequate.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Some experts believe that physicians are never wrong and always justify whatever the physicians do. For example. Indeed. The real issue is: does the standard of care require more. the likely explanation is that the treaterexpert made it up to suit his views of this case. the counter to such claims often begins with the phrase “Well.” This testimony is a classic hired gun claim. but no one lives real life like that. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. I personally have never heard of or read that standard anywhere. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11).. 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. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. The following is a real-life sample: Examining attorney: Does the standard of care require restraint of this patient? Hired gun witness: When you have a patient who is this out of control and depressed. in the real world. 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. Anyone always could have done more. one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve..” 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. it’s a very serious situation. “They (the defendants) should have done more. . Another variation on this theme is. but malpractice litigation hinges on what is required by the standard of care. An even more malignant twist is the made-up or artificial standard.

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

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

American Psychiatric Press. 1992 Gutheil TG: A confusion of tongues: competence. psychiatry and the law. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. DC. 1995 9. Psychiatry 1:26–28. DC. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. American Psychiatric Press. 2005 Simon RI. Psychiatr Clin North Am 17:439–446. 1999 Gutheil TG: Fundamentals of medical record documentation. insanity. Legal Studies Forum 9:41–53.” J Am Acad Psychiatry Law 35:112–117. et al: Detection of malingering in competency to stand trial evaluations. J Psychiatry Law 28:5–18. Meloy JR. Washington. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. Bull Am Acad Psychiatry Law 20:409–418. 2000 10. Washington. Viglion DJ. Bull Am Acad Psychiatry Law 21:23–36. 2004 Knoll J. 2nd Edition. SECOND EDITION Gothard S. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. THE PSYCHIATRIST AS EXPERT WITNESS. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Gutheil TG: The problem of evasive testimony: the expert “waffle. 1993 . Psychiatric Services 50:767–773. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. J Am Acad Psychiatry Law 34:215–223. Law and Human Behavior 19:493– 505.56 8. 1987 11.

whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. Attorneys probe and define the limits of their cases. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions.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. 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. the attorney will likely write the actual prose of the 57 . From the viewpoint of the expert. there is the period known as discovery. In both cases. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. 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. Under some circumstances. if any. preparing for what to expect from the various witnesses and documents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

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

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

At such moments. to be sure you are clear about the question. and think seriously about whether yes or no will represent 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. Scholars liken agreeing to this either-or approach to signing a blank check. if not. to consider your answer carefully. a question will require more time for prolonged thought or searching of your memory. state that you cannot answer yes or no. and a mere yes or no may fail to convey the “whole truth. Always ask to see the context if you do not immediately and completely recall it. Remember that you did not write the article or make the statement during a lecture with this particular case in mind.” Listen with intense attention to the question. the attorney may quote something that you wrote or lectured on. Breaks During breaks that occur in the middle of cross-examination. If either will do so. say it. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination.” and do so. 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. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. some sources suggest answering at the outset. some attorneys advise not discussing your testimony. At times. or have you dozed off? It is best to state. Doctor.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no. consequently.” This response may be foreclosed by the judge directing you to answer anyway. Quotes On cross-examination. a judge may even decide to declare a recess: “While you are thinking. Practically. this type of questioning means that you have only three answers available: “yes.” The break gives you ample time to think. we are going to take our midmorning break right now.” “no. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. You took an oath to tell the whole truth. “I’m going to take a moment to think about that. We’ll reconvene in 15 minutes. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- .” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). and to allow your attorney to object. The key word is truthfully. if needed.

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

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

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

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

M. Because your reports can be done at any time of the day or night. with a deposition for a third case. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. Large numbers of people are involved. theoretically. with suitable preparation of the jury.” in this volume). and serious matters hang in the balance. The tension here is that some courts. testify last in order to summarize) may be willing to move you earlier in the case and somewhat restructure your direct examination to compensate for this maneuver. You must do the best you can with what you’ve got. of course. 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. Because your attorney has the most interest in your presence. court dockets are crowded and leave little flexibility. but during the very week that you have scheduled four weddings and a funeral. Travel glitches (discussed in Chapter 10. “The Expert on the Road. SECOND EDITION for months without any forensic activity whatsoever.e.. cancellation) is as follows. Trials take first priority.. requiring two parties to match schedules. I know you have a busy schedule. negotiation. the hierarchy of urgency and therefore attempted postponement (or at worst. You’ll probably be cross-examined for 1. he or she will be exerting the greatest efforts to make it all work out. but things happen. attorneys. for example: “Doctor. maybe 2.92 THE PSYCHIATRIST AS EXPERT WITNESS. so let’s put you on first at 9:00 A .” Smile politely when you hear these words but make expansive plans. add another layer of challenge. This type of schedule is close to reality. An attorney who planned to have you “bat cleanup” (i. The second priority is depositions. a forensic interview. two trials in different states will be called simultaneously. You may have a little room to maneuver in terms of the order in which you testify. which also require several people to synchronize their schedules. tops. and accommodating. In extreme circumstances. hours. others are not. As a rule of thumb. comes before a report. and telephone calls to resolve them. and other-side attorneys are reasonable. the other side may be willing to have your testimony inserted into their side of the case. the trial should take precedence. flexible. You’ll be out of there by lunchtime. sharp. If a trial and a deposition are scheduled for the same time. You can count on your eyeballs the number of times this clockwork model actu- . The last two priorities are interview and report.

