This action might not be possible to undo. Are you sure you want to continue?
The Psychiatrist as Expert Witness
This page intentionally left blank
England . Gutheil. M. Massachusetts Washington.D.The Psychiatrist as Expert Witness Second Edition Thomas G. DC London. Harvard Medical School Boston.
Forensic Psychiatry. Evidence. represent the views and opinions of the individual authors and do not necessarily represent the policies and opinions of APPI or the American Psychiatric Association. Gutheil. Dr. c1998. ISBN 978-1-58562-342-6 (alk.G8 2009 614′.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. The psychiatrist as expert witness / Thomas G. Includes bibliographical references and index. Thomas G. . Title.org Library of Congress Cataloging-in-Publication Data Gutheil. therapeutic standards may change. Gutheil has no competing interests to disclose. and routes of administration is accurate at the time of publication and consistent with standards set by the U.S. I. II. Gutheil. 2. As medical research and practice continue to advance. cm. [DNLM: 1. Expert Testimony. however. Gutheil. Expert—United States.appi. Companion to: The psychiatrist in court / Thomas G. Copyright © 2009 American Psychiatric Publishing. p. Food and Drug Administration and the general medical community. Books published by American Psychiatric Publishing. specific situations may require a specific therapeutic response not included in this book. American Psychiatric Publishing. Inc. Inc. 2. Inc. schedules. VA 22209-3901 www. paper) 1. Forensic psychiatry—United States. 1000 Wilson Boulevard Arlington. Thomas G.. Moreover. 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. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. W740 G984pf 2009] KF8965. For these reasons and because human and mechanical errors sometimes occur. — 2nd ed.Note: The author has worked to ensure that all information in this book is accurate at the time of publication and consistent with general psychiatric and medical standards. and that information concerning drug dosages. Psychiatrist in court.
To Shannon.To my children and the hope of the future. . truly the wind beneath my wings.
This page intentionally left blank .
. . . 14 Ethics and the Oath . . . . .xi Preface to the Second Edition . . . . . . 4 Confidentiality Warnings . . . . . . . 13 Turndown Rates. . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Prime Question . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Adversarial Context. 8 The Humility Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . .Contents About the Author . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . .
Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 The Expert on the Road: Some Travel Tips
for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. He is a past president of the American Academy of Psychiatry and Law and the current president of the International Academy of Law and Mental Health. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. M.. and now in its fourth edition.About the Author Thomas G.D. Clinical Handbook of Psychiatry and the Law. Through more than 250 publications and many lectures and seminars in national and international fora. he has received local and national writing and teaching awards. Recipient of every major award in the forensic field. Harvard Medical School. 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. xi . M. Gutheil. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. Appelbaum.. he has taught many clinicians about the interfaces between psychiatry and the law. coauthored with Paul S. the textbook.D. received the Manfred S.
This page intentionally left blank .
besides the requisite updating of references and suggested readings. you might consider this book to be next in logical and chronological order to the companion volume in this series. In addition. and at the request of past readers of the first edition. Often the greatest difficulties in this profession occur at the outset. if you feel shaky about the basics. 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. before experience itself has had the opportunity to provide the most durable and valuable instruction. a model forensic consent form for examination. which is aimed primarily at the treating psychiatrist who may end up in a courtroom.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. an expanded discussion of bias in testimony. interspersed with frenzied bursts of action. that book is a good place to warm up. Such service presents many stresses and equally many satisfactions. The Psychiatrist in Court: A Survival Guide. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. 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. 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. in fact. additional illustrative examples. it provides tedious stretches of waiting and inactivity. xiii . As an aid to present readers. Moreover. and cases or principles that I have learned about since the first edition. From another perspective. Forensic psychiatry is growing in popularity. expanded definitions of key concepts. other changes in this second edition include: a glossary of useful terms. 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.
concrete advice replaces abstract theorizing. Thomas G. attempts to provide some of that practical. M. Gutheil. 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. the novice court goer. SECOND EDITION If your early court experience has not been too traumatic. the later chapters may yet prove useful. whenever possible. drawing on developments subsequent to its first version. I hope you find this approach useful. . in part because they represent material never covered in other sources. you.xiv THE PSYCHIATRIST AS EXPERT WITNESS. and informal discussion in a user-friendly tone replaces scholarly discourse. The more seasoned expert may wish to skim over the more familiar material in the text. kicking and screaming. for such readers. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. Indeed. hands-on mentoring and guidance that were not readily available in the past. perhaps— dare I say it—interesting and even fun.D. This new updated edition. Best wishes for success in your burgeoning career as an expert witness. but choosing to go. You who are in that position are also my audience.
I especially thank “Dr. Hilliard. Larry Strasburger.D. Ellen Lewy for absolutely indispensable assistance with the manuscript. Harvard Medical School. and Ms. Resnick. Esq. and to Ms.” James T. to Drs. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. Candace Love of On-Point Research for valued assistance in compiling resources. Stephen Behnke. and Shannon Woolley for their careful review and most helpful critique and comments. Harold Bursztajn. for permission to use some of his material on writing for court.. M.. Phillip J. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. xv .Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center.
This page intentionally left blank .
Indeed. an expert witness may review a chart filled with other clinicians’ observations 1 . the concept of a psychiatric expert witness.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. the question “What makes an expert?” seems to answer itself: expertise makes the expert. even if those conclusions are based on others’ observations. In this book. In the courtroom setting. clinically defined. that is. in contrast the expert is entitled by the role to draw conclusions. 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. More narrowly. For example. to provide information and understanding relevant to the legal system’s concerns. is a psychiatrist who uses particular skills. knowing a lot about a certain topic and having extensive experience therein. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. both clinical and nonclinical. 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 of what makes an expert witness is more complex.
at times. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. then the judge or jury. not the ultimate finding that a judge or jury decides. incompetent.. the expert is to educate the retaining attorney. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. 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.” This issue is discussed further in later sections of this text.. I’d want to be treated by this person because he/she makes sense.. 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. if I had this problem. that is. . such as competence or insanity. are the very same ones who had retained me on a previous case. However. and so on.” You want someone who will present in a way that the jurors would be inclined to say this. some questions can only be answered by a specialist. For that matter. What I find bemusing is the fact that. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. the jury is free to accept or reject the expert’s testimony in whole or in part. I believe this person. insanity. Indeed. or malingering.I do not want someone who [merely] teaches others about it. competence. about matters that are beyond lay knowledge or decision making. Under this model. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. opinionphrased descriptions rather than conclusory statements: “in my opinion. I also want someone who has clinical experience and is doing that which he/she is testifying about. proclaiming their ultimate faith in the jurors themselves. Note in regard to the issue of ultimate findings.2 THE PSYCHIATRIST AS EXPERT WITNESS. because what an expert offers is “only” a witness’s opinion. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. 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. the court system needs expert witnesses in a burgeoning variety of technical fields. As a rule experts should limit themselves to criteria-driven.
and so forth would have accomplished this vital storytelling purpose. at family functions. and throughout this book. Most clinical work occurs in the context of the alliance. causation. pp. syndromes. Mozart begins to describe the opening scene of The Marriage of Figaro. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. 2) make the fact finder want you to win. the emperor is initially resistant to Mozart’s novel music. or resolved or otherwise put to therapeutic use. however. and 5) argue the case (1).Introduction: What Makes an Expert? 3 Another scholar. a law professor. and the one often most troubling to clinicians. Despite his doubts. The emperor leans forward. eyes glowing with interest. went even further by listing the functions of the expert as being to 1) tell the story. oppositionality. demographics. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. surmounted. (2. clinical entities. The foremost of these. and the resulting probabilities. 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. although basic. The highly experienced defense attorney who had retained me was heard to mutter at one point. with Figaro kneeling on stage taking the measurements of his marriage bed. 3) make sense out of the law. In one scene. 4) help the fact finder see the facts. statistics. In this chapter. is the adversarial context. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. conflict between the parties. “Where are the communion pictures?” Pressed for a less cryptic expression. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. . are so essential to this work that I review them in the following discussions. and an adversarial atmosphere are problems to be avoided. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. consider this scene: In the movie Amadeus. Showing pictures of the deceased at communion. he has become engrossed in the story. some points. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. The power of storytelling was captured in a movie about the career of Mozart.
Com- . render highly complex the question of agency. you usually work for the patient. both of which reside in every case and every patient or litigant. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. the adversarial context is one of the “givens” in the situation. I define the term work product to include the notes.. In other words. in the forensic setting. For example. you work for the consultee (i. ambivalences may be divided between the two parties in the case rather than felt internally by either.e. In the legal context. the court situation is a zero-sum game: one winner. because that position confers greater neutrality and protection for your efforts. two of the victims of this concept are ambivalence and complexity. in the clinical context. you usually do not). 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. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. The Prime Question Any forensic psychiatrist. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. as well as the usual lack of a physicianpatient relationship (i. one loser.4 THE PSYCHIATRIST AS EXPERT WITNESS. Although there may be as many views of the patient as there are team members. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). Note for completeness that certain forensic contexts.. they are not case-related documents and therefore are protected from disclosure. such as child custody evaluations. Unlike the search for consensus in the clinical setting. and other papers that the attorney generates in the course of litigation. in a forensic setting. This specialized topic is beyond the scope of this book.” a mandate that may trump other claims on your agency. must first ask the question. 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. files. The question of whom you work for also will alert you to major pitfalls of bias. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. memoranda. the retaining attorney or court). for whom am I working? Your answer will clarify your location within the adversarial framework. even if it is a compromise (3). In medicolegal work. The usual guiding principle in such determinations is “the best interests of the child. whether testifying or consulting. Like other consultants. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done.e.
Therefore. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. court-related issues are often matters of public record and public exposure (in open court). with exceptions. between the “whole truth” and the “admissible truth” (4). including records. or impression. Although therapy usually transpires within the patient’s self-reported data. . Most attorneys know not to include details of their trial strategy in letters to you. your personal attorney can always give you advice on nondiscoverable matters. it should. 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. be carefully documented. or basis. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. The term also suggests that an expert’s opinion rests on a base.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. One trenchant reason for this approach is to obtain corroboration or discorroboration. legal documents. defendants. my own or others’ interview notes. with some exceptions. convicts. litigants. As we will see later. The retaining attorney will guide you in this matter. fantasy. of course. when in doubt. The issue here is the tension. later addressed. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. lest they be exposed prematurely to the other side. correspondence. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. reports. Warnings are further discussed in later sections about the interview itself. 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. In contrast. suspects. the forensic perspective almost always extends beyond the individual examinee. 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. and relevant literature. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. is private and confidential. and captured as well in the consent form for forensic examination as Appendix 1.
it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. and to maintain an appropriately skeptical posture. but the Socratic method is one of the mainstays of courtroom procedure. In contrast. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. which preclude admission of certain kinds of data or evidence in the name of justice. as reported by the mother to the social work intern and then passed on to the social worker who shares it with the team—may constitute valuable clinical data. The Socratic Method Although expert testimony has been compared to teaching. despite the convoluted. This painstaking. experts in court must play by court rules. the forensic practitioner is wise to suspect everyone of having some stake in the matter.6 THE PSYCHIATRIST AS EXPERT WITNESS. one is guided by its rules. detailed. may be forced into limitations on this promise because of countervailing considerations of precedent. corroboration. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. hearsay. hearsay-ridden trail by which it comes to the team’s attention. Because a patient in treatment is willingly coming for help. obvious self-contradiction. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. absent clear delusions. — George Santayana Unlike the treatment context. Once again. and similar signs. though under oath to tell the whole truth. fundamental fairness.. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. be it moral or monetary. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. do not demand to be heard: answer all the questions and then stand down when dismissed. The witness should be guided by the maxim: when entering the courtroom. prejudice. and the like (4). Yet the court may be driven by principles of fairness.. 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. always seeking out verification. or discorroboration . In practical terms the expert witness.
