The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

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

3

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

4

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

5

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

6

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

7

Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

8

Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

9

Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

10 The Expert on the Road: Some Travel Tips

for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

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

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

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

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

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

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

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

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

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

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

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

Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. 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. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9.8 THE PSYCHIATRIST AS EXPERT WITNESS. First. SECOND EDITION finding work. and you maintain your ethical compass direction. 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. 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).” in this volume). and ethical incompatibilities with serving as your patient’s expert. Often no absolute standard exists by which to measure opinion testimony. (By the way. case materials. there are significant clinical. summarized as follows (for more extensive discussion of this point. Thus. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . “Developing and Marketing a Forensic Practice. although the clinician is obligated to place the welfare of the patient above other considerations. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. you avoid temptation to skew your opinion. see reference 5 and the appendix to reference 3). The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. 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. reasoning. legal. because these provide a base of financial stability that enables you to turn down cases. If a clearly meritless case is offered to you for review. For various reasons (5–7). it is an excellent way to benefit from the teaching of colleagues and to share ideas. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. and corroborating data.

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

Bull Am Acad Psychiatry Law 20:153–162. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 2007 Barsky AE. 1998 Gutheil TG. 2005 2. Lippincott. Depositions. August 2. Expert’s Quarterly (Winter): 2. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. J Am Acad Psychiatry Law 33:55–58.10 THE PSYCHIATRIST AS EXPERT WITNESS. 2003 Strasburger LH. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Williams & Wilkins (Wolters Kluwer). Gutheil TG. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Williams & Wilkins. 2008 . New York. American Psychiatric Press. Guilford Press. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Hauser MJ. MD. Baltimore. Kane AW: Psychological Experts in Divorce. 3. Harv Rev Psychiatry1:4–5. 1997 Gutheil TG. Gould JW: Clinicians in Court: A Guide to Subpoenas. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Am J Psychiatry 154:448–456. Lewis Publishers.org/guidance/ethical_ guidance/expert_witness_guidance. J Am Acad Psychiatry Law 34:14–21. 6. FL. Accessed August 5. et al: The “whole truth” vs. Baltimore. Testifying and Everything Else You Need to Know. Lippincott. “the admissible truth”: an ethics dilemma for expert witnesses. 7. Wiley. Boca Raton. 2008. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 1992 Appelbaum PS. 4th Edition. 8. 2002 Bronstein DA: Law for the Expert Witness. New York. MD. 1997 Gutheil TG. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. White MS. Personal Injury and Other Civil Actions.asp. DC. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Available at: http://www. Washington. J Am Acad Psychiatry Law 31:422–427. J Am Acad Psychiatry Law 25:233–247.gmc-uk. Suggested Readings Ackerman MJ. 2006 Catto G: Acting as an expert witness. 4. British Medical Journal 337 (#7664). Simon RI: Narcissistic dimensions of expert witness practice. SECOND EDITION References 1. 5.

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

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

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

speculate about. all of which you should turn down. An author described the special sensitivity to what one can swear to in this way: You are asked. This model is sometimes called the advocate for truth model. The second model holds that accepting the reality of the adversarial system is simply part of being an expert because that is the arena in which you work. This model has been called the honest advocate model. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. inpatient care. Although these referrals are not strictly turndowns. you could receive a number of good cases. guess. only over those you elect to accept. for example. for a particular case outcome). Consequently.” Once under oath. 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. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold.” Your correct answer would be. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. and so on. you take nothing for granted. all of which you might accept. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. “White. that position is always acceptable.” . “White on this side. Consequently. that is. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. One model holds that once the oath is taken. “What color is that house over there?” The novice answers. and 2) you answer cross-examination truthfully (see the following discussion). 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. or a number of invalid or meritless cases. say. In forensic practice. they do represent cases in which you have elected not to participate. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. the only touchstone is absolute truth as you know it or understand it.The Expert’s Ethical Universe 15 Note also that you may be in a position to refer cases to colleagues who are known to you as having perspectives different from your own on. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. Partisan pressures from the adversary are put aside. Nevertheless.

