The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

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

3

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

4

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

5

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

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

7

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

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

9

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

10 The Expert on the Road: Some Travel Tips

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[Finally] I realized that each witness chair comes equipped with a stabilizer control. S-3) THE EXPERT faces many challenges in forensic work. examinees being interviewed by a psychiatrist.” They may forget that this encounter is not therapy.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. First. 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.. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. In this chapter. 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 so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. rather than help.. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. and its results may harm. p. the ethical expert be13 . their ultimate goals in the legal process. It is a control easily within the reach of every witness—the lever marked “truth.” (1. tend to drift unconsciously into a “therapeutic mode. particularly an empathically attuned one.

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

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

discussed further in Chapter 3.16 THE PSYCHIATRIST AS EXPERT WITNESS. respect. that is not your problem. “First Principles. you may come to like. out of feelings of being loyal to his or her retaining attorney. .g. your opinion and its limitations. might extensive socializing with the retaining attorney—or.. 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. 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. committed quality work. A pitfall in this area might be called forensic countertransference. this factor would require greater scrutiny of the relationship by the forensic witness. Extending this idea. or make whatever use of your opinion that may be of service. thus. identification with your retaining attorney (discussed more extensively in [3]). and what you can and cannot testify to under oath. Recall that the attorney’s goals are winning the case. being retained by an attorney with whom you have had an extensive previous social relationship—constitute a problem? The answer probably depends on the maturity of both parties. If the attorney. but two dimensions of the relationship pose potential ethical problems. First. you do not owe agreement with the attorney’s position or theory of the case. is disappointed that your present opinion is unfavorable. As you work closely with your attorney. that is. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. you owe only serious. You do owe it to your attorney to level with him or her about yourself (e. The varying forms of bias are discussed below. is misreading the nature of the ethical contract between the two parties. I suggest you also owe rigorous candor to your retaining attorney about what you can and cannot say and what the weaknesses in your own opinion are. this identification may compromise your needed objectivity. just what does the expert owe the retaining attorney? Strictly speaking. with whom you have done many a previous case together. This difference is significant. yours are providing ethical and valid consultation or testimony or both. and admire him or her. under the rubric of loyalty. the skeletons in your closet. settle or drop the case. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. but the likelihood of identification bias would surely seem to be greater. similarly.” in this volume).

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. an attorney. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. for instance. 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. Similarly. this effort may be termed nonsexual seduction. Somewhat idealistically. as a clinician. you are expected to manage your countertransference toward the examinee or the examinee’s actions. many expert biases are not detected either by the adversary system or even by the experts themselves. eliminate other subtler biasing factors. 33) However. The situation does reveal some complexity. bias can be exceedingly subtle. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. In this model the attorney lavishes praise on the expert. such as overidentification with the judge or the “system. The . p. There is no shame in this. 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. promises many future retentions. If you are a victim of child molestation. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. of course. although not common in practice. 337). you should refer the case. you may feel unable to examine objectively a child molester. 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. and may add blandishments such as dinners at expensive restaurants and the like. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. Slovenko (5) has suggested: The adversary system of calling witnesses for each side and then examining them by direct and cross examination has evolved specifically for the purpose of exposing shortcomings and biases and probing the accuracy and veracity of opposing witnesses’ testimony. This neutral position is highly desirable for that reason.” Note also that. of course. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. (p. The fact that the position is more or less neutral does not. if the countertransference is unmanageable.