For most of us. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. 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. we are paid by time criteria. or even reasonable psychological certainty). Reasonable Medical Certainty Doubt is not a very pleasant condition. reasonable medical probability. As a general rule. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. honest experts should avoid these approaches to . makes forensic psychiatrists unpopular with their clinical colleagues. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. and leads physicians of all specialties observing. Note that there may be some jurisdictional variation on this point. ask about the local variant.g. including forensic psychiatrists. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). forensic work is a sideline to our clinical focus. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. high-profile insanity cases.Introduction: What Makes an Expert? 7 for all important facts. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. Rather. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. — 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. regardless of its clinical or empirical validity. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. All psychiatrists. but certainty is absurd. sell time. for example. Other contextual clues about the hired gun are overly candid advertising in legal media (e.. Although some will cry that there are exceptions.
(By the way. There are complexities in this area that should be addressed. SECOND EDITION finding work. and ethical incompatibilities with serving as your patient’s expert. there are significant clinical. If a clearly meritless case is offered to you for review. and corroborating data. 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). although the clinician is obligated to place the welfare of the patient above other considerations. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. For various reasons (5–7). summarized as follows (for more extensive discussion of this point. and you maintain your ethical compass direction. because these provide a base of financial stability that enables you to turn down cases. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. Often no absolute standard exists by which to measure opinion testimony. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. 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. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. see reference 5 and the appendix to reference 3). so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. “Developing and Marketing a Forensic Practice.” in this volume). if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. legal.) 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. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . it is an excellent way to benefit from the teaching of colleagues and to share ideas. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material.8 THE PSYCHIATRIST AS EXPERT WITNESS. case materials. you avoid temptation to skew your opinion. reasoning. First. Thus.
most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. the wish to avoid paying expert fees that are usually higher than those of treaters. The Humility Factor Finally. in contrast. thus leaving the jury free to vote its “gut. the therapeutic alliance. the treater has usually had only the patient’s reports on which to rely. 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. though essential for therapy. whether because of simple ignorance of the above distinctions. Early in my career. even though this may occur appropriately under legal rules. Third. constitutes a bias for forensic functioning.Introduction: What Makes an Expert? 9 the treater gives in court.. From this viewpoint. treaters called into court may violate the confidentiality of the clinical setting.” This provocative image should be kept solidly in mind. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. rather than the entire forensic database. Attorneys seem to display a curious indifference to these incompatibilities. M. as noted in the section on malingering above. Indeed. Master forensic psychiatrist Robert Simon.D.” Although this last is true in certain respects. the expert goes in skeptical. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8).” Even when the expert is the only source of data that the jury receives. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. 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. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. not the engine. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. . Second. a treater begins work with a patient from a credulous position: the patient’s subjective view is the initial perspective agreed on and explored in the dyad. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book.
5. 1997 Gutheil TG. Available at: http://www. 7. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Accessed August 5. 3. J Am Acad Psychiatry Law 34:14–21. Williams & Wilkins (Wolters Kluwer).org/guidance/ethical_ guidance/expert_witness_guidance. Gould JW: Clinicians in Court: A Guide to Subpoenas. Testifying and Everything Else You Need to Know. Lippincott. Expert’s Quarterly (Winter): 2. 6. 2008 . Lewis Publishers. 4. Williams & Wilkins. MD. American Psychiatric Press. New York. August 2. Baltimore.10 THE PSYCHIATRIST AS EXPERT WITNESS. 1997 Gutheil TG. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Personal Injury and Other Civil Actions. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Bull Am Acad Psychiatry Law 20:153–162. FL. J Am Acad Psychiatry Law 25:233–247. 2005 2. et al: The “whole truth” vs. Am J Psychiatry 154:448–456. British Medical Journal 337 (#7664). 1998 Gutheil TG. 8. SECOND EDITION References 1. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 1992 Appelbaum PS. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. DC.asp. 2008. J Am Acad Psychiatry Law 31:422–427. “the admissible truth”: an ethics dilemma for expert witnesses. MD. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. New York. Lippincott. Simon RI: Narcissistic dimensions of expert witness practice. 4th Edition. Kane AW: Psychological Experts in Divorce. Boca Raton. Wiley. Gutheil TG. White MS. J Am Acad Psychiatry Law 33:55–58. 2002 Bronstein DA: Law for the Expert Witness.gmc-uk. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Baltimore. 2007 Barsky AE. Depositions. Guilford Press. Harv Rev Psychiatry1:4–5. Suggested Readings Ackerman MJ. Washington. 2003 Strasburger LH. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. 2006 Catto G: Acting as an expert witness. Hauser MJ.
Bull Am Acad Psychiatry Law 2:119–132. J Am Acad Psychiatry Law 30:10–13. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. Hillsdale. Analytic Press. in The Psychiatrist in the Courtroom. pp 233–248 Rogers R. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Washington. 1992 Dietz PE: The forensic psychiatrist of the future. 2005 Simon RI: Psychiatry and Law for Clinicians. Gold LH: Textbook of Forensic Psychiatry. 3rd Edition.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. 2001 Quen JM: The psychiatrist as expert witness. Behavioral Sciences and the Law 7:145–180. 2001 Simon RI. 1989 . Psychiatric Services 52:1526–1527. American Psychiatric Press. NJ. American Psychiatric Press. New York. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. Bull Am Acad Psychiatry Law 15:217–227. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 2004 Slovenko R: On the therapist serving as a witness. 1990 Gutheil TG. DC. Springer Science+Business Media. Int J Law Psychiatry 13:281–307. 1994. Edited by Quen JM. DC. Washington.
This page intentionally left blank .
with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. particularly an empathically attuned one. examinees being interviewed by a psychiatrist. tend to drift unconsciously into a “therapeutic mode. To prevent such inadvertent abuse or exploitation of the examinee. 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..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. the ethical expert be13 .. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. p. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. S-3) THE EXPERT faces many challenges in forensic work.[Finally] I realized that each witness chair comes equipped with a stabilizer control. First. rather than help. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons.” (1.” They may forget that this encounter is not therapy. In this chapter. their ultimate goals in the legal process. It is a control easily within the reach of every witness—the lever marked “truth..
either your threshold for validity is too high or you need to meet a better class of attorneys. After settling up any monetary adjustments. For symmetry. if necessary. the turndown rate is the percentage of cases in which. you are friends with one of the defendants). The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. and slams down the telephone. Turndown rates between 10% and 30% are not uncommon. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. your attorney still may use your opinion or report to bolster one aspect of the case or to limit the extravagant claims of the expert on the other side. 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? . SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. this case is over and has been turned down. If you turn down most cases you get. thanks you for your help. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate.14 THE PSYCHIATRIST AS EXPERT WITNESS. indeed. Rather. after reviewing. The warnings (carefully documented. understandably.. you decide you cannot support the retaining attorney’s position. denounces your integrity. Therefore. that the firm will not be using you as an expert. who—in the ideal situation—accepts this view. scoffs at your qualifications. If you take every case you review. 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. this case might be called a defense case because the actions of the defendants are.) For example.g. You pass this information on to your retaining plaintiff’s attorney. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. impugns your ancestors. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. and states. the attorney curses your name. indicates the intention of explaining your information to the client. In a not-so-ideal situation. (Note that even if you cannot support all of the claims proffered in the case. you must consider whether your threshold for case validity may be too low. defensible. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care.
you take nothing for granted. Partisan pressures from the adversary are put aside. speculate about. or a number of invalid or meritless cases.” Once under oath. only over those you elect to accept. An author described the special sensitivity to what one can swear to in this way: You are asked. This model is sometimes called the advocate for truth model. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. and the expert becomes the fully neutral observer and reporter. Nevertheless. that is. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold.” Your correct answer would be. and 2) you answer cross-examination truthfully (see the following discussion). Consequently. all of which you should turn down. One model holds that once the oath is taken. say. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. 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. and so on. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). for example. “What color is that house over there?” The novice answers. Consequently. 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. This model has been called the honest advocate model. inpatient care. “White. that position is always acceptable.” . all of which you might accept. you could receive a number of good cases. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. In forensic practice. guess. for a particular case outcome). The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. Although these referrals are not strictly turndowns.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. the only touchstone is absolute truth as you know it or understand it. they do represent cases in which you have elected not to participate. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. “White on this side.
that is. with whom you have done many a previous case together. 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. but the likelihood of identification bias would surely seem to be greater. you do not owe agreement with the attorney’s position or theory of the case. under the rubric of loyalty. . the skeletons in your closet. Recall that the attorney’s goals are winning the case. that is not your problem. you owe only serious. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. out of feelings of being loyal to his or her retaining attorney. The attorney is free to find another expert. this factor would require greater scrutiny of the relationship by the forensic witness. is disappointed that your present opinion is unfavorable. As you work closely with your attorney. 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. If the attorney. is misreading the nature of the ethical contract between the two parties. you may come to like. You do owe it to your attorney to level with him or her about yourself (e. “First Principles. 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. committed quality work. The varying forms of bias are discussed below. First. settle or drop the case. this identification may compromise your needed objectivity. just what does the expert owe the retaining attorney? Strictly speaking. and what you can and cannot testify to under oath.g. This difference is significant. or make whatever use of your opinion that may be of service. yours are providing ethical and valid consultation or testimony or both. your opinion and its limitations.” in this volume). identification with your retaining attorney (discussed more extensively in ). might extensive socializing with the retaining attorney—or. similarly. but two dimensions of the relationship pose potential ethical problems.16 THE PSYCHIATRIST AS EXPERT WITNESS. respect. thus. and admire him or her. discussed further in Chapter 3. Extending this idea. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals.. A pitfall in this area might be called forensic countertransference.
eliminate other subtler biasing factors. The fact that the position is more or less neutral does not. 33) However. you are expected to manage your countertransference toward the examinee or the examinee’s actions. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. such as overidentification with the judge or the “system. 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. 337). p. you may feel unable to examine objectively a child molester. you should refer the case. although not common in practice. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. 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. (p. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. Somewhat idealistically. of course. The situation does reveal some complexity. this effort may be termed nonsexual seduction. many expert biases are not detected either by the adversary system or even by the experts themselves. 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. an attorney. The . In this model the attorney lavishes praise on the expert. Similarly.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 empirical study aimed at obtaining a sense of the prevalence of this and other attempts at influence revealed that 35% of the admittedly small sample had experienced such efforts “apparently aimed at obtaining a favorable opinion” (4. The 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. promises many future retentions. There is no shame in this. as a clinician. for instance.” Note also that. If you are a victim of child molestation. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. This neutral position is highly desirable for that reason. bias can be exceedingly subtle. if the countertransference is unmanageable. of course.