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

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

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

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

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

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

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

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

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

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

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

Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. defaulted on payment) by their first attorney. you can calmly state them without guilt. shame. but in my experience. they referred me to small claims court. or other conflict. you are charging for time regardless of the outcome of the case. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. respectively. of course. Urge your attorney to bring up your fees on direct examination to get it out of the way. Then. 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. You sell only time. It should. 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. don’t take on the case. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). the organization in charge of attorneys’ ethical issues. Perry Mason. among others. basically consultative services. the good folks on L. or for reading a one-paragraph letter. I took my first major “stiffer” to court eventually and received some of my money. are free to employ contingent fees. it is unfair to your attorney. How much work or time should you devote to the case? This depends on your schedule.28 THE PSYCHIATRIST AS EXPERT WITNESS. Keep your vacations in mind. when asked about your fees on the stand. Owen Marshall. I reported him to the Massachusetts Board of Bar Overseers. for instance. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. but your consultation must be free of investment in any form in the outcome of the case. in addition. it comes as a surprise that it is not an ethical violation for an attorney to stiff his or her expert for a legitimate fee if there is nothing in writing (and in some cases. SECOND EDITION a deposition. If you don’t have enough time. Ethically speaking. You give only testimony.A. when you design your own fee agreement.. failure to pay is reality. To novice experts. some of which never . your fee should never be contingent. The attorneys. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. Refuse any other arrangement. ideally. That august body opined that this was not an ethical problem but a business issue or a contract issue.e. 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. even if there is).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of

Types of Typical Cases

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course, it is quite a different matter if the on-site treater’s conclusions are internally inconsistent with his or her own contemporaneous observations or are egregious distortions of the diagnostic or therapeutic process. But absent such extremes, great primacy should be awarded to subjective, nondocumented material that is observed and enters into the decision making by the on-site personnel at the relevant time. It is therefore important to suspend your judgment while reading a case until the whole has been reviewed. Each side can be surprisingly convincing when assessed in a vacuum (such as the complaint or interview alone) so that premature closure of your opinion is a great hazard of the trade. Resist this temptation, and flag those claims that need to be checked against other parts of the database.

The Standard of Care
The question of the standard of care is a complex but central issue in malpractice; it is the benchmark against which deviation (i.e., negligence) is measured. Unfortunately, the official standard of care or the wording in which it is couched may vary between jurisdictions. As an expert, you must, of course, familiarize yourself with the relevant local standard and its wording early in your work on the case and apply it to your review of the database. Massachusetts case law, for example, has a rather elaborate definition; the standard of care is that of “the average reasonable practitioner at that time and under the circumstances and taking into account the advances in the field.” By inference, this is a national standard, because advances in the field are professionwide, not regional. Other jurisdictions may have what is called a locality rule, which is a standard drawn from the practice of clinicians in that locality. For example, part of my qualification process in testifying in Durham, North Carolina, which has the locality rule, was to demonstrate the various ways in which I was aware of what clinicians do in Durham. In light of some recent American Psychiatric Association (APA) publications articulating diagnostic and treatment guidelines, how are these guidelines to be construed in relation to standards of care? The average guideline is not itself a standard; rather than describing average actual practice, the guideline often identifies what care ideally should be, that is, best practices. For example, if you write a textbook of psychiatry and law that proposes certain recommendations, those are not the standards of care. Those recommendations are called precatory or preaching; that is, they preach what the best care should be, rather than the required average reasonable care. Those recommendations do not pretend to be the standard of the average reasonable practitioner. All of these citations may be legally considered “evi-

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dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.

Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,

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

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. litigant. Because of the flow of material and its often fascinating content. Of second-rank importance. Criminal Responsibility Cases In cases of criminal responsibility. are the most significant. SECOND EDITION Although the more information gathered. To read critically. The appropriate response is. but still relevant. “I think you should talk to the retaining attorney. statements of the arresting officers. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. you may confront the classical poles of the issue. friendly approach into letting your guard down and discoursing freely on your opinions. a case wherein the defendant had or has a major. you are lulled by this informal. All communications beyond the most mechanistic (giving the opposing attorney’s secretary directions to your office for a deposition) should be channeled through your attorney. These would include witness and victim reports. your attorney’s confidential trial strategy. These unethical conversations usually have an informal tone: “So. exert the effort to stand back from the process. For example. Out of the entire panoply of available material on a criminal responsibility case. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. or expert. data gathered at the time of the alleged act. it is inappropriate to call or write directly to the opposing attorney. On occasion. In those jurisdictions where the issue exists. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. in my (and almost everyone’s) view. what do you think about this amazing case. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. the more helpful it would be in forming your opinion. eh?” Presumably.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. The truly challenging case lies between these extremes. and records of any treating clinicians from points close in time to the alleged acts. Is this defendant someone who seemed to show . or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. remember to consider diminished capacity as an intermediate condition. namely. while reading a deposition. you can be drawn into the prose by the unfolding drama therein recorded. weighing the logic of the deponent’s responses. Doctor. is historical material.48 THE PSYCHIATRIST AS EXPERT WITNESS. and so 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. as with all forensic evaluations (6). a plaintiff drank from a chemically contaminated bottle and burned his mouth. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law.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 interview in a criminal responsibility case has the least power of all the data collected. an unrelated accompaniment to the crime. a surprising number of individuals avoid treatment. malingering is especially common and problematic in this assessment. 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. In one case. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. some on . Because of the seriousness of criminal penalties.8). and so on. for example. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. Finally. an injury from which he recovered rapidly without lasting effect. All the interview data must be fitted to the totality of the database. the result of the crime. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. the cause of the crime. although mandatory and irreplaceable. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. I find the interview for an emotional injury case to be of primary value. The novice expert should become familiar with useful publications on the subject (7. The interview also gives you a chance to assess what might be called a sense of proportion. 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.