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

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

5. 38. 2008 Katz J: The fallacy of the impartial expert. Milwaukee. J Am Acad Psychiatry Law 36:195–200. 8. Williams & Wilkins. J Am Acad Psychiatry Law 27:546–553. Martinez R: Forensic Ethics and the Expert Witness. American Psychiatric Publishing. December 2004. Commons ML. Psychiatric Annals 34:260–270. WI. 36. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Defense Research Institute. 39 Gutheil TG. Gutheil TG: Expert witness perceptions of bias in experts. Washington. Weinstock R. 3. Int J Law Psychiatry 13:249–259. Psychiatric Times. Prof Psychol Prac Res 33:307–309. 1999 Commons ML. New York. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. pp 33.20 THE PSYCHIATRIST AS EXPERT WITNESS. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. Miller PM: Withholding. SECOND EDITION References 1. objectivity and fair compensation. 2002 Candilis PJ. 2001 Slovenko R: Discrediting the expert witness on account of bias. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. 7. 6. J Psychiatry Law 28:449–457. Springer Science & Business Media. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2002 Gutheil TG. DC. 1990 Brodsky SL. 1992 . Bull Am Acad Psychiatry Law 20:141–152. 2007 Gutheil TG. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. J Am Acad Psychiatry Law 32:70–75. 1992 Lynett E. Simon RI: Avoiding bias in expert testimony. 4th Edition. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Bull Am Acad Psychiatry Law 20:163–177. 2001 Miller RD: Professional vs personal ethics: methods for system reform. MD. Baker TO: Operator’s Manual for a Witness Chair. Miller PM. 2004 Gutheil TG. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. 2004 4. Baltimore. J Am Acad Psychiatry Law 29:336–339. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 1983 Appelbaum PS. 2.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. SECOND EDITION were of a particular deviation. 1994 Gutheil TG. 2002 Gutheil TG: Reflections on coaching by attorneys. 2003 3. then is sexually abused by a treater. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. they may serve you to recall the case at a later point for research or publication purposes. if any. Keeping Records How long should you keep forensic records? A basic rule is that you should never discard case materials until you have asked the retaining attorney if you can do so. two major approaches apply: 1) shred or have a reputable company shred the paperwork. or 2) return the materials to the retaining agency. event. and then has other symptoms or more of the same symptoms. all case materials except your reports. because they would be hard to replace. Another good rule is to discard. although it has not yet gained broad enough acceptance to be generally admissible as evidence. In addition. Even if a case seems “over. What portion (usually. or incident. J Am Acad Psychiatry Law 31:6–9. what the results were of subsequent events. mistrial claims. If you are discarding case materials. 2. with permission. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. Kirby v Ahmad. Washington. and what the exacerbations were of preexisting conditions.40 THE PSYCHIATRIST AS EXPERT WITNESS.” there may be subsequent posttrial motions. and so forth that require revisiting the materials. American Psychiatric Publishing. work by Pittman and Orr (5) on differentiating serial trauma shows promise. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. keep the latter indefinitely. . 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. References 1. Further research may reveal other promising approaches (6). and your interview notes. Or. appeals. 63 Ohio Misc 2d 533 at 534. DC.

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

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

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

Types of Typical Cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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meets with your unfailing politeness and persistent civility is perpetrating suicide, not homicide. If either side asks a genuinely excellent question, say so but only if you mean it. Answering cross-examination questions does not require that you help out the attorney with various possible misunderstandings he or she may have about psychiatry; just answer the question. The only exception to this rule is when so profound a misunderstanding of some fact is taking place that for you to answer the question would merely precipitate and perpetuate a French farce situation of two parties on totally different wavelengths; this situation is not funny in court. Clarify the point, then wait for the next question.