The less admirable experts. if appropriately asked by the other side. likely be explored. Treater bias Money Entrepreneur SOURCES OF POTENTIAL BIAS Internal sources of potential bias Narcissistic Competitive Transferential “Love me” Gender Research Writing Personal Professional belief Religious/moral Advocacy Traumatic experience External sources of potential bias Attorney pressures Political Extra-forensic relationships “Limelight” Hindsight Confirmatory Source. the limits of your credentials. Therefore. yes. and their testimony is often unconvincing. p. the opposing attorney exerts the push of attempted impeachment. loyalty. while servants beat him with knotted towels.The Expert’s Ethical Universe 19 TABLE 2–1. the limits of your conclusions. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. Again. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. A scene from an old movie revealed an ordeal in which a prisoner had to walk balancing on a thick hawser with threatening swords on both sides. none of this information should be a surprise to your retaining attorney. and the limits of your testimony. the limits of your knowledge. and the hypothetical situations under which their conclusions would be different. and identification as above. In the process of cross-examination. expert testimony is like that. the true extent of their opinions. both pull and push must be resisted. defend those opinions passionately and fiercely on cross-examination. experts can be separated into two categories.” Your retaining attorney exerts the pull of retention. . Gutheil and Simon (6). the limits of your data. 261. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. Finally. Such candor may well enhance their credibility. having become inappropriately enamored of their opinions rather than of the truth.
20 THE PSYCHIATRIST AS EXPERT WITNESS. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. objectivity and fair compensation. 2001 Miller RD: Professional vs personal ethics: methods for system reform. 5. 2007 Gutheil TG. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. 2004 4. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. 1992 Lynett E. Gutheil TG: Expert witness perceptions of bias in experts. 2008 Katz J: The fallacy of the impartial expert. Bull Am Acad Psychiatry Law 20:163–177. Baker TO: Operator’s Manual for a Witness Chair. Gutheil TG: Clinical Handbook of Psychiatry and the Law. J Psychiatry Law 28:449–457. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 38. Baltimore. Bull Am Acad Psychiatry Law 20:141–152. 2004 Gutheil TG. 6. Martinez R: Forensic Ethics and the Expert Witness. American Psychiatric Publishing. 8. Psychiatric Times. 2. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 1999 Commons ML. Miller PM. pp 33. Int J Law Psychiatry 13:249–259. 1990 Brodsky SL. Springer Science & Business Media. Miller PM: Withholding. Simon RI: Avoiding bias in expert testimony. J Am Acad Psychiatry Law 27:546–553. J Am Acad Psychiatry Law 32:70–75. 2002 Gutheil TG. DC. WI. Psychiatric Annals 34:260–270. 1983 Appelbaum PS. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 1992 . SECOND EDITION References 1. Defense Research Institute. Prof Psychol Prac Res 33:307–309. McKinzey RK: The ethical confrontation of the unethical forensic colleague. New York. 36. 2002 Candilis PJ. 7. Commons ML. December 2004. J Am Acad Psychiatry Law 36:195–200. 4th Edition. Washington. MD. 39 Gutheil TG. J Am Acad Psychiatry Law 29:336–339. Williams & Wilkins. 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. Milwaukee. 3. Weinstock R.
2005 Rogers R: Ethical dilemmas in forensic evaluations. 1989 Weinstock R.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. Bull Am Acad Psychiatry Law 17:189–202. 1987 Schultz-Ross RA: Ethics and the expert witness. Greenberg SA: The expert witness. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. J Am Acad Psychiatry Law 36:167–174. the adversarial system and the voice of reason: reconciling impartiality and advocacy. J Am Acad Psychiatry Law 33:386–389. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. Leong GG. Behavioral Sciences and the Law 5:149–160. Hosp Community Psychiatry 44:388–389. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 1993 Shuman DW. Prof Psychol Res Prac 34:219–224. 1991 . Bull Am Acad Psychiatry Law 19:237–248.
This page intentionally left blank .
you should—be polite and supportive to your examinee. share a copy of your report with the examinee. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. In the forensic relationship. you may—indeed. your employer is less clear. treat. Although you are usually working for an attorney. or perform some other such intervention with him or her.CHAPTER 3 First Principles IN CLINICAL WORK. or some kind of class action). indirectly. Your duty is to the person for whom you are working. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. that is usually clear. considered for examination of competence to stand trial. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. When you examine a plaintiff at a defense attorney’s request. that person is the recipient of your opinions. but you are not required to preview your findings. as when a defendant. However. and compromised working relationship. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. regardless of what is going on with other experts or treaters. you may or may not owe a separate form of allegiance to that attorney’s client. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. ineffectual testimony. make recommendations. forensic work should thus always begin with the question. That relationship is also a source of certain pitfalls of bias. 23 . that attorney’s client. you still work only for your retaining attorney and. prescribe. the patient is your employer. is being treated in a hospital setting. discussed in the previous chapter and later in this chapter.
politeness dictates that you call the attorney Mr. If this issue is in question. This telephone call is far from a mere administrative formality. “Have you discussed this with your attorney?” This threw me. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. for whom am I working.24 THE PSYCHIATRIST AS EXPERT WITNESS. on purpose—he chose to characterize as “mine. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . the term your attorney will be used to refer to the attorney retaining you as an expert. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. Instead. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. this approach is self-defeating. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. informal discussion should be the format. or Ms. which—either by accident or. The Retaining Attorney’s Request After the first forensic question. Watch for this ploy. The Psychiatrist in Court: A Survival Guide. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. How you communicate with your attorney is important from the outset. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. It became clear that the cross-examiner meant my retaining attorney.” implying venality and bias. and mastery of professional jargon. clinical experience. more likely. not your personal counsel. In this chapter. This point came up in an actual cross-examination in a distant state. the topic is extensively discussed in the companion volume. I was asked. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. Smith until he or she invites you to call him or her John or Jane. Friendly. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. though this distinction may be intentionally obscured as a cross-examination tactic. refer to those sources.
but I am willing to become familiar with the issue”). The attorney can then take or leave this arrangement. Your Fitness as an Expert Should you. 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. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. however baseless? Are you now being investigated by the board of registration for some allegation. no matter how unfounded? Do you have a . have you been the defendant in a malpractice suit. For example. These issues go beyond mere conflict of interest. experience. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. such cases should be reality-tested for the attorney. In general. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. if you cannot or should not take the case. as indicated by publication. board certification. 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. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. and so on. This example is fairly obvious. but subtler versions of personal resonance with a case are not uncommon. that is. I recommend hearing about the broad issues of the case first and only then asking for people’s names. but the attorney wishes to retain you anyway because of a recommendation from a peer or because of the high regard in which you are held by local physicians. the attorney will not have revealed confidential information (the names) to you. “Look. The Question of Initial Bias The last chapter should raise the question: Is there an element of bias pro or con? Do you know the players. I don’t know a great deal about this specific subject. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. Therefore.. 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. personally.First Principles 25 chiatrist actually has some knowledge about.g. Note that your special expertise should exist against a backdrop of your general competence in the field. which is usually (but not always) clear-cut. the hospital. if your aged mother has just died in a nursing home.
knows that it was Smith’s lawyer who was derelict. Fees. If you write a lot. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. a criminal record (no matter how minor). . for example.” when everyone. not for their time and clinical expertise. the court record chidingly notes. juvenile offenses. .e.. Thus.g. 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. they are all corrupt). for the first time while on the witness stand) is a major expert sin. 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. or have been retained by one side more than the other? Review this with the attorney. have taken an opposite position or opinion. Belatedly surprising your attorney (e. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. for instance. Reviewing your own published work in a particular area is a worthwhile part of your preparation. 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. “Smith failed to plead . . Second.26 THE PSYCHIATRIST AS EXPERT WITNESS. . who are the strangers in the courtroom. As is often the case. are there cases in which you have testified on behalf of the other side. attorneys are invisible within the court record. Time. the more words you might have to eat on cross-examination. including the speaker. contradicts your present position. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. Do your best to address this possibility early. you realize that the more you write. in an economic sense. Similarly. unfortunately. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. . This issue is further discussed later in this chapter. the ultimate beneficiaries.. in the preceding quote. even if the issues are clinically or forensically totally different. 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.In too many medical malpractice cases. Finally. SECOND EDITION history of problems in the military. credentialing problems in the past.. (1) This quote is interesting from several viewpoints.
without children bursting in to share their Nintendo triumphs with you). I tactfully suggest that. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. whether for psychotherapy or expert witness time. nit pick. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. I know. Use timers or check your watch at the start and end of a piece of work and write down the time. “So. these conversations usually convey to me that the caller may not be able to afford me—there is no shame in that—and that I am certainly willing to recommend someone younger and cheaper. but you are made of finer stuff. and hires me anyway. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money.” Yes. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. same as you. this usually means that the client has hesitation or resistance about my rates. planning. Therapists who are quite capable of taking an extensive.” or “Nothing” (and wait for the attorney to crack. attorneys have timers on all their phones and charge by the split second. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony.” Other witnesses may take this further: “My testimony is not for sale. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. Like the judge previously quoted.First Principles 27 not the forensic context. and try to maintain that rate. ideally delivered in a calm tone of voice and not through clenched teeth. Doctor. The attorney either takes me up on this offer.” or “I am paid by the hour. or challenge the details. grits his or her teeth. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. allowing me to refer to a junior colleague. Second. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). meaning no offense. Doctor?” The only appropriate answer. Note also that time spent thinking. Indeed. First. Don’t charge for a 90-second telephone call confirming the date of . since the doctor-patient relationship is not pertinent to the examiner-examinee one. analyzing. choose a fee that you would not be embarrassed to state. 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. only for my time. or grasps the point. this is a pro bono case for you?”). I also recommend not “nickel and diming. and organizing your forensic assessment is part of the work. is “I am not being paid for my testimony.
Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. SECOND EDITION a deposition. in addition. or for reading a one-paragraph letter. How much work or time should you devote to the case? This depends on your schedule. Then. defaulted on payment) by their first attorney. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). but in my experience. the organization in charge of attorneys’ ethical issues. even if there is). Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. The attorneys. but your consultation must be free of investment in any form in the outcome of the case. Ethically speaking. 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 good folks on L. failure to pay is reality. when asked about your fees on the stand. shame. your fee should never be contingent. you are charging for time regardless of the outcome of the case. among others. 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. don’t take on the case. That august body opined that this was not an ethical problem but a business issue or a contract issue. Refuse any other arrangement. for instance.. I reported him to the Massachusetts Board of Bar Overseers.e.28 THE PSYCHIATRIST AS EXPERT WITNESS. You sell only time. when you design your own fee agreement. you can calmly state them without guilt. You give only testimony. ideally. basically consultative services. Keep your vacations in mind. respectively. It should.A. Urge your attorney to bring up your fees on direct examination to get it out of the way. it is unfair to your attorney. and give the dates to the attorney. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. 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. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. If you don’t have enough time. Owen Marshall. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. they referred me to small claims court. at the end of this book. I took my first major “stiffer” to court eventually and received some of my money. or other conflict. of course. Perry Mason. some of which never . are free to employ contingent fees. To novice experts.
how you feel about the attorney. In other cases. If you are. The Final Decision Putting together everything that you now know—what you charge. what your time permits. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. what your skills or knowledge support. You may be needed to evaluate a plaintiff (or a defendant.First Principles 29 lead to the courtroom. . working for the attorney or insurer is a far better idea than working for the client alone. or will your opinion be used by the attorney to strategize without a report. that role would be ethically incompatible with the objective testifying role. or is the matter likely not to go to trial? Are you going to be a reporter. You might advise the attorney on how to cross-examine the other side’s experts or litigants. You simply may be a consultant to the attorney on the merits of the case at the outset. someone who has to generate a written report. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. an individual client. Which comes first boils down to a matter of individual preference. for that matter). how free from bias or conflict the situation is—finally ask. your first task might be an evaluation of plaintiff. Will you be expected to testify at trial. You may provide rebuttal material for use by others. is more accountable. Do one or the other. often in orange-crate–sized lots. as a professional. nontreatment role is clearer. or even witness. 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. defendant. going to testify. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. your consultative. your attorney. 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. at some point. The usual next step begins with your receipt of written materials on the case. Among other things. rarely. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. Moreover. As a rule. 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. that is. testator.
the emotional pressure of the attorney’s desperation should not alter your objectivity. his dangerousness was the crucial issue. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. though you would not necessarily know this. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. a behavior that certainly did not seem all that threatening. you must ask the question. the minority are the ones who pose the problems. However. for that matter. the attorney may be employing you in a desperate attempt to clutch at some faint hope. 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.30 THE PSYCHIATRIST AS EXPERT WITNESS. In reality. of course. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. The attorney presented the case to me by telephone. or a tendency to want to withhold information. followed by review of the documentation. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. For example. Scheduling considerations may determine the first task. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. On perusing . There is nothing inherently wrong with this desperation. even in a consultative sense? In the initial telephone call. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. I recommend listening for indexes of venality. attorneys would call you only for ironclad solid cases in which they have every confidence. others prefer to review records first as a means of shaping their interview focus later (further discussion of this issue occurs later in this chapter). stating that the patient’s dangerousness flowed from his being charged with slashing tires. The point is perhaps an obvious one. Regrettably. does the attorney have merit? As a rule. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. In any case. you may be the ninth expert the attorney has consulted. the next task is clear. a tendency to assume you will give the “desired” opinion no matter what the material shows. compared with some other behavior. in relation to which. including by obtaining expert consultation.
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. which happen to be unfavorable to the retaining attorney’s case. Obviously. I telephoned the attorney and demanded to know why he had withheld this history. Some attorneys. In the first. wants to be certain you took note of a particular record entry or deposition statement. I decided those were near-enough equivalents. therefore. (Note also in this example the value of the previous record. a document often difficult to unearth but essential to the full evaluation. Underlying this issue is a more fundamental challenge for the expert: how far to go in negotiating with the attorney as to the limits of your opinion. for instance. and the arguments fall into two categories. based on the patient’s history of significant violence. faced with this disappointing fact. If he or she withholds or distorts information or lies to you initially. then you have to expect the same in the future. in a competence assessment of an elderly woman. A delicate balance must be struck between reasonable flexibility about. Expert witness work is hard enough without bad faith. however. the attorney wants to be sure you understand the import of certain data. Another less knowledgeable group of attorneys will be educated by your discussion. The attorney’s response was pathognomonic: “Why do you guys always have to go for the history? Why can’t you just take the person as he stands there and assess him as he is right then?” I elected to turn the case down. the benign category. or wants to call your attention to some information that has not been included in the original materials (such as a private investigator’s report that the attorney does not want to send you to preserve its privilege). Most ethical attorneys. but I emphasized that he and I needed to be clear about the fact that I would testify . and the result may be your withdrawal from the case.First Principles 31 the old record. the malignant category. however. the only safe course is not to work with that attorney. after you have given your verbal report. I told the attorney that she possessed “islands of competence. you give your conclusions. such pressure should be resisted. You cannot afford to embark on a course of work with someone such as this particular attorney. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. For example.” He wondered if that could be equally well expressed by “areas of competence. arguments are the attorney’s attempt to browbeat you into changing your mind. the wording in which your opinion is couched and the substantive alteration of your opinion. In the second. will argue with you at this point.” After mulling this over. based on your review of the database. Somewhat annoyed.) The second red-flag situation occurs when.
only the final opinion really matters. This was trivial. this rationale is especially ill-founded. I told him. One attorney nearly drove me mad by releasing dribs and drabs of material. multimillion-dollar will contest. 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. however. rather than Volume I. and testify to if asked. his senior partner wanted to deemphasize the subject by changing some wording. He asked me to use the dates of the depositions I had reviewed. and did not stop until I said. . I had prepared a 22-page single-spaced report. Volume II. and so on. This suggestion was acceptable. In another case. in a high-profile. shape or form whatsoever. the retaining attorney. I said I would change nothing. tactfully. in any way. under the specious rationale that this method would permit seeing the evolution of my opinion. wanted. I did not recall because I do not keep that kind of record. an opposing attorney asked me on the stand when I had received various parts of the database. This is the final opinion I am giving here and now. The attorney asked for major cuts or deletions. Agreement was struck. Your request should be global. I could not ethically omit it.32 THE PSYCHIATRIST AS EXPERT WITNESS. in an extended phone call. and withdrew from the case. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. Since only the final (or courtroom) opinion is determinative. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. after discussion I accepted that. In yet another case.” The attorney moved on to other matters. and I accepted. The attorney said he was offended that I should even think he was suggesting omitting something. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. Although delighted with this level of detail. “withholding” important data from the jury. the remainder of the opinion. to “go over” my report. hung up. even if some material is irrelevant and other parts are inadmissible. The attorney made a big show of my “concealing” this information. In a variant on this issue. finally. in fact. inclusion of somewhat negative evidence would show objectivity. that since I had read it and thought it relevant. and so on. It is important to ask for everything from the attorney. regardless of what may be precluded by rules of evidence and discovery. The negotiating discussion moved into argument. moreover. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case.
long pages of deposition testimony drone on about the exhibit. 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. As you read the complaint. “Look. 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.” 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. directed not toward the patient or examinee but toward the attorney. because I’ve got nothing. but you can only imagine it because the actual document has not been provided. check the documents you receive against the cover letter to be sure you have everything you should. I think this guy is probably not insane. you should consider some important points. Forensic countertransference is further discussed in reference 2. First. I find it helpful first to read the complaint so that you know what the basic issues are. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. and connections that can be checked against the primary record data and flag those in some way. for example. My own approach is as follows. it is up to you. Recall that a plaintiff can claim anything at first.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. This ethical dilemma arises when the attorney says. look critically for claims. facts. but I’d like you to do this evaluation on him anyway. 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. even data of dubious validity. In general. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. after your report. He was photographed doing the crime. you are creating a checklist. Second. if you will. each element of which may be confirmed or disconfirmed by other material in the database. This problem is a variant of a countertransference issue. I have found that attorneys for some reason often fail to send the exhibits to depositions. As you go through the documents. Either undertaking or turning down such a case is a defensible position. . a situation sometimes occurs that requires special mention. feel free to use it if it suits your own preferences. However. Referral to another or an additional expert also may be indicated.
then to check the record to determine whether the complaint or issue has any validity. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. the testator. accept it as a limitation. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. The Interview After reading the materials. . At this point. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. If the appropriate amount of time for your examination cannot be obtained. Given the complexity of many psychiatric malpractice cases. I read the medical records and clinical material or the equivalent. or with only the complaint reviewed. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. exert every effort through your attorney to obtain enough time to do an adequate examination. the witness. if you have not already done so. no matter how difficult the scheduling might be. you will want to interview the plaintiff.g. I strongly recommend reading large chunks of material at a single sitting. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. however. Some discretion.34 THE PSYCHIATRIST AS EXPERT WITNESS. and be prepared to acknowledge this constraint as a limitation on the data. your interview queries would thus arise directly out of the material. perhaps by a paralegal. or whoever is involved in the case (presumably. insanity in a criminal context). and selection of a safe environment may be required for examining potentially dangerous examinees. Such an examinee-first approach. 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. SECOND EDITION Second. you may also request that the attorney’s office create the timeline. cold. This permits.. the defendant. A laptop computer for this task may be quite helpful. third. you are familiar with basic interview approaches). Note for completeness that some experts like to start by examining the litigant first. for example. advance screening. the depositions or witness reports. including your own. you also may want to review relevant literature on the subject. and next to check the depositions (to observe how people retrospectively reported the facts under oath and explained their rationale) or other documents (such as witness reports to review what others observed). The attorneys on either side of the case may limit the interview time available. makes it harder to focus on hot spots of the case or areas of contradiction in the database.
when examining for the opposite side of a case. 3. exaggerating symptoms. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus.First Principles 35 If the witness lives locally. focusing on making a recording. Not uncommonly. the plaintiff ’s attorney on cross-examination asked whether it was not true that my opinion was reached without “the benefit of my examining the plaintiff. then to examine him or her again to clear up matters raised by the written material. For example.” was appropriately disconcerting. Examinees who must travel to see you should. If you are unable to prevent the above intrusions. be spared this burden. Jurisdictional rules may make one or all of these procedures mandatory. the absence of this datum must be factored into the opinion. although this irritates some examinees more than writing during the interview. Verbatim material also can be obtained in this way. presumably. 2. unobtrusive note taking probably represents the optimum compromise among choices. then to read the database. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. For a number of circumstances. for some experts. an audiotape or videotape of an interview may be constructive. However. Note that when you are retained by the defense and wish to examine the plaintiff. This decision is legitimate but bears consequences. it is certainly beneficial for teaching and for self-review for quality assurance. and suggestions from the attorney present may contaminate the process. The fundamental reasons are as follows: 1. “You wouldn’t let me!. more authentic) responses to your inquiries. cuing. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . as a rule. but I strongly recommend opposing their occurrence through your attorney. inhibit free-ranging inquiry.” My immediate response. it might be effective and appropriate to examine him or her first. Inappropriate interruptions and objections. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. Examinees commonly play up to the audience or recording device. however. to have the interview audiotaped or videotaped. in one case. based on the belief that such an examination can only hurt the case. the expert will receive a request to have an attorney or paralegal present during the interview or. that side’s attorney may refuse to allow you to do so. 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. alternatively.