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

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

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

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). Anyone always could have done more. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. but malpractice litigation hinges on what is required by the standard of care.” Many “good ideas” theoretically might have contributed to the patient’s care. Another variation on this theme is. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. 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. Waffles are evasive. .. Indeed. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. “They (the defendants) should have done more. the likely explanation is that the treaterexpert made it up to suit his views of this case.. it’s a very serious situation. in the real world. the counter to such claims often begins with the phrase “Well.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.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. An even more malignant twist is the made-up or artificial standard. 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. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. For example. The real issue is: does the standard of care require more. The hired gun often advances a perfectionistic standard as though it were the average. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. Some experts believe that physicians are never wrong and always justify whatever the physicians do. 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. 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.” This testimony is a classic hired gun claim. “If the care had been adequate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

J Am Acad Psychiatry Law 29:313–318. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Defense Counsel Journal 4:174–179. 8. 2006 Gutheil TG. 6th Edition. 2005 Suplee DR. Baltimore. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. South Bend. 2007 Gutheil TG: Reflections on coaching by attorneys. MD. Falmouth. Bull Am Acad Psychiatry Law 10:17–27. 5. Suggested Readings Babitsky S. 1999 Babitsky S. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. 2008 Rice B: Malpractice: how to survive a deposition. Falmouth. SEAK. 1983 Gutheil TG. 39–40. legal fictions. Willliams & Wilkins. Lippincott. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. 3. The Practical Lawyer 39:55–63. J Am Acad Psychiatry Law 31:6–9.72 THE PSYCHIATRIST AS EXPERT WITNESS. MA. Baltimore. 6. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. J Am Acad Psychiatry Law 34:18–22. SECOND EDITION References 1. Current Psychiatry 7: 25–28. WI. SEAK. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 2003 Kaplan HI. Med Econ 82:45–48. Milwaukee. MD. Simon RI. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. Woodruff MS: Deposing experts. 1987 . Gutheil TG. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). The Practical Lawyer 33:69– 78. Mills MJ: Legal conceptualization. MA. 1993 Malone DM. Vols 1 and 2. Child Abuse Negl 17:571–572. Simon RI. 9. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. 2001 Baker TO: Operator’s Manual for a Witness Chair. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. 7. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. IN. 1982 Gutheil TG. 1996 2. 36. Williams & Wilkins. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 4. National Institute for Trial Advocacy. Defense Research Institute.

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

6. the location of the trial. You should rehearse ways of expressing information to the jury. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Presentation. Review the weaknesses in your opinion. On cross-examination. 5. parking arrangements. and all such details. Most of these matters are best handled on direct examination where some measure of control can be exercised. Pretrial conference. the relevant literature. the floor of the courthouse on which the courtroom is located. If you have a disability. You also need to hear how the trial is going. The pretrial conference is probably one of the most important stages of preparation for trial. your publications (especially those relevant to this case). what previous testimony has been given. Confirm travel arrangements and other details. 4. and what the emotional climate of the courtroom is. Practice. the contradictory evidence. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. . It is not enough to know the database. and your past experiences. practice sketching any visual aids you will need for the courtroom blackboard. 7. Clarify and confirm your travel arrangements. and select useful examples from your experience to make central points. Consider taking a taxicab to local courts to avoid parking hassles. 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. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. Build in contingency plans for the possibility that the trial extends into the next day at least. Insist on this conference if the attorney is equivocal or resistant to the idea. the unknown issues. Define the limits of your testimony. Pitfalls. and the data relevant to the other side of the case. 3.74 THE PSYCHIATRIST AS EXPERT WITNESS. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). You at least need to hear the questions that the attorney plans to ask you and to think about your answers. you need to know through choice and practice how you will convey your opinion to the jury. and the expected cross-examination. what the judge is like. Even more distressing. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. location of restrooms. Clarify in your own mind how you plan to deal with questions about your fees. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court.