Some Pointers
Some experts develop a code with their attorney to aid covering certain points brought out on cross-examination. For example, expert and attorney may agree that if the expert prefaces an answer on cross-examination with, “Well, that’s an interesting point...,” it means that the expert wishes to be asked about the issue on redirect. Such an arrangement may be considered, but in practice it may be more cumbersome and distracting than it is worth. In a personal communication (K. Lipez, November 1996), an experienced judge noted that his opinion of an expert falls if the expert has failed to anticipate, and seems unprepared for, an obvious line of questioning. For example, in a criminal trial with a proposed insanity defense, the question of malingering is highly relevant. An expert who seems surprised at this issue being brought out on cross-examination reveals serious lacunae in understanding the forensic issues involved. The same judge cautioned against too facile a psychiatric or psychological explanation of human behavior. The posture that everything can be explained (or even worse, “I can explain everything”) is unconvincing to juries and may even imply that the examinee has succeeded in manipulating the psychiatrist. Finally, I suggest giving up the fantasy of being able to predict entirely the effect of what you say on the jury: the jury will decide how the jury will decide. In a case in which a psychiatrist was being sued for malpractice in a patient’s suicide, I gave extensive defense testimony and remarked, strictly in passing, that, although it would not be ethical to give my own independent diagnosis—because I had not seen the patient—the diagnosis given by those who had seen the patient was fully consistent with the recorded symptoms. A poll of the jury after the defense verdict revealed that the jury had been impressed and perhaps even swayed by the fact that the only witnesses who used the word ethical were I and the physician-defendant.

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An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine [4]. In fact, given the actual frequency of sexual misconduct complaints by BPD patients against their therapists, patients with BPD are statistically more likely to be initiators of true claims than false ones.) Horrified at this evolving debacle and unable to stop it or even comment on it until the next break, I took refuge where all witnesses in such a spot should take it: the absolute narrow truth. The attorney might catch on or might not, might be baffled or might not, might be annoyed with you afterward or might not, but those are not your problems. The oath always provides sanctuary in a storm. A similar dilemma faces the testifying expert when some significant fact is revealed for the first time during trial testimony—a fact that changes your opinion. Do not panic and feel guilty, abashed, or inadequate. This revelation may be the lawyer’s lapse, but it is not your problem. Your job is to tell the truth; if the facts substantively change, an ethical expert’s opinion would be expected to change.

Language Level
Remember to keep your testimony basic and jargon free. Illustrate your points with analogies and metaphors that you believe the average jury will follow. The following is an example of how you might discuss in court the mechanism of action of a selective serotonin reuptake inhibitor:
You know that the spark plugs on your car work by sending a spark across a narrow gap (show by using your fingers). Well, the nerves in your nervous system, including the nerves that control your mood, communicate in the same way (sketch a synapse). The upstream nerve sends an electrical current (draw a lightning bolt) down to this spark gap called a synapse (write word on board), and when it gets there, the current releases little blobs of chemicals like tiny water balloons. These float across the spark gap and hit certain “hot buttons” on the end of the downstream nerve and set off the next electrical current (draw another lightning bolt in the downstream nerve). Now that these chemicals are out there, how do you turn them off for the next bolt? The upstream nerve sucks them back up like a vacuum cleaner, and the system is ready for the next nerve impulse. Now this medication blocks