. p. as when the complaint boils down to.. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e.. in the unpublished 1996 case of Lailhengue v.g.. behind the examinee). is whether the case is fundamentally plausible. and I want to sue him.36 THE PSYCHIATRIST AS EXPERT WITNESS.Attorney Larry Cohen (personal communication. warn once. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. If the attorney attempts in any way to cue or coach the examinee. 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. Plausibility The first question to ask of the case.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney... Mobil. 1997) at the University of Michigan Law School reports that some attorneys consider it part of attorneyclient privilege to instruct the client to deny that the coaching ever took place. and so on? . Do the deviations from standard of care sound hokey. but the following vignettes make the point clearly: For example. distortion. be it civil or criminal. March. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. a mass tort in Louisiana. The following are four of the principles that I apply as a generic framework for this purpose. . a psychiatrist interviewed plaintiffs with an attorney present. (4. 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. “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. 322) To offer a structure for this stage of the inquiry.
whereas the arresting officers and other disinterested witnesses describe a calm and rational person just after the crime? Do other parts of the total database present corroboration or discorroboration of the claims. in a sexual misconduct claim later proven groundless. how might it have occurred alternatively? Is there another way of explaining what happened. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. such as sexual misconduct. even if asked to do so or tempted by medical ne- . remember not to offer any treatment or treatment recommendations to your examinee. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. about the historic English crime. however. Alternative Scenario In the film The Great Train Robbery (Crichton M. 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.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. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. Finally. or the alleged damages? For example. The notion of the alternative scenario can be essential for assessing civil claims. 1978). observations. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. The phone records aided in challenging the claim by providing a time stamp. the following dialogue occurs between the trial judge and Edward Pierce. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. she assumed the doctor was not present and could not refute her claim. as well as disability evaluations and similar tasks. the outcome. 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. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. She had apparently established these referents by calling the office and receiving no answer. If the situation did not occur in the manner claimed. or for some criminal claims of insanity. MGM/UA. he had made several outgoing calls during the time period of the alleged molestation.
that is. the court). SECOND EDITION cessity as treatment issues emerge in the interview. what we talk about here is not confidential because I am not your treater. I have been retained by (your side. compare the consent form in Appendix 1. 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. please sit down” but before anything substantive has been said: Before we start. Note the fully intentional structural resemblance of the above paragraph to informed consent. Third. As you are interviewing the examinee. And finally. 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. there are some things I need to inform you about. I am entitled to make note of that. Do you have any questions about what I have told you so far? If the person has questions. Other warnings. and treatment offers are inappropriate. defendant. Second. or in an open courtroom. hurt your case. in both civil and criminal cases. Her emotions were strong and appropriate to the content. if not. you are attending to his or her demeanor and its relation to credibility. you will interview the subject (plaintiff. recall that anyone can really be fooled. she had plausible answers for all my questions. unlike what you may be familiar with from other doctors or therapists. restroom) at any time. move on to the substance of your interview. as noted early in this text. Only when I subsequently read her deposition did her entire . but since I can only be useful if I am objective. answer them as best you can. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. you do not have to answer any of my questions. the other side of the case.38 THE PSYCHIATRIST AS EXPERT WITNESS. The relationship is not a medical one. you can ask for a break (water. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. Is the patient convincing and plausible? Do the words match the music. possibly with reporters present. and if you do not. my testimony may help your case. what you say may come out in a report. First. and you must keep several issues in mind. and others) as part of your exhaustive review of the database. in a deposition. such as informing the examinee which side has retained you. You will be challenged to weave interview data into the totality of the case. or have no visible effect on your case—only time will tell. Fitting Together the Interview Commonly. seem to be called for out of fundamental fairness to your examinee.
Besides serving as a valuable lesson in humility. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. it only means that you’re being conned into thinking that you’re not being conned. because the defendant is not causally responsible for what happened earlier. 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 .e. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt..First Principles 39 case fall apart. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. For example. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. believe deeply in their position. especially when they themselves. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. but then Dr. The plaintiff ’s failure to take those remedial steps does count against him or her. 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. because of their psychopathology. The Causation or Connection Dilemma In many forensic cases. on the other hand. a defendant may be mentally ill.” In the civil system. Such distinctions are extremely significant in the hard monetary realities of the legal case. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. the preexisting condition must be deducted from the damages. but did that deviation cause the damages. particular plaintiff vulnerability for which the defendant must be held responsible. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. Smith did X at this point. the case was highly instructive: interviewees can be extremely convincing. Jones did Y and the plaintiff did Z. Similarly problematic is the matter of intervening causes: “Dr.
two major approaches apply: 1) shred or have a reputable company shred the paperwork. they may serve you to recall the case at a later point for research or publication purposes. 63 Ohio Misc 2d 533 at 534.” there may be subsequent posttrial motions. mistrial claims. although it has not yet gained broad enough acceptance to be generally admissible as evidence. and so forth that require revisiting the materials. or incident. and what the exacerbations were of preexisting conditions. appeals. 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. 1994 Gutheil TG. 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. What portion (usually. or 2) return the materials to the retaining agency. if any. what the results were of subsequent events. References 1. and then has other symptoms or more of the same symptoms. If you are discarding case materials. keep the latter indefinitely. In addition. and your interview notes. 2. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. work by Pittman and Orr (5) on differentiating serial trauma shows promise. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. Another good rule is to discard. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2002 Gutheil TG: Reflections on coaching by attorneys. SECOND EDITION were of a particular deviation. American Psychiatric Publishing. 2003 3. Even if a case seems “over. with permission. Or. DC. then is sexually abused by a treater.40 THE PSYCHIATRIST AS EXPERT WITNESS. J Am Acad Psychiatry Law 31:6–9. Further research may reveal other promising approaches (6). event. . Kirby v Ahmad. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. because they would be hard to replace. Washington. all case materials except your reports.
MD. 1990 Suggested Readings Appelbaum PS. 2007 Borum R. Medical Chances: How Patients.First Principles 4. Lippincott. 1993 Deaton JSD: Toward a critical forensic psychiatry. Guilford Press. Baltimore. 1993 Bursztajn HJ. Williams CW. 1991 Lees-Haley PR. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Edited by Rogers R. Families and Physicians Can Cope With Uncertainty. New York. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. New York. Williams & Wilkins. in Clinical Assessment of Malingering and Deception. Hamm RM. et al: Response bias in plaintiffs’ histories. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Chapman. 1997 Pittman RK. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Feinbloom RI. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. New York. Otto R. J Psychiatry Law 21:33–76. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. J Am Acad Psychiatry Law 31:232–238. Guilford Press. Assessment 4:321–324. Bull Am Acad Psychiatry Law 21:37–52. 2008. Brain Injury 11:791–799. 2003 Group for the Advancement of Psychiatry. Routledge. 5. et al: Medical Choices. 3rd Edition. New York. Brunner/Mazel. 4th Edition. J Psychiatry Law 24:3–25. Zasler ND. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. 41 6. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. J Am Acad Psychiatry Law 33:158–175. 3rd Edition. 2005 . & Hall.
This page intentionally left blank .
2) breach of duty. 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. Sometimes forgotten is the fore43 . But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. Generally. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. 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. this bias means that the outcome of an event appears as though it had been far more foreseeable. you already know the person is dead. In a suicide malpractice case. than was actually so before the event in question occurred. More practically. and 4) proximate cause. for example (the most common claim against mental health professionals). The discussions within this chapter should be considered an introductory survey. 3) injury to the patient. once you know it has already happened. in this chapter.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of
Types of Typical Cases
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-
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.
Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
” However. any forensic document) without making some sort of notation of what is significant. you read the depositions of witnesses. 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. On some occasions. I find it valuable to look at the social service history. opposing experts. make some sort of notation each time you read through the record. Next. or a folded corner of the page. There is something of a translation burden on you to read between the lines to determine the issues. To save yourself reading everything from scratch each time. of your thoughts and reactions. these may not necessarily be the questions you would want to ask. if present. 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. through your retaining lawyer’s permission and intercession. 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. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. but depositions consist of attorneys’ questions to various parties. and others. . or whatever. of what this record entry contradicts or supports in the deposition. for example. “This is so clear and memorable that I will naturally recall it later. 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. of any queries or signs of missing data that the record generates to be checked later or elsewhere. defendants. you may be tempted to say to yourself.Types of Typical Cases 47 the tests ordered. an underline. of course). plaintiffs. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. a marginal scribble. When reading the deposition. The point may seem obvious. In the process of reading. a post-it. nor are the queries necessarily posed the way you would do so. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. This notation can be on a separate sheet of paper of similar notes. the next time you read this document for deposition or trial may be 7 years away. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. after the records. as different things may strike you on subsequent review. you are seeking consistency and credibility. the expert may draw conclusions from the record alone. as a separate document. you may have to pose your own questions to the parties. Because keeping a medical record is itself part of the standard of care.
but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. remember to consider diminished capacity as an intermediate condition. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. you can be drawn into the prose by the unfolding drama therein recorded. it is inappropriate to call or write directly to the opposing attorney. These unethical conversations usually have an informal tone: “So. and records of any treating clinicians from points close in time to the alleged acts. “I think you should talk to the retaining attorney. Doctor. the more helpful it would be in forming your opinion. data gathered at the time of the alleged act.48 THE PSYCHIATRIST AS EXPERT WITNESS. or expert. but still relevant. friendly approach into letting your guard down and discoursing freely on your opinions. namely. eh?” Presumably. a case wherein the defendant had or has a major. is historical material. Is this defendant someone who seemed to show . and so on. statements of the arresting officers. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. All communications beyond the most mechanistic (giving the opposing attorney’s secretary directions to your office for a deposition) should be channeled through your attorney. On occasion. Of second-rank importance. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. litigant. The truly challenging case lies between these extremes. SECOND EDITION Although the more information gathered. in my (and almost everyone’s) view. Out of the entire panoply of available material on a criminal responsibility case. For example. The appropriate response is. To read critically. exert the effort to stand back from the process. Criminal Responsibility Cases In cases of criminal responsibility. what do you think about this amazing case. you may confront the classical poles of the issue. In those jurisdictions where the issue exists. These would include witness and victim reports. weighing the logic of the deponent’s responses. Because of the flow of material and its often fascinating content. 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. are the most significant. your attorney’s confidential trial strategy. while reading a deposition. you are lulled by this informal.
The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. an unrelated accompaniment to the crime. an injury from which he recovered rapidly without lasting effect. a surprising number of individuals avoid treatment. The most valuable dimension of the interview is obtaining previously unrecorded history and the defendant’s own self-reported rationale for his or her actions and own description of the internal mental state at the time of the act. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages.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. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. the cause of the crime. The novice expert should become familiar with useful publications on the subject (7. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. the result of the crime. some on . who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury.8). In one case. malingering is especially common and problematic in this assessment. the interview in a criminal responsibility case has the least power of all the data collected. for example. 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. although mandatory and irreplaceable. 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. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. Because of the seriousness of criminal penalties. as with all forensic evaluations (6). a plaintiff drank from a chemically contaminated bottle and burned his mouth. I find the interview for an emotional injury case to be of primary value. and so on. 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 interview also gives you a chance to assess what might be called a sense of proportion. Finally. All the interview data must be fitted to the totality of the database.