particularly experts. 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. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. this kind of potentially valuable hearing and screening device can also be abused (2). Once in the courtroom. Supreme Court case. From the viewpoint of the expert. 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. experts are not allowed to be present in court for the testimony of any other witnesses. that is. named for the plaintiff in an important U. and whether the testimony will fulfill the legally required expert function in the court. When you are allowed to hear the testimony of other witnesses. but if you are the only one standing. The topic requires more extensive discussion (1). you will find it valuable to locate the restrooms and telephones. Doing so is supposed to decrease anxiety and give you a feel for the setting (i.The Expert in Trial 75 The Daubert Challenge In an effort to ensure the validity of expert testimony and its underlying methodology and to prevent “junk science” (unsupported or idiosyncratic theory) from entering into the court’s deliberations. its methodologic reliability. Such a hearing. Wait in the public seats until actually called to the stand. sit down. much valuable information can be gained and the tone of the room determined. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. to be able to articulate the bases and reasoning behind those conclusions. Before going into the courtroom. 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. may occur prior to trial (occasionally. Regrettably. Practical Matters Preparing to Go On Many courts sequester witnesses. where the jury will be and what . in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). rise for the judge’s entrance.. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. and to ensure that recognized approaches to the subject matter are chosen.S. the best approach is to exercise care about the methods used to reach conclusions. which are sometimes in obscure locations in older courthouses.e.

and ensures the accuracy of your recollection by direct verification. essential medical records . in an often extensive chart or deposition. Note again the importance of having and practicing a plan of organization. The downside is the need to remember a vast amount of detail and to recall where. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. having the whole database on the stand permits greater support of your testimony with specific data from the documents. even for experienced experts. because his or her opinion is being given from memory. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. SECOND EDITION the room looks like from the hot seat). The expert appears more confident and knowledgeable about the case. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. My own preference is to strip down what is brought. the attorneys will have it). as are all the substantiating data.. tabs. or your own table of contents devised for more extensive documents.76 THE PSYCHIATRIST AS EXPERT WITNESS. dog-eared pages. a particular citation is. Key documents might include my report and interview notes. and 3) you may become lost in excessive data. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. What to Bring Experts and their retaining attorneys vary in whether they prefer. The expert should determine which of these two approaches is more suitable. while the experts are testifying. Recall that in almost every case. the opposing attorney cannot search through them for something with which to impeach your testimony. if needed. yellow self-stick notes. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. 2) as noted. On the other hand. only a copy of the expert report that is already in evidence or only a curriculum vitae). 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). Note that some anxiety is normal.g. to have on the witness stand the entire stack of documents pertinent to the case or whether they prefer to have nothing on the stand or almost nothing (e. When no documents are before you on the stand. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. Each preference has its pros and cons.

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

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

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

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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

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

the attorney’s competitive strivings with the opposing attorney or firm. First.” are almost always answered yes on the theory that almost anything is possible). such as the previously listed leading questions. If you want to say. Even those attorneys who opt to engage in cross-examination are usually (but. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. “That’s generally true. the attorney’s wish or need to have the client see the attorney doing something. can they not?” • “Another expert might come to a different conclusion. the attorney asks closed questions. and even the attorney’s competitive feelings directed toward the expert. interrogatory.. equivocating hurts you. questions beginning “Is it possible. isn’t that right.84 THE PSYCHIATRIST AS EXPERT WITNESS. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. or alternatively.” . Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. never ask a question to which you do not already know the answer. The tight rein on which you are held may make it difficult to get your opinion out there. 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. not always) aware of two fundamental principles that should guide this activity. SECOND EDITION Most often. or the answer may be obvious from the question (i. or publications.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. however. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. no problem. “Although the present case is a clear exception to that rule. The attorney may know the answer to a particular question from the expert’s report. The second fundamental principle of expert cross-examination is keep the expert on a tight rein.e. but in this instance it is not. The following are some examples of the last (all are leading questions. attorneys do not perform this simple but effective maneuver.. Instead. deposition. the question answers itself ). which may be asked on cross. surprisingly. It is better to say.” the attorney may move on to the next question after you have said.. “that’s generally true” and you may be too flustered to challenge the action. Throw it away.”) or exhibitionism (“Watch me shine!”). what you say is often true in other cases.

