The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

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


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


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


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


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


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


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


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

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

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

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

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

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

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

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

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

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. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. the forensic perspective almost always extends beyond the individual examinee. and captured as well in the consent form for forensic examination as Appendix 1. it should. when in doubt. and relevant literature. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. Most attorneys know not to include details of their trial strategy in letters to you. fantasy. between the “whole truth” and the “admissible truth” (4). including records. court-related issues are often matters of public record and public exposure (in open court). of course. One trenchant reason for this approach is to obtain corroboration or discorroboration. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. with some exceptions. lest they be exposed prematurely to the other side. your personal attorney can always give you advice on nondiscoverable matters. The term also suggests that an expert’s opinion rests on a base. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. The issue here is the tension. later addressed. or impression. suspects. The retaining attorney will guide you in this matter. Therefore. is private and confidential. correspondence. litigants. with exceptions. Although therapy usually transpires within the patient’s self-reported data. the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. .Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. As we will see later. In contrast. Warnings are further discussed in later sections about the interview itself. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. my own or others’ interview notes. reports. Admissibility is a selection filter that poses conceptual problems for the novice expert accustomed to seeking all possible input for the care of the patient. or basis. defendants. legal documents. be carefully documented. convicts.

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

for example. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires.g. Other contextual clues about the hired gun are overly candid advertising in legal media (e. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. we are paid by time criteria. makes forensic psychiatrists unpopular with their clinical colleagues. Note that there may be some jurisdictional variation on this point. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. regardless of its clinical or empirical validity.. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. it most often means that the expert is sworn to testify about opinions that are true “more likely than not” or that are 51% certain. reasonable medical probability. For most of us. honest experts should avoid these approaches to . Although some will cry that there are exceptions. or even reasonable psychological certainty). high-profile insanity cases. As a general rule. All psychiatrists. Reasonable Medical Certainty Doubt is not a very pleasant condition. — 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. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. sell time. ask about the local variant. including forensic psychiatrists. forensic work is a sideline to our clinical focus. and leads physicians of all specialties observing.Introduction: What Makes an Expert? 7 for all important facts. Rather. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. but certainty is absurd.

summarized as follows (for more extensive discussion of this point. legal. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. and you maintain your ethical compass direction. 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). First. reasoning. If a clearly meritless case is offered to you for review. Thus.) Treater Versus Expert Should a patient-litigant’s treater ever serve as an expert witness? Although there are no inherent problems with serving as a fact witness and reporting on your observations of the patient. There are complexities in this area that should be addressed. and corroborating data. although the clinician is obligated to place the welfare of the patient above other considerations. For various reasons (5–7).” in this volume). (By the way. Often no absolute standard exists by which to measure opinion testimony. and ethical incompatibilities with serving as your patient’s expert. SECOND EDITION finding work. you avoid temptation to skew your opinion. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. see reference 5 and the appendix to reference 3). Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. case materials. there are significant clinical. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. it is an excellent way to benefit from the teaching of colleagues and to share ideas. “Developing and Marketing a Forensic Practice. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9.8 THE PSYCHIATRIST AS EXPERT WITNESS. because these provide a base of financial stability that enables you to turn down cases. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. 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. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating.

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

Kane AW: Psychological Experts in Divorce. 4. 6. 2005 2. British Medical Journal 337 (#7664). 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Depositions. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. MD. Suggested Readings Ackerman MJ. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Available at: http://www. Gould JW: Clinicians in Court: A Guide to Subpoenas. FL. American Psychiatric Press. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. 1992 Appelbaum PS. 3. MD. Harv Rev Psychiatry1:4–5. J Am Acad Psychiatry Law 33:55–58. 1997 Gutheil TG. DC. 2008 . 2003 Strasburger LH. Lewis Publishers. 2007 Barsky AE. 2008. Baltimore. Expert’s Quarterly (Winter): 2. Guilford Press. 2006 Catto G: Acting as an expert witness. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Wiley. 1998 Gutheil TG. Lippincott. J Am Acad Psychiatry Law 25:233–247.asp. Testifying and Everything Else You Need to Know. Williams & Wilkins. Simon RI: Narcissistic dimensions of expert witness practice. Am J Psychiatry 154:448–456. 1997 Gutheil TG. J Am Acad Psychiatry Law 34:14–21. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 5. J Am Acad Psychiatry Law 31:422–427. 7. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Personal Injury and Other Civil Actions. 2002 Bronstein DA: Law for the Expert Witness. Gutheil TG. Bull Am Acad Psychiatry Law 20:153–162. 8. 4th Edition. “the admissible truth”: an ethics dilemma for expert witnesses. White MS. Washington. et al: The “whole truth” guidance/expert_witness_guidance. Baltimore. August 2.gmc-uk. New York. Hauser MJ. Boca Raton. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Gutheil TG: Clinical Handbook of Psychiatry and the Law. New York. Williams & Wilkins (Wolters Kluwer). Lippincott. Accessed August 5. SECOND EDITION References 1.10 THE PSYCHIATRIST AS EXPERT WITNESS.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