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. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. A question you should ask your interviewee is. preexisting vulnerability. The response “My attorney told me not to” conveys its own obvious message. may be relevant. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. only to find that the goods are legitimately accompanied by a receipt. 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. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. as a result of the mugging. Not only might these provide a context for the injuries claimed. with intrusive flashback memories. in regard to which the defendants must “take the plaintiffs as they find them”). Next to the small table where we were sitting. I . too. SECOND EDITION their own accord and some when given this advice by their attorneys. especially idiosyncratic history.. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. History. The interview took place in his basement recreation room. but you might discover on questioning the plaintiff that the extreme subsequent trauma and dysfunction flow from a history of sexual abuse or public exposure and humiliation. however. These “critogenic” (“law-caused”) harms often cloud the picture of the claimant’s actual damages caused by the defendant(s) alone (9) and must be factored out. consider the so-called strip search case in which store employees suspect the plaintiff of shoplifting goods and perform an embarrassing or inappropriately confrontational public search or semi-strip search. In this situation. The shopper then may sue the store for harassment and consequent emotional harms.50 THE PSYCHIATRIST AS EXPERT WITNESS. Such a search can be embarrassing and humiliating to anyone. and startle responses. For example. Finally. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. He claimed to have full-fledged PTSD. avoidance. you again often encounter the previously described problem of factoring out the effects of serial trauma. “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. This history may represent the plaintiff ’s “thin skull” (i.e.
he would have said calmly. On the surface of his story. ate like a lumberjack. dying. and did not dream. then you get the case. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. or crime has generated publicity first. He slept like a log. who. He gave the impression on interview that if you fired off a . There is a fundamental asymmetry about media coverage in almost every case. He was strapped into his seat. but at incredibly high levels. however. it turned out. it seemed to me that this incident would induce PTSD in a stone statue. usually not. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. without warning. the former passenger was revealed as a serious. the case certainly seemed meritorious in theory. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. on careful inquiry. which the average member of the public really doesn’t understand.Types of Typical Cases knew this because. injury. This case also illustrates the maxim. 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. the jury ultimately decides. looking straight down past his toes. that is. of course. don’t assume—examine. had no signs of trauma whatsoever. As the “moving . and. Boston Harbor with freezing. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. the plaintiff or prosecutor can say anything. unimaginative. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. had been in the front row of seats just behind the break in the plane. It is. I myself jumped in my chair. the nose of the plane fell into the harbor. One of my cases raised this issue. This passenger. perhaps so. not totally probative.357 Magnum close to his ear. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. you may be asked to review a case that has been extensively covered in the media before you have been retained. High-Profile Cases At one point or another. therefore. fellow passengers. stoic fisherman. yet the observation is valid. An apartment dweller sued her landlord for failing to respond to the infestation. he saw a jagged metal edge and below that edge. In a famous incident. Initially. to get the actual data. 51 This observation was potentially valuable and worth recording. the alleged malpractice. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. On detailed examination.
for example. (Chapter 9. and spill hot coffee over their thighs and sue McDonald’s. until it is proven in a court of law. the standard references the average reasonable . of course. the defense attorneys cannot answer the media’s questions. 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.” In another case. The defense attorneys must say “no comment” each time.” in this volume provides more reliable methods of publicizing your practice. Ninety-nine percent of the time.52 THE PSYCHIATRIST AS EXPERT WITNESS. but so do a number—perhaps a greater number—of venal witnesses. Therefore. however.” the attorneys have to create the case from scratch. in hopes that some of that public will later become jurors. lest your review should begin with a one-sided perspective. A plaintiff can say to the media. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. consciously or unconsciously. for example. None of this trumpeting means anything. because they don’t want to give away trial strategy. to influence the public powerfully in advance. By doing this. you have to be alert to this potential biasing factor and be aware of the media asymmetries. Some attorneys may try. SECOND EDITION parties. “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. selling testimony instead of time. pushing the case for all it is worth. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book.) Another stigma of the hired gun is the counsel of perfection. rip off the covers in moving cars. but this principle may be readily overlooked in a media frenzy. there is no case until it is brought. “Developing and Marketing a Forensic Practice. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. In malpractice cases. 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. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. you simply may be reading your newspaper before you are asked to consult on a case. In short. 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). Even though you may try to tune out the media. the plaintiff and prosecutor inevitably bias the public’s perception.
the likely explanation is that the treaterexpert made it up to suit his views of this case. For example. I personally have never heard of or read that standard anywhere. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. it’s a very serious situation. Some experts believe that physicians are never wrong and always justify whatever the physicians do. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. the counter to such claims often begins with the phrase “Well. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. 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.” Many “good ideas” theoretically might have contributed to the patient’s care. Indeed.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. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker. The hired gun often advances a perfectionistic standard as though it were the average. 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. in the real world. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. The real issue is: does the standard of care require more. . Waffles are evasive. An even more malignant twist is the made-up or artificial standard.. but malpractice litigation hinges on what is required by the standard of care. “If the care had been adequate. Another variation on this theme is. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. whereby the hired gun whips a standard out of thin air to justify his or her position in the case.. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. “They (the defendants) should have done more. Anyone always could have done more. but no one lives real life like that.” This testimony is a classic hired gun claim.
54 THE PSYCHIATRIST AS EXPERT WITNESS. of unpredictability. 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. but. and where I believe the standard of care was breached was that the patient. but that is the answer to a different question. a reasonable history. I am not in a position to tell you that that would be the only choice. he has taken in despair 10 lithiums some years back. and that is frequently the hallmark of the hired gun. In the following example. there is a lot of despair and a great deal of thought disorganization in the patient. The entire answer took four full deposition pages. he gets frightened. the mental state and what’s gone on in that patient’s mind is very uncertain. More to the point. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. goes all the way to [another city]. it seems nearly impossible to extract the actual opinion from the thicket of prose. 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]. Note that this entire chunk of testimony is one run-on sentence. rather than ideally. an hour before that or less signs a 3-day statement and then just disappears. we don’t know whether he stops or doesn’t stop and get [drug] or not. . the standard of care required that he be] involuntarily admitted to a hospital before [month] of [year]? Answer: It is my opinion that one of the possibilities that should have been seriously considered would have been an involuntary hospitalization. It certainly should have been considered. Also note that the failure to consider a valid option indeed may constitute negligence. specifically. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. Is that a yes or a no? In fact it is neither—it is a waffle. reasonably would have been. he should have been [that is. then committed suicide. an emergency petition ideally would have been. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. a patient had escaped from the hospital. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. Getting the feel for how the waffle works takes a certain amount of reading of case material. That was the answer in toto. that this is a patient with some history of a. Note how that witness actually avoids responding. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. took some blood pressure pills one time in [city]. actually.
pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. Science 211:453–458. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. which makes sure the patient is safe within a structured environment. 1975 Tversky A. foresight: the effect of outcome knowledge on judgment under uncertainty. et al: Decision-Making in Psychiatry and Law. 3. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. J Exp Psychol 1:288–299. 1981 Gutheil TG. Shuman DW. Edited by Simon RI. Conceivably. a trend of such waffling answers in deposition does set off my hired gun detector.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. 7. Finally. Bursztajn H. for better or for worse. II: clinical uses of legal standards in the interpretation of subjective data. In fairness. we may be dealing with an incompetence issue. American Psychiatric Press. 4. . with impunity. Kahneman D: The framing of decisions and the psychology of choice. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. 2008 5. but that doesn’t mean that it’s without supervision. MD. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. New York. Guilford Press. DC. 1991 Fischhoff B: Hindsight. I: malpractice prevention and the use of subjective data. Bursztajn H. note that one cannot. 6. Int J Law Psychiatry 6:331–350. References 1. Washington. Gutheil TG. Brodsky A. and that includes they would be safe within or without the community. 3rd Edition. 2. Gutheil TG. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. Int J Law Psychiatry 6:317–329. we must consider another possibility regarding the above examples. 2002. Yet. I would prefer never to assume malice when incompetence would serve as an alternative scenario. Williams & Wilkins. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. 1983 Bursztajn H. Baltimore.
2nd Edition. 1999 Gutheil TG: Fundamentals of medical record documentation. psychiatry and the law. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. 2004 Knoll J.” J Am Acad Psychiatry Law 35:112–117. J Am Acad Psychiatry Law 34:215–223. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. Gutheil TG: The problem of evasive testimony: the expert “waffle. DC. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. Law and Human Behavior 19:493– 505. American Psychiatric Press. Viglion DJ. American Psychiatric Press. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. Bull Am Acad Psychiatry Law 20:409–418. THE PSYCHIATRIST AS EXPERT WITNESS. Legal Studies Forum 9:41–53. Washington. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. insanity. DC. J Psychiatry Law 28:5–18. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. 1992 Gutheil TG: A confusion of tongues: competence. 2005 Simon RI. et al: Detection of malingering in competency to stand trial evaluations. Bull Am Acad Psychiatry Law 21:23–36.56 8. Washington. Psychiatry 1:26–28. 1995 9. Psychiatric Services 50:767–773. 1993 . SECOND EDITION Gothard S. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Meloy JR. 1987 11. 2000 10. Psychiatr Clin North Am 17:439–446.
From the viewpoint of the expert. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names.CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. Note that some jurisdictions practice “trial by ambush” without expert discovery. use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. 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 two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. if any. Under some circumstances. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. the attorney will likely write the actual prose of the 57 . preparing for what to expect from the various witnesses and documents. In both cases. there is the period known as discovery. Attorneys probe and define the limits of their cases.
. the expert. 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. that is an attorney’s function. either from clinical evidence or experience or from facts in the database. However. I advise you to withdraw from (or refuse to take) the case. based on his or her interpretation of the rules of evidence. In addition. attorneys sometimes ask you for your tax returns of the last 5 years. 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. This approach saves you from having to retract misstatements on cross-examination. it is always unethical. Opposing attorneys usually follow one of three agendas. The Psychiatrist in Court: A Survival Guide. If you discover this to have occurred. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. or some combination of the three: getting your opinion. Do not attempt to decide what is or is not objectionable yourself. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. SECOND EDITION answers for you. you do not want to be associated with this attorney. 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. obtaining admissions. On occasion. hyperbole hurts you. read every such document before it is turned in. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. For example. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). guided by your input as to what you expect to testify to at trial. without retaining you at all. even worse. Depositions The second major area of discovery is the deposition. and painting you into a corner.58 THE PSYCHIATRIST AS EXPERT WITNESS. reasoning that they can always modify their opinions at trial when the right questions are asked. review Chapter 5 in the companion volume to this book. the interrogatory is sworn testimony. It is critical that everything in your interrogatory be something that you have already decided you are able to support.
as the Anglo-Saxons phrased it. the attorney is not averse to discovering precisely those points that will help his or her side of the case. if any. admissions and concessions of points or . The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. select rebuttal witnesses. the attorney. over and above what has been conveyed in reports or interrogatories. On the other hand. or a full-fledged repeat deposition. however. during the course of the deposition. and deadlines may dictate this suboptimal condition. who is in turn obligated to inform the attorney on the other side of your new opinion. Just answer the question. for instance. The attorney can then prepare cross-examination. the plaintiff. a witness’s deposition or medical record that you had not seen before your own deposition. to empty your wordhoard. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. inform his or her experts about facts or issues to pay attention to. and so on. In this latter context. This information may or may not trigger a supplemental step for you in the form of an interrogatory. time considerations. This discovery function is a completely legitimate task and one with which you should cooperate fully. Attorneys also stress that the deposition is their one chance to find out what you have to say. This ploy usually can be defused by your attorney. taken before the entire database has been acquired or reviewed by the experts. the defendant. as a way of ensuring that your opinions may be brought out at trial. scheduling problems. but not ideally. 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). you are ethically obligated to so inform your attorney. the police. 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. When you subsequently receive. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. and so on.Discovery and Depositions 59 Getting Your Opinion First. a telephone conference. Of course. but this is a subintention within the larger discovery framework. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. depositions are occasionally. 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.
Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. conceptually. On arrival at the hospital. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. even though it was the preadmission history. any contradiction is obviously damaging to your credibility: “You swore this now and that then. not the mental status by itself. Truth. Indeed. The answer was no. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts.60 THE PSYCHIATRIST AS EXPERT WITNESS. much was made of this testimony. although the history. competence. insanity. what are we to believe. . The points may relate to guilt. negligence. 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. based on paranoid-sounding content. A patient was committed because of threats. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. This procedure elicits sworn testimony.. fairness. Accuracy addresses the clarity of your vision in relation to the known facts in the case. of course. also under oath. or damages—the entire gamut of forensic possibilities.e. however. raised many possibilities. In a wrongful commitment case against the hospital. His mental status was not particularly demonstrative of symptoms of mental illness. You are locked in to that testimony. At trial. your) side of the case. under oath. and accuracy (3). of course. so that your opinion is constrained or limited in a way that decreases its impact. is the final standard. SECOND EDITION views detrimental to the other (i. that justified the admission. Your Goals for the Deposition One scholar has described the witness’s goals as truth. When you later give testimony in court. 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. For example. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. Doctor? Were you lying then or are you lying now?” Your vigilance to being painted into a corner by the deposing attorney is justified by the fact that there are many subtle variations of this locked-in approach. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. to kill coworkers. that is. he denied to the admitting physician that he had any violent intent.
several factors urge clearing substantial blocks of time for deposition. it is an essential part of the evolution of a case and thus your role in it. 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. Unfortunately. your opinions (and their limitations). More details about this necessity are discussed later in this chapter. . as noted above. If you do not go home after a deposition feeling tired and drained. The expert should clear a full day for the deposition to be on the safe side. Rather. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). and vigilant at all times. try to eliminate distractions. will spend hours inching through the expert’s credentials. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. you must be rested.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. aware of the serious weakness of the substantive aspects of their case. A small number of attorneys attempt to wear down the expert by sheer passage of time. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. you were probably not paying sufficiently close attention. looking for dirt before even addressing the instant case. Prepare for this. hoping to hit the key points if only by accident. and your planned testimony. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. however. Still others. this also takes a toll on the court reporter. another deposition date can be scheduled. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. focused. Get enough sleep the night before the deposition. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. Occasionally. if more time turns out to be required. To do your job. alert. 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. intense concentration sustained over hours is hard work. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge.
in the following example. Question: So. his act could . yes. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. therefore. Question (attorney for staff member): Knowing what we know today. 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. warning. 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. let me answer all three components. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. “The patient gave no sign. but it is quite risky and may compromise clarity. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. they have to enter into a dialogue with their patient. ask to hear it again or have it read back. I am serious. 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. Note. the case manager’s lack of understanding might be negligent. If there is the slightest doubt. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. or you knew and didn’t act. to be an appropriate way of determining competence in the clinical situation. or evidence of a propensity for violence.62 THE PSYCHIATRIST AS EXPERT WITNESS. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. it is serious. in order to determine competence. yes. I don’t—I wouldn’t agree with you there. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. no. you can give a useful compound answer to a compound question. First. A more effective answer might have been. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well.] Answer (by case manager): I don’t think I would agree with that. so you were negligent. which I codirect. If the question is compound or complex. Second. On rare occasions. 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. And the third part of your question is. ask that it be broken down. so you were negligent.
[The witness sets her own standard of care. not the individual element. the answer. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. of course. vulgarity. the totality of symptoms did so). The following excerpt of testimony given by a naive fact witness. the patient manifested rapid press of speech. that the witness specifically remembers such a detail. a patient with apparent bipolar disorder challenged an involuntary commitment. challenge. moreover. [This is not an answer to the question. the witness should decline to answer yes or no to such a question. and grandiosity. When seen. The deposing attorney inquired. from a previous shift—is universal practice. Obviously. But this witness has set a standard for herself: “hope for truth.Discovery and Depositions 63 neither be foreseen nor be prevented. Gee. or did you make that entry based on information given to you by others? [These are. making a chart entry based on what you were told by other staff —for example. of course. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. I sure hope I saw him because I usually don’t write things unless they are true. any good nurse does that. “I don’t recall.] Yet another deposition tactic is what I call gerrymandering the data. which might be used against her nursing colleagues. “In a vacuum. no.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. testifying 5 years after a suicide. not the only possibilities. . Question: Did you observe [patient] attending those meetings. or weaken certain conclusions (4). right. It is unlikely. 5 years and hundreds of patients later. reveals the hazards of too effusive. did not constitute sufficient evidence of bipolar disorder (although. too discursive. paranoia. in a vacuum.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. In addition. Her answer ignores the fact that the record does not always note the source of the clinical data. and too extensive an answer to deposition questions.] Answer: Right. Note that an excellent and self-contained answer to such a question or line of questions is.” would be perfectly okay.] Answer: Gee. Clinical data also can be cut into discrete segments to attempt to refute. For example. you write down what you have observed. social obnoxiousness in various ways.”] Question: Is that the procedure in which you make notes. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. not what others have told you? [The attorney tightens that very screw.
3. 2. Also remember to listen carefully to the objection. and carefully for the stenographer. Correct any errors.” “no. incomprehensible questions. each speaker should finish before the other begins. Overlapping dialogue is awkward or impossible for the reporter.” “I don’t recall. but sometimes they do so deliberately to distract you or to break your concentration. lack of time frame. insist on a time frame. SECOND EDITION The Pregnant Pause After the question is asked. They are. instruct you not to answer. in essence. pause a moment. If any of these summary phrases do not trigger recognition. Spell unusual names. whose written record will be the actual form of the deposition in all future contexts. (See also Chapter 5 in the companion volume. the trap of double negatives in the questions.” reflect a moment on why the time frame might be important in relation to that particular question.” or a short narrative response that contains the question so that the response. Pausing allows you to replay the question in your head and to think about your answer. terms. review the corresponding discussions in the companion volume. Some key points made in that volume are the hazards of guessing. in effect. and the importance of speaking slowly. Speak slower than usual. not your glib response in the deposition room. clearly. The Psychiatrist in Court: A Survival Guide. and other myoclonic responses. shrugs. Do not tolerate this interruption. “yes. and the like. immediately correct .” “I don’t know. nods. drugs. Answers Deposition answers are drawn from a surprisingly shallow pool. in the belief that your pause means you have finished. Insist on finishing your answer to your satisfaction. your attorney may be trying to call your attention to something. because the stenographer cannot record winks. Giving the stenographer your business card before the deposition is a highly useful courtesy. Other useful basic tips include the following: 1. cannot be quoted out of context. Recall that the written transcript is the durable version of the deposition. usually accidentally. a garbled record from too-fast speech wastes everyone’s time and money. Be careful about overlapping speech. If your attorney says. If your concentration slips and you give an answer that you later believe was wrong or even misleading. Attorneys may sometimes interrupt your answer.64 THE PSYCHIATRIST AS EXPERT WITNESS. The pause also allows other attorneys to object. “Objection.) Your answers must be verbal and aloud. who cannot take down two simultaneous conversations and produce a clear record. shakes. and so on. or you might infer something useful from the type of objection posed. not only for the spelling of your name but for contact after the deposition for questions.
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. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you.” (3. As a deponent witness. . for example. 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. Two points about this problem should be kept in mind. pp. exercise this option. the deposition may be paused for that consultation.) When to Throw It Away In my consultative experience. I tell a lie. 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. he could accurately answer in the negative. However. Therefore. . I’d be lying. . No. When in doubt. but I can’t say that any of them were [sic] precisely like this one. To err is human. the deposing attorney may ask.. . this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. where you are retained by the defense. would you agree that a patient’s sui- . “Doctor. this may be phrased as when to throw away the “throwaway” questions. Second. the entire deposition takes place under oath and under penalty of perjury. Therefore..6].If I said that. (The question of coaching is more extensively addressed elsewhere [5. . First. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer.” Of course. In a suicide malpractice case. I find that the most common error the beginning expert makes in a deposition is the failure to concede an obvious and irrefutable point out of misguided loyalty to his or her side of the case.Discovery and Depositions 65 it on the record. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. . the doctor might answer: “Well. but leaving the error on the record means having to retract it on cross-examination. if you are concerned specifically about a matter of privilege that may govern your answer.To tell the truth.. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one.
SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. check your watch. Doctor. Occasionally. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer.66 THE PSYCHIATRIST AS EXPERT WITNESS. an attorney may look ostentatiously at his or her watch and say. thinking about dinner and work to do later. the novice witness relaxes and loses focus. Your retaining attorney may also get into the act. now begins to fire rapidly at the witness. but you know enough not to get involved in that “thing. The attorney asks a question. Subjected to the silent treatment.” At that point. still. is “It ain’t over till it’s over. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. wait until it gets ridiculous. have some water. in the colorful argot of the national pastime. having inexplicably found his or her second wind. “Just a few more questions. by the way. and we’ll be done.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. on the record. With an encouraging smile the attorney looks expectantly at you without saying anything. It is not the defendant’s negligence that is at stake in this situation but your credibility. and move on. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout.” Wait to relax only after the stenographer has put away the machinery. . then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. may attempt to get some off-the-record insight literally in the doorway. Quibbling over the possible exceptions or equivocating in some way helps no one. but the lack of the note did not cause the suicide. Remember that the failure to write something down may be below the standard of care. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. make the concession. not unlike some patients in psychotherapy whose doorway pauses—“oh. When the answer is that clear. throw it away. of course. an attorney. just one more thing”—contain vital material. influenced by the TV show Columbo. Curious Questions The absence of a jury and of a judge to rule on the appropriateness of questions sometimes gives deposing attorneys the feeling of freedom to ask questions that might be disallowed by a judge or be seen as impertinent by a jury. and you answer it. The moral here.