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

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

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

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

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

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

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

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

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

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

The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge. It is important to couch your conclusion in the explicit jurisdictionspecific language defined in case law or statute (your lawyer should inform you what this is) and to state it according to the standard of reasonable medical certainty (or its local variant) to render your report material and admissible. or according to some natural. The rationale for placing the conclusion last is that such a structure allows the reader to develop an evolving (and therefore deeper) sense of the expert’s reasoning as it may (or may not) lead to the conclusion. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. logical grouping (e. that.g. all depositions). (or.. no convincing case has been made for the inherent superiority of either approach. in the treatment of (plaintiff ). including interview data) and your total clinical background of training (what you were taught) and expe- . A typical conclusion in a malpractice case. it is my professional opinion. the overall basis is described as both the database (all the material reviewed in the case. attorney. held to a reasonable degree of medical certainty. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . about the disposition. all medical reports.. The remainder of the report is thus treated as optional reading. . Note the wording. for example. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. SECOND EDITION formed and their date and length.98 THE PSYCHIATRIST AS EXPERT WITNESS. or other) is free to stop there and make decisions about future directions in which the process should go. 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. First. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. The documents may be listed alphabetically. chronologically. you are free to choose your favorite. and so on. Although each group has a rationale. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke.

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

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

The Experience Factor This chapter alone cannot prepare you fully for forensic report writing.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. intensity (likely. 16. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 9. 2. and effect of emotional injuries—three common problem areas. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 10. . 14. extremely likely). 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. 15. Resnick’s outline for a typical criminal report. 17. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. 5. but it may get you started. very likely. 3. 6. 13. 4. 11. 12. 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. The Criminal Report: An Example The following is Dr. 8.1 1. 7.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

staying with. 112–113. 38 “nothing to go on” problem. See also Written documentation Forensics. 125–128 Gestures at trial. 30–32 of experts. for travel. 51–52 Hindsight bias. 25 Honest advocate. 17 special expertise of. sample. sample. 24 Entrance of judge. 82 Hotels. sample. 7–8. See Air travel Food. 25 External consistency of story. 80 Fabrics. 1–3 Experts honesty of. 28. 16 turndown rates. See Countertransference Forensic practice. 38. always soliciting. 28 Fairness. 61. ethical model. 60 False allegations. or experts. sample. of sexual misconduct. 113 Fitness as expert. 44. 50–51 interviews. 36 “False memory” cases. 15 Honesty. xiii–xiv evidence in. principles of. 9 Humor. 16 marketing a forensic practice. Reimbursement for travel Expert witnesses. 14–15 Etiquette at trial. 115 Flip charts at trial. 87–88 Evidence. 88 Fees. 44 . 100–101 billing. 47–48 cross-examination. 82 nonconfidentiality warnings. 28. 129–130 standard fee agreement. See also Ethics of attorneys. 6 High-profile cases. 28. 113 contact with opposing attorneys. 75 Ethics. 6. 15 social relationships with attorneys. 61. litigants. 67 Expenses. 18–19 honest advocate model. 26–28 detailed fee agreement. 8 Hearsay. 78 Global requests. 125–128 travel costs. issuing. 32 Good writing. deposition and trial. 112 Failure of retaining attorney to pay fee. doing none. 62 Hired guns. 1 functions. 80 Flying. 115–116 Humility factor. 15 remaining neutral. 13–21. 2 Forms detailed fee agreement. 103–108 Forensic reports. See also Hired guns definition. SECOND EDITION Family or friends. 25 Flashlight. 129–130 standard fee agreement. 28. 37 Eye contact at trial. importance. 95–96. principles of. 96 Harm. See Fees. See also Conflict of interest advocate for truth model. 15 loyalty to retaining attorney. 13–14. 52–55 History of expert. 75–79.144 THE PSYCHIATRIST AS EXPERT WITNESS. 115 Feedback. 49–50 Employment relationship. 15 altering reports. 33 oaths. See Meals Forensic countertransference. 78 Eating. 5. 49–51 examples. 67 marketing. 107 new facts at trial. See Meals Emotional injury cases. 136 spotting the other side’s. scholars in.

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

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

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

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

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

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