at some point. that is. Which comes first boils down to a matter of individual preference. As a rule. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. In other cases. your first task might be an evaluation of plaintiff. is more accountable. Moreover. for that matter). . as a professional. that role would be ethically incompatible with the objective testifying role. You may provide rebuttal material for use by others. going to testify. 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.First Principles 29 lead to the courtroom. defendant. 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. working for the attorney or insurer is a far better idea than working for the client alone. You may be needed to evaluate a plaintiff (or a defendant. what your time permits. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. If you are. someone who has to generate a written report. how free from bias or conflict the situation is—finally ask. 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. how you feel about the attorney. nontreatment role is clearer. The Final Decision Putting together everything that you now know—what you charge. The usual next step begins with your receipt of written materials on the case. your consultative. Among other things. an individual client. You might advise the attorney on how to cross-examine the other side’s experts or litigants. rarely. Do one or the other. your attorney. should you take the case or should you turn it down? The above sequence of queries is part of a negotiating process between you and the attorney or the law firm or even. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. what your skills or knowledge support. testator. or even witness. Will you be expected to testify at trial. You simply may be a consultant to the attorney on the merits of the case at the outset. often in orange-crate–sized lots.

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

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

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

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

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

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

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

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

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

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

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

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

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



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


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-



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,

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

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

The interview also gives you a chance to assess what might be called a sense of proportion. the cause of the crime. an injury from which he recovered rapidly without lasting effect. Because of the seriousness of criminal penalties. the result of the crime. 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.8).Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. an unrelated accompaniment to the crime. malingering is especially common and problematic in this assessment. the interview in a criminal responsibility case has the least power of all the data collected. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. 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. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. a surprising number of individuals avoid treatment. some on . All the interview data must be fitted to the totality of the database. a plaintiff drank from a chemically contaminated bottle and burned his mouth. 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. Finally. for example. I find the interview for an emotional injury case to be of primary value. and so on. The novice expert should become familiar with useful publications on the subject (7. as with all forensic evaluations (6). although mandatory and irreplaceable.

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

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

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

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

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

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

Washington. 1999 Gutheil TG: Fundamentals of medical record documentation. 2nd Edition. DC. THE PSYCHIATRIST AS EXPERT WITNESS. American Psychiatric Press. 2000 10. 1992 Gutheil TG: A confusion of tongues: competence. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. American Psychiatric Press. J Psychiatry Law 28:5–18. Legal Studies Forum 9:41–53.56 8. insanity. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists.” J Am Acad Psychiatry Law 35:112–117. Viglion DJ. Washington. et al: Detection of malingering in competency to stand trial evaluations. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. psychiatry and the law. Bull Am Acad Psychiatry Law 20:409–418. 2004 Knoll J. J Am Acad Psychiatry Law 34:215–223. Law and Human Behavior 19:493– 505. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. SECOND EDITION Gothard S. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Psychiatr Clin North Am 17:439–446. 1995 9. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. Psychiatric Services 50:767–773. Psychiatry 1:26–28. DC. 1993 . Gutheil TG: The problem of evasive testimony: the expert “waffle. Bull Am Acad Psychiatry Law 21:23–36. Meloy JR. 2005 Simon RI. 1987 11. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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


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.



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

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

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

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

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

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

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

The Expert in Trial 2.


3. 4.


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



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


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.

It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91

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

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

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

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

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

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

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

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

9. 14. 15.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. very likely. 3.1 1. 17. 4. 5. 7. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 2. intensity (likely. 10. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 11. Resnick’s outline for a typical criminal report. . 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. but it may get you started. Be careful about changing wording concerning issues of causation. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. 6. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. 8. 13. 12. 16. and effect of emotional injuries—three common problem areas. The Criminal Report: An Example The following is Dr. extremely likely).

2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. 19. THE PSYCHIATRIST AS EXPERT WITNESS. Poythress NG. Am J Psychiatry 143:164–169. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. pp 511–528 . 23. Wiley. Petrilla J. Hess AK. SEAK. Guilford Press. et al (eds): Consultation. Falmouth. 24. 20. MA. 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. Edited by Weiner IB. 3rd Edition. 2007. 1986 Melton GB. 1987. report writing and expert testimony. New York. New York. in Handbook of Forensic Psychology. 25. 21.102 18. 22. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Payment in a timely (g) manner. as an advance against which expenses are billed (p). leaving the retaining attorney or insurer individually liable for any unpaid balance (m). and as a condition for its specific to this travel is exbeing undertaken. Gutheil by name (h). 4. Attorney or firm representative as individual and on behalf of firm (signatory shall have the power to bind the law firm with regard to his contract). including travel by first-class conveyance and appropriate lodging if needed. Gutheil’s FID# is . Gutheil will be unavailable for testimony in person during the month of August (f ). Gutheil. is the sole responsibility of the retaining attorney or insurer (i). The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. and examinations as discovery rules permit. Failure to comply may void this agreement except for duties of confidentiality (l). Overdue accounts may accrue interest at 6% per annum. a retainer of $ pected 3 business days in advance. irrespective of case outcome (j) or defaulted appearances. made out to Dr. (s) Note: Please send all case materials to (address) Date .126 THE PSYCHIATRIST AS EXPERT WITNESS. Signature below indicates agreement with all (r) these terms. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. Please note that because of vacation scheduling. 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. Before such travel is undertaken. Dr. materials. 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). prorated (k). Dr. (q) 6. 5. Signed. please return one copy 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). A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. For out-of-state evaluations or testimony. SECOND EDITION per day 2.