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

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

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

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

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

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

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

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

22. Wiley. 24. THE PSYCHIATRIST AS EXPERT WITNESS. Falmouth. et al (eds): Consultation. pp 511–528 . in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. Guilford Press. SEAK. Hess AK. Am J Psychiatry 143:164–169. in Handbook of Forensic Psychology. 1986 Melton GB. Petrilla J. 20. Poythress NG. 25. report writing and expert testimony. pp 577–605 Weiner IB: Writing forensic reports. MA. 3rd Edition. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. New York. 19. New York. 1987.102 18. 23. Edited by Weiner IB. 2007. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. 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. 21.

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

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

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

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

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

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

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

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D. this chapter will be too obvious and not relevant to your needs. As always. 111 . 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. I address some tips and strategies for the expert who is inexperienced in traveling to cases. William Reid. IF YOU TAKE ONLY CASES in your immediate neighborhood (such as might happen when you work for a court clinic) or if you are already a seasoned traveler... M. examinations. Simon. M.C H A P T E R 10 The Expert on the Road: Some Travel Tips for Testifying Away Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy. and his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter. mockery. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. or interviews. seasoned travelers may skip the chapter entirely. and opprobrium. In this chapter.D. The author is indebted to Robert I.

Consult with significant others for their opinions if needed. cars. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. and is in good repair. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. on rare occasion. 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. stay overnight in a hotel or similar setting. and general information can be obtained from books. 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. These services can book flights. Running shoes also allow you to sprint through airports to . the process takes even longer. and hotels directly and save you much time and stress on the telephone or online. matches. For cases that involve land travel. looks professional. the Internet. Opt for crushproof fabrics and materials whenever possible. and return that day or the following one. especially if you have not worn it for a while. Some experts like to subscribe to an official airline guide for creative problem solving if they are marooned in distant locations because of altered or canceled flights. Try on everything before you pack it. and one pair of shoes. and your colleagues. SECOND EDITION The basic situation I describe is one in which you travel by airplane to the city where the trial (or deposition or interview) is being held. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance.112 THE PSYCHIATRIST AS EXPERT WITNESS. I recommend The Packing Book (1) as an excellent resource if you always arrive at your travel destination with the wrong clothes in serious disarray and find you have left out several important items. the emerging online travel services (Expedia and the like) may prove useful. Another useful reference is Jet Smart (2). 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. testify or interview the next day. Some General Recommendations Travel Information Travel guides are available everywhere. travel agents. Still other guides are provided in the suggested readings at the end of this chapter. Alternatively. especially in flight. to ensure that it still fits.

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

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

I carry a compact “smoke hood. Emergency Items Neurotic fears can certainly flower when you travel. Drink water steadily to avoid travel dehydration. fly out. First.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. you are undistracted by social obligations and family strife or background noise. call the airline early to check on facilities. in theory. experienced travelers can skip this discussion. Almost all modern hotels in the United States have smoke detectors. Secrets of Staying If you are unfamiliar with the expert art of “fly in. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. for you to get out of the toxic smoke and gases to safety. 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. procedures. or order special low-fat meals. on very dry flights. it is more professional to meet with your attorney the night before the . remember to carry light extension cords and voltage adapters. This item is available through a number of catalogs. often hooked to a travel alarm clock. try breathing through a moistened towel for short periods. The traveling expert is sometimes torn between staying at a cold. testify. You breathe through a filter that lasts long enough. fails). I recommend the hotel or motel for several reasons. and special arrangements. but you can buy your own compact version. institutional hotel or motel and cadging free lodging with friends or relatives in the area. Besides a small flashlight.” this discussion will be helpful. but some precautions seem sensible. although occasionally. Seriously consider avoiding airline food entirely. because someone else is paying your way to the location. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. If you have a disability. Second. The latter appears at first glance both socially desirable and economical.

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

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

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

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

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The main points about the form are the use of basic language.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. 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. 121 . supplied for consideration.. and the examinee’s attorney’s attestation that the examinee understands the form (i.e. is likely to be competent to consent to the interview).

2. 4. During this interview or interviews I will be asked a number of questions about myself. or have no effect on my case that I can see. Dr. if needed. Dr. I understand that I can take breaks if I want to at any time during Dr. the person who has signed at the bottom of this letter. Because I am being interviewed in a legal matter. but if I refuse to give an answer or some answers. the following: 1.122 THE PSYCHIATRIST AS EXPERT WITNESS. Gutheil’s interview or interviews. . I also understand that I am not his patient in connection with or because of this interview or interviews. M. Gutheil keep secret what I tell him. I understand and agree to additional repeat. most of which will be very personal. The examination will be one or more personal interviews. I agree to be interviewed. that he is not acting as my physician or psychiatrist in doing this interview or interviews. and I understand that no one can know which one it will be in advance. Gutheil’s written report or out-loud statements for court may help my case. I understand and agree that Dr. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. Gutheil. Gutheil will not give me any medical or psychiatric treatment. Dr. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. agree to have an examination by Dr. Gutheil will explain or has explained to me and I understand that Dr. I understand that Dr. in connection with my legal case. Gutheil may write that down for the record. Dr. Gutheil. Gutheil will explain or has explained to me. Dr. This means that Dr.D. “follow-up. and I understand. or out loud in open court in a trial.” or “update” interviews of me by Dr. and I understand they will be part of the same examination and will follow all the above rules. nor will he suggest any treatments to me or for me. in spoken depositions (where lawyers ask him questions). Gutheil”) I. Gutheil’s questions. I understand and agree that Dr. however. . 3. SECOND EDITION Consent for Forensic Examination by Thomas G. hurt my case. Gutheil is a physician and a psychiatrist. Thomas Gutheil. 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. I agree to give up my rights to have Dr. I understand. (“Dr. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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