even if the technical details are lost in the shuffle.” but this appreciation is lost if the jury cannot understand or follow your description. 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. do not underestimate juries. any testimony from this witness would be bought and meaningless. just like putting your hand over the vacuum nozzle. the best cross-examination is.The Expert in Trial (draw a barrier) this process. Respect the juror. .—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. the chemicals stay in the spark gap and keep working so that your mood is lifted. as if to convey. Over the years. I have been impressed by their ability to grasp what is at issue.” Realistically. Adventures in Cross-Examination For experienced experts. The hazards of lack of practice are revealed by this following segment from an actual murder trial. and slavishly but perfectly appropriately. The expert is on direct examination by his own retaining attorney. In the same way. and throat clear that you emit on the stand. That is how this kind of antidepressant or mood elevator works. The jury hears the testimony twice—an aid to both memory and persuasion. stutter.” preferably said in a mildly contemptuous tone. “I have no questions for this witness. the jury usually appreciates being given the “inside story. depressed— um—and seeking help. 83 Although this mode of explanation may seem cumbersome. Um—as the events became closer to the—um—incident itself [the murder]. and the expert has theoretically prepared to tell the story in a coherent manner. Recall that this is direct examination by his own retaining attorney. it is numbing to a jury. may record every pause. if you do that. some scholars assert. the dirt stays on the floor. This is a powerful argument for at least organizing your thoughts before you begin to testify. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. As you can grasp by merely reading this response aloud. “I don’t care to waste my time on this whore. Consider practicing such a description with your attorney or colleagues or friends. such an avoidance of cross-examination is sound trial strategy. grunt. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. 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 second fundamental principle of expert cross-examination is keep the expert on a tight rein.”) or exhibitionism (“Watch me shine!”). questions beginning “Is it possible... “That’s generally true. what you say is often true in other cases. surprisingly.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. “Although the present case is a clear exception to that rule. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. the attorney’s competitive strivings with the opposing attorney or firm. which may be asked on cross. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”).” the attorney may move on to the next question after you have said. The attorney may know the answer to a particular question from the expert’s report. but in this instance it is not. It is better to say. The following are some examples of the last (all are leading questions. attorneys do not perform this simple but effective maneuver. such as the previously listed leading questions.84 THE PSYCHIATRIST AS EXPERT WITNESS. not always) aware of two fundamental principles that should guide this activity. no problem..e. and even the attorney’s competitive feelings directed toward the expert. Instead. interrogatory. “that’s generally true” and you may be too flustered to challenge the action. the attorney’s wish or need to have the client see the attorney doing something. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. deposition. can they not?” • “Another expert might come to a different conclusion. First. isn’t that right. Even those attorneys who opt to engage in cross-examination are usually (but. or publications. or alternatively.” . The tight rein on which you are held may make it difficult to get your opinion out there. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. SECOND EDITION Most often. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. however. Throw it away.” are almost always answered yes on the theory that almost anything is possible). ask only questions to which only one answer is possible (fittingly. or the answer may be obvious from the question (i. never ask a question to which you do not already know the answer. the attorney asks closed questions. the question answers itself ). If you want to say. equivocating hurts you. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony.

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

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

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

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

The Expert in Trial 2.

89

3. 4.

5.

Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007

Suggested Readings
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004

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

CHAPTER 7

Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.

Scheduling Issues
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. Running shoes also allow you to sprint through airports to . matches. and hotels directly and save you much time and stress on the telephone or online. to ensure that it still fits. and your colleagues. on rare occasion. polished shoes for men and women). 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. stay overnight in a hotel or similar setting. testify or interview the next day. cars. and general information can be obtained from books. the emerging online travel services (Expedia and the like) may prove useful. Still other guides are provided in the suggested readings at the end of this chapter. especially if you have not worn it for a while. Some General Recommendations Travel Information Travel guides are available everywhere. These services can book flights. and one pair of shoes. I recommend The Packing Book (1) as an excellent resource if you always arrive at your travel destination with the wrong clothes in serious disarray and find you have left out several important items. Opt for crushproof fabrics and materials whenever possible. Try on everything before you pack it. Consult with significant others for their opinions if needed. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. For cases that involve land travel.112 THE PSYCHIATRIST AS EXPERT WITNESS. you may make the appropriate adjustments. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. Another useful reference is Jet Smart (2). travel agents. and return that day or the following one. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. you must assume significant time delays and be prepared for your time commitment for court appearances to go into a second or even third day. the process takes even longer. looks professional. 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. Alternatively. and is in good repair. the Internet.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

review of records. the hourly 129 . If travel from my office is necessary to perform any of these services. This retainer will constitute a credit balance until exhausted. It is understood and agreed that timely payment for my service and expenses will be solely the responsibility of the attorney and is in no way contingent upon the outcome of any litigation or settlement. Thereafter.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. psychiatric interview or evaluation. I may require an additional retainer. M. consultation with counsel. Any credit balance remaining will be refunded upon the termination of my services. Psychiatric services may include an initial consultation. 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.D. STRASBURGER. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. interviews with family members or other persons. if it appears that substantial services are yet to be rendered. LARRY H. and report preparation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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