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

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

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

photocopying. Diplomate. American Board of Psychiatry and Neurology Diplomate. 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. SECOND EDITION rates will apply to portal-to-portal travel time. All travel shall be by first-class conveyance. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. etc. I will send you a monthly statement. including secretarial service. long-distance telephone calls. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. court order. literature research. 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). prior to my testimony. If the foregoing fee basis meets with your approval. Nor shall such failure relieve your obligation to have on deposit. expert or otherwise. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. Strasburger. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. messenger services. Time spent in preparing for testimony shall be billed at the hourly rate specified above. postage.130 THE PSYCHIATRIST AS EXPERT WITNESS. M. setting forth the nature of the services rendered since the prior billing. Sincerely. as prescribed by statute. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. along with a listing of out-of-pocket expenses. court rule. 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. the retainer discussed above. no refund of the retainer deposit will be made. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . please so indicate by signing this letter and returning it to me with your check for the retainer. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Please keep a copy of this letter for your records. and all travel expenses will be reimbursed. Any excess over the retainer balance is due upon receipt. Larry H.D.

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

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

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

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

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

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

Unlike confidentiality. 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.” which the expert must also know. “get the money up front. 2001: “The Phantom Expert. to prevent the experts from hearing other testimony.” in suggested readings.” “reasonable psychological certainty. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. this term usually refers to service without payment. and the like.” “51% certainty. The expert should be familiar with the relevant local standard and its definition. See Gutheil et al. the standard is usually national but may be local—the “locality rule.” “reasonable medical (or psychological) probability.” Though most attorneys are responsible. thus an attorney or an expert might perform a relevant duty for free. particularly experts. . the origin of the frequently invoked mantra. by excluding them from the courtroom. Appendix 4.138 THE PSYCHIATRIST AS EXPERT WITNESS. but they cannot by themselves reform the exploitative personality. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. administrative law procedures. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. Several jurisdictional variants include “more likely than not. Pro bono Short for pro bono publico (for the public’s good). a few find ways not to pay you what they owe. privilege is narrowly construed as applying in legal or quasi-legal contexts only.” and so on. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. which broadly applies to information that should not be shared with others in many contexts. 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. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. Sequester The separation of witnesses. SECOND EDITION variations on this ploy. hearings.” An expert testifying about a case must be familiar with the relevant standard.

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

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

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

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

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

1–3 Experts honesty of. 30–32 of experts. 13–14.144 THE PSYCHIATRIST AS EXPERT WITNESS. 75–79. 62 Hired guns. 18–19 honest advocate model. always soliciting. 28. 80 Fabrics. 32 Good writing. 38 “nothing to go on” problem. scholars in. 100–101 billing. 129–130 standard fee agreement. 113 contact with opposing attorneys. xiii–xiv evidence in. 6. See Fees. See Meals Emotional injury cases. See Air travel Food. 52–55 History of expert. 28 Fairness. 15 altering reports. 67 marketing. 15 social relationships with attorneys. principles of. importance. 16 turndown rates. 28. 25 External consistency of story. 15 Honesty. 112 Failure of retaining attorney to pay fee. deposition and trial. 49–50 Employment relationship. 5. 2 Forms detailed fee agreement. 15 loyalty to retaining attorney. 6 High-profile cases. 7–8. 13–21. 75 Ethics. 26–28 detailed fee agreement. 88 Fees. 115–116 Humility factor. 9 Humor. 60 False allegations. 136 spotting the other side’s. for travel. 50–51 interviews. 8 Hearsay. 14–15 Etiquette at trial. 25 Flashlight. 1 functions. Reimbursement for travel Expert witnesses. 33 oaths. 80 Flying. 44. doing none. 103–108 Forensic reports. 28. 125–128 Gestures at trial. 17 special expertise of. staying with. 129–130 standard fee agreement. 61. 115 Feedback. 107 new facts at trial. sample. 95–96. 67 Expenses. 47–48 cross-examination. 24 Entrance of judge. 78 Global requests. 78 Eating. 115 Flip charts at trial. 82 nonconfidentiality warnings. 82 Hotels. of sexual misconduct. or experts. sample. 51–52 Hindsight bias. 44 . See also Conflict of interest advocate for truth model. principles of. sample. 113 Fitness as expert. sample. 61. ethical model. 87–88 Evidence. 112–113. 37 Eye contact at trial. 15 remaining neutral. 96 Harm. litigants. See also Hired guns definition. 36 “False memory” cases. See also Written documentation Forensics. 49–51 examples. issuing. SECOND EDITION Family or friends. 16 marketing a forensic practice. See Meals Forensic countertransference. 28. See Countertransference Forensic practice. 25 Honest advocate. 38. See also Ethics of attorneys. 125–128 travel costs.

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

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

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

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

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

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