The Psychiatrist as Expert Witness
Second Edition

This page intentionally left blank

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

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

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

This page intentionally left blank .

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

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

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

This page intentionally left blank .

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

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

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

This page intentionally left blank .

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

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

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

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

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

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

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

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

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

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

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

This page intentionally left blank .

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

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

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

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

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

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

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

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

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

This page intentionally left blank .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

however. even if asked to do so or tempted by medical ne- . The phone records aided in challenging the claim by providing a time stamp. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. the following dialogue occurs between the trial judge and Edward Pierce. 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. 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. 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. observations. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. or for some criminal claims of insanity. Finally. 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. 1978). or the alleged damages? For example. 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 it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. about the historic English crime. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. Alternative Scenario In the film The Great Train Robbery (Crichton M. MGM/UA. how might it have occurred alternatively? Is there another way of explaining what happened. she assumed the doctor was not present and could not refute her claim.First Principles 37 “Alibi” Issues or External Consistency Is there material from somewhere else that challenges or refutes the claim? Does the defendant claim to have been totally psychotic and out of control. as well as disability evaluations and similar tasks. is the disability due to an actual mental disorder or an avoidance of work for defensive reasons? Is the examinee attempting some sort of retaliation against the defendant for some perceived offense or slight other than that which is claimed? Given the perpetual problem of malingering and baseless claims that are part of the backdrop of every forensic assessment. the outcome. remember not to offer any treatment or treatment recommendations to your examinee. such as sexual misconduct. he had made several outgoing calls during the time period of the alleged molestation.

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

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

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

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

This page intentionally left blank .

Sometimes forgotten is the fore43 . But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. and 4) proximate cause. for example (the most common claim against mental health professionals).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. 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. you already know the person is dead. in this chapter. The discussions within this chapter should be considered an introductory survey. 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. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. this bias means that the outcome of an event appears as though it had been far more foreseeable. Generally. once you know it has already happened. More practically. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. In a suicide malpractice case. 3) injury to the patient.

44

THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

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

Types of Typical Cases

45

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

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

46

THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

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

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

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

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

Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. a surprising number of individuals avoid treatment. Finally. malingering is especially common and problematic in this assessment. and so on. 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. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. All the interview data must be fitted to the totality of the database. an injury from which he recovered rapidly without lasting effect. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim.8). The interview also gives you a chance to assess what might be called a sense of proportion. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. Because of the seriousness of criminal penalties. the result of the crime. as with all forensic evaluations (6). In one case. 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. some on . the interview in a criminal responsibility case has the least power of all the data collected. 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. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. an unrelated accompaniment to the crime. 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.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. although mandatory and irreplaceable. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. a plaintiff drank from a chemically contaminated bottle and burned his mouth. The novice expert should become familiar with useful publications on the subject (7. for example. the cause of the crime.

with intrusive flashback memories. He claimed to have full-fledged PTSD. you again often encounter the previously described problem of factoring out the effects of serial trauma. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. The shopper then may sue the store for harassment and consequent emotional harms. however. especially idiosyncratic history. I had to interview him in his home because he claimed to be phobically homebound. Not only might these provide a context for the injuries claimed. 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. too. History. The interview took place in his basement recreation room. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. SECOND EDITION their own accord and some when given this advice by their attorneys. only to find that the goods are legitimately accompanied by a receipt. Finally.e. This history may represent the plaintiff ’s “thin skull” (i. “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. In this situation. A question you should ask your interviewee is. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. For example. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. Such a search can be embarrassing and humiliating to anyone. but they may also be relevant to assessing damages or preexisting conditions. These “critogenic” (“law-caused”) harms often cloud the picture of the claimant’s actual damages caused by the defendant(s) alone (9) and must be factored out. 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.. I . Next to the small table where we were sitting. may be relevant.50 THE PSYCHIATRIST AS EXPERT WITNESS. The response “My attorney told me not to” conveys its own obvious message. as a result of the mugging. preexisting vulnerability. avoidance. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. and startle responses. in regard to which the defendants must “take the plaintiffs as they find them”). These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. but 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.

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

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

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. The real issue is: does the standard of care require more.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen.. . but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. the counter to such claims often begins with the phrase “Well. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). Waffles are evasive. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. the likely explanation is that the treaterexpert made it up to suit his views of this case. I personally have never heard of or read that standard anywhere. but no one lives real life like that. Another variation on this theme is. “If the care had been adequate. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. For example. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. Indeed. The hired gun often advances a perfectionistic standard as though it were the average. The following is a real-life sample: Examining attorney: Does the standard of care require restraint of this patient? Hired gun witness: When you have a patient who is this out of control and depressed.” This testimony is a classic hired gun claim. Anyone always could have done more.” Many “good ideas” theoretically might have contributed to the patient’s care. in the real world. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. it’s a very serious situation. An even more malignant twist is the made-up or artificial standard. 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. but malpractice litigation hinges on what is required by the standard of care.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner.. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. Some experts believe that physicians are never wrong and always justify whatever the physicians do.

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

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

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

Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. there is the period known as discovery. 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.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. From the viewpoint of the expert. In both cases. if any. 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 attorney will likely write the actual prose of the 57 . Attorneys probe and define the limits of their cases. preparing for what to expect from the various witnesses and documents. Under some circumstances. 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. Note that some jurisdictions practice “trial by ambush” without expert discovery. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

80

THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

Unlike formal, even pedantic deposition language, which is directed to the court reporter and aims at clarity above all to develop a valid transcript, trial language is juror-friendly, basic, and may be more extensive than the austere, brief answers from deposition. Asked an open-ended question (“Can you describe that process?”), answer until the matter is complete; if the jury appears to be losing focus, or if you see the dreaded “eye glaze” sign, wrap up your answer and wait for the next question. Remember that no matter how intensely you may feel about anything, you must scrupulously avoid any of the mildest forms of profanity or blasphemy, even as rhetorical devices. Recall that, in some parts of the country, and for some jurors, saying “Lord, no!” for emphasis in answer to a question involves breaking one of the Ten Commandments. There are various reasons for the expert to use a blackboard, marker board, or flip chart (for further discussion, see Chapter 6 in The Psychiatrist in Court: A Survival Guide). The expert should prepare some information that can be presented effectively by using one of these aids, if only to break the talking-heads monotony of witness after witness. Make sure you can be heard when using the blackboard, marker board, or flip chart because, if there is a microphone, you will now be away from it. Do not be ashamed to boom it out. Similarly, be sure to write large enough to be read by the farthest juror; ask the far ranks if they can see the first letter or picture you write or draw. If not, increase the scale. Novice experts may not be aware that the witness who faces the blackboard and mumbles the sound-track accompaniment to his micrographia is not only ineffective but also actively alienating, possibly even insulting, the jury. The companion volume makes the following point:
In addition, when you pick up a piece of chalk in your hand and you stand in front of the blackboard, you become, as a transference object, the most trusted figure in common human experience: the teacher. The teacher knows. The juror may not know what the capital of Virginia is—or what chlorpromazine is used for—but knows the teacher knows. The power of the image transcends what you actually draw; what counts is the apparent effort to get your point across, because juries respond to the idea that you are trying to help them understand. (3, p. 62)

When responding to cross-examination, maintain the identical level of interest, animation, politeness, and responsiveness as you demonstrated on direct examination (although you are allowed to become more alert). The expert who is warm, winning, and discursive on direct examination only to turn crabbed, argumentative, defensive, and guarded on cross-examination is communicating only bias. You are telling the truth; what difference does it make which side is asking the questions? The hostile, attacking attorney who

The Expert in Trial

81

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.

82

THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine [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

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

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

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

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

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

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

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

90

THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993

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

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

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

This page intentionally left blank .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This page intentionally left blank .

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

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

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

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

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

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

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

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

the more we serve this valuable and necessary function. That book may fill in some of the blanks. to require our services in increasing numbers. consider first reading the companion volume. If I have made too many assumptions about you.D. On the other hand. M. Although some forces in society. 119 . Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). or have taken too much for granted about your background and experience in any portion of this text. As always. decry the expert witness function and voice arguments for its abolition. I welcome comments and suggestions from readers to correct. and helpful testimony. which I cowrote with Robert I. the courts will continue. effective. or render this text more useful.C H A P T E R 11 Epilogue I HOPE this introduction to the challenging yet always fascinating role of expert witness has been instructive and helpful to you. including our medical colleagues. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. The better we are at meeting the courts’ needs with ethical. expand. if you wish to take your work to the next level. the reader. Simon. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. The Psychiatrist in Court: A Survival Guide. from all evidence. consider reviewing the successor volume to this one. (American Psychiatric Publishing 2002).

This page intentionally left blank .

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

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

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

This page intentionally left blank .

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

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

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

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

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

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

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

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

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

This page intentionally left blank .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sign up to vote on this title
UsefulNot useful