The only valid answer is that those questions are outside your area of expertise. but I’m in favor of sensitivity.. 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. This method sometimes involves carefully answering the question that the attorney should have asked. No expert is expected to be an expert in everything or to remember everything. I find your question a little confusing. that we can’t isolate ourselves with notions of “I’m not part of our society.” . Some questions are curious because the attorney appears to be flailing at. if you’re grossly suicidal and you have access to guns and drugs and alcohol. 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. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can.” in a manner to ignore those feelings.. rather than asking about. they often fail to realize that they do not have forensic evidence to back up those notions. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. “I understand you to be asking me.. therefore.Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert.” Avoid the narcissistic trap of “I can answer anything. and this response is perfectly appropriate. as is “That is outside my area of expertise. make sure you include the question in your answer on those occasions so that no one is misled. using categorization. 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).. the subject matter... “I don’t know” or “I don’t remember” is a fully appropriate answer. Note how the first question was a total loss and had to be rejected completely. and answer that part.and the answer to that question is . For example.
or facilitate calm negotiation.68 THE PSYCHIATRIST AS EXPERT WITNESS. you will make it worse. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. “I can continue until midnight. A situation that. There are good hospitals out there. stay seated and keep quiet until it is over. In the specific malpractice context. unfailingly polite. Assumptions The deposing attorney may ask. that is not your problem. clear. Your attitude should convey. “Well. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. careful speech that may be more formal. 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. you will be addressing him or her in slow. When everyone is through. threaten to go before the judge to plead their points. I know that’s a good hospital. The two sides. no matter how generic or basic it may seem. should that become necessary. the parties are really the parties in the case.” This position of timeless patience puts the onus appropriately on the attorney to move things along. and far less friendly and instructional than it would to a jury. scream at each other. The only assumption you should make is good faith. The only vital difference is the way in which you speak. fortunately. after which the expert examines for evidence either way. This fight is an attorney-to-attorney matter. more pedantic. occurs rarely may throw the novice witness: a roaring fight between attorneys. you assumed it was a medical record in good faith. so I assumed that they knew what they were doing. for example. and so on. but your belief might interfere with your detection of negligence in this case. Because the stenographer (and not the jury) is your audience. stand up in their chairs. “Did you make any assumptions about the case before you began?” You may be tempted to say. the next question will be coming your way. mediate the debate. As noted. and you might well know some of them. meaning that you assume that the documents are what they seem to be. heretofore quiet and almost appearing bored by the proceedings. Do not do anything. this implies arranging coverage for your patients should a crisis occur.” as it were). In one deposition. more boring. never losing your cool.” This assumption is dangerous because it suggests bias. . and demonstrate other regressive behavior. If the admission note turns out to be a forgery. authentic or merely theatrical. Clinicians may be tempted to call on their clinical skills to temper violence. That is as it should be. firm. clear. more technical.
may imitate the attorneys by overvaluing these texts and ignoring their limits. no one wrote a previously published book or article with the exact case in mind in which you are involved. note whether you agree or disagree in general with the stated points. you cannot take the position that no text is authoritative. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. Be sure to maintain a sense of proportion about these references and their utility. Remember. the disclaimer at the front disavows its applicability in many forensic contexts.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. to make an informal clinical diagnosis. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. After reading the entry carefully. Moreover. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. desperate for stable islands of consensus in the tossing seas of uncertainty. 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. Some experts respond that the DSMs are not authoritative. of course. Most modern books and articles have multiple authors or editors. yet the clinical diagnosis and treatment still may meet the standard of care. competent. Alternatively. merely official. Comparably. inescapably. this is a matter of risk management for the pharmaceutical companies. But both. However. In a criminal context. then. and DSM gives the formal criteria for diagnoses.” Learned Treatises In the course of a deposition. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. have their limits. and innocent until proven otherwise.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. but ask to be shown to which one the attorney is referring. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . or article) is authoritative in the field or in the subject of the current case. including those parts which conflict with your testimony. the examining attorney may ask you if a specific text (book. the parallel assumption would be “Sane. chapter. these publications are not uniform in authoritativeness. both sources are “authoritative”: PDR contains the actual package insert information about drugs. For example. you may be asked to supply the names of authoritative texts yourself. Novice experts. In one limited sense.
SECOND EDITION When quoting the literature. If you are really unsure about something.. Many attorneys anticipate this problem and send only bland correspondence. summaries. You must exercise some care in these discussions as they may be discoverable. you will need to review a wide array of information. but this is not your problem. Also. police reports. In contrast. Frankly admit if anything has been removed from your file. be balanced and accurate. record notes.. or “cheat sheets” (i. Any notes.e. Meet with the attorney and review the issues. In some cases. The latter may be privileged. Your attorney then can communicate with the retaining attorney. especially if details remain unclear or if over time the clinical condition has changed or evolved. and you may have to furnish copies to opposing counsel. check the accuracy of any numbers (9). an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. Arrange to do so with the attorney sufficiently early. you also may want to meet one more time with the attorney’s client before the deposition. actually visiting a site may be important. Give both (or several) points of view if they exist. this conversation is protected. Above all..70 THE PSYCHIATRIST AS EXPERT WITNESS. some discuss details of trial strategy in their letters to you. whose transcript will endure and be used for any impeachment possible. Obviously. (8. 571) Final Predeposition Preparations Before the actual deposition. and so on so that you can buttress all your conclusions with specific elements from the database. In addition. in the video deposition. p. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. rehearse—the details of the links between your conclusions and the facts. well before the deposition. outlines or summaries for quick reference) may be subject to subpoena for the deposition. it is wise to review—and if necessary. statements.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. Under some circumstances. The Video Deposition A modern wrinkle on the procedure is the video deposition. review your files as diligently as if you were going to trial. remember to go to bed early. let the attorneys determine whether it is discoverable.. the camera is . The usual audience of the standard deposition is the stenographer. consult your own attorney. laboratory values.
jargon-free. After the Deposition Always ask to read and sign the deposition. the video may also serve as the vehicle (in this case. not at the ponderous. This approach risks eventually being papered out of house and home. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. or the deposing attorney for distribution to the parties. If the expert is known to be unavailable for the trial dates. but under some circumstances the notarization can be waived. and the deponent signs under pains and penalties of perjury. since allowing your eyes to follow the local movement will create a shifty-eyed look that some jurors may interpret as consistent with evasiveness or dishonesty. the retaining attorney. you should try to direct your gaze toward the camera lens. At least one copy of the transcript is returned either to the court reporter. but errors can creep in.” and rendering.Discovery and Depositions 71 the audience. say. at times. the deponent expert should always ask for a personal copy to review in preparation for trial. you are under constant scrutiny. the only vehicle) for the expert’s testimony. In the current economy. If the deposition has been particularly instructive or noteworthy. Most court reporters are extremely good at their jobs. Remember to keep your language level. juror-friendly.” The errata sheet on which you note minor corrections (substantive testimony usually should not be changed without notification of your retaining attorney) is customarily signed and notarized. this time in a permanent record. When you receive the deposition transcript. and pedantic level of the ordinary deposition but in basic. checking for errors and typos. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. read it very carefully. trial-suited English. “It’s an us-and-them situation” was rendered “It’s an S and M situation. “irresponsible” as “responsible” are small changes with profound results. As in the trial described in the next chapter. careful. instead of—your personal appearance in court. My personal favorite is when the phrase. The video deposition presents a number of possible pitfalls. and must beware of inappropriate gestures and personal bodily attentions. of the word “not. Recall that omission of a comma. the expert may wish to retain a copy for teaching purposes after the case is over. . who may see the video displayed in addition to—or. representing the jury.
MA. 6. 2001 Baker TO: Operator’s Manual for a Witness Chair. 2008 Rice B: Malpractice: how to survive a deposition. Gutheil TG. Williams & Wilkins.72 THE PSYCHIATRIST AS EXPERT WITNESS. 3. 2005 Suplee DR. Willliams & Wilkins. 2003 Kaplan HI. SEAK. Current Psychiatry 7: 25–28. Defense Counsel Journal 4:174–179. 7. Baltimore. SEAK. National Institute for Trial Advocacy. 1996 2. 1983 Gutheil TG. WI. Med Econ 82:45–48. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 9. 1993 Malone DM. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Bull Am Acad Psychiatry Law 10:17–27. 2007 Gutheil TG: Reflections on coaching by attorneys. Vols 1 and 2. The Practical Lawyer 33:69– 78. Milwaukee. South Bend. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. Falmouth. SECOND EDITION References 1. J Am Acad Psychiatry Law 31:6–9. Defense Research Institute. Mills MJ: Legal conceptualization. MA. 2006 Gutheil TG. Suggested Readings Babitsky S. J Am Acad Psychiatry Law 34:18–22. Lippincott. MD. 6th Edition. 1982 Gutheil TG. Falmouth. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. 1999 Babitsky S. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. 39–40. MD. 8. legal fictions. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Child Abuse Negl 17:571–572. The Practical Lawyer 39:55–63. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. J Am Acad Psychiatry Law 29:313–318. Simon RI. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. Woodruff MS: Deposing experts. Baltimore. 36. 4. 5. Simon RI. IN. 1987 .
reviewing and analyzing opposing expert testimony and planning responses or rebuttal. The Psychiatrist in Court: A Survival Guide. review that chapter. Planning. examining the companion volume. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. 2. I review some of the basic courtroom procedures. preparation means not only reviewing the entire database with great care but also thinking through the story you plan to tell by means of your direct testimony. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. Preparation. and they are the subject of this chapter. pled out. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. For the expert witness. 1. For the expert. settled. For experts who have spent little or no time in court. If you are testifying away from home. If you are uncertain about the guidelines for trial preparation. I addressed the six Ps of trial preparation. is recommended as an orientation. the same six Ps should be reviewed but with a slightly different emphasis. and devising means of locating key passages in the database quickly. trials do come around every so often. 73 . In this chapter. Nevertheless.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed.
5. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. and the expected cross-examination. you need to know through choice and practice how you will convey your opinion to the jury. . what previous testimony has been given. Consider taking a taxicab to local courts to avoid parking hassles. If you have a disability. Presentation. Clarify in your own mind how you plan to deal with questions about your fees. and all such details. Insist on this conference if the attorney is equivocal or resistant to the idea. the contradictory evidence. Most of these matters are best handled on direct examination where some measure of control can be exercised. parking arrangements. and select useful examples from your experience to make central points. and your past experiences. Review the weaknesses in your opinion. and what the emotional climate of the courtroom is. Pitfalls. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). You also need to hear how the trial is going. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. Pretrial conference. 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. the location of the trial. On cross-examination. Build in contingency plans for the possibility that the trial extends into the next day at least. 3. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. the floor of the courthouse on which the courtroom is located. 6.74 THE PSYCHIATRIST AS EXPERT WITNESS. It is not enough to know the database. your publications (especially those relevant to this case). The pretrial conference is probably one of the most important stages of preparation for trial. You should rehearse ways of expressing information to the jury. and the data relevant to the other side of the case. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. Clarify and confirm your travel arrangements. the relevant literature. Define the limits of your testimony. the unknown issues. Even more distressing. Practice. practice sketching any visual aids you will need for the courtroom blackboard. what the judge is like. location of restrooms. 4. Confirm travel arrangements and other details. 7.
which are sometimes in obscure locations in older courthouses. that is..S. and to ensure that recognized approaches to the subject matter are chosen. The topic requires more extensive discussion (1). Such a hearing. Regrettably. and whether the testimony will fulfill the legally required expert function in the court. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well.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. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. From the viewpoint of the expert. you will find it valuable to locate the restrooms and telephones. Before going into the courtroom. but if you are the only one standing. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. particularly experts. Practical Matters Preparing to Go On Many courts sequester witnesses. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. much valuable information can be gained and the tone of the room determined. where the jury will be and what . to be able to articulate the bases and reasoning behind those conclusions. Once in the courtroom. Supreme Court case. 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.e. its methodologic reliability. When you are allowed to hear the testimony of other witnesses. the best approach is to exercise care about the methods used to reach conclusions. Wait in the public seats until actually called to the stand. sit down. experts are not allowed to be present in court for the testimony of any other witnesses. this kind of potentially valuable hearing and screening device can also be abused (2). may occur prior to trial (occasionally. named for the plaintiff in an important U. 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. 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. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). rise for the judge’s entrance.
and 3) you may become lost in excessive data. as are all the substantiating data. dog-eared pages. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. while the experts are testifying. 2) as noted. to have on the witness stand the entire stack of documents pertinent to the case or whether they prefer to have nothing on the stand or almost nothing (e. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. The expert appears more confident and knowledgeable about the case. having the whole database on the stand permits greater support of your testimony with specific data from the documents. tabs. The downside is the need to remember a vast amount of detail and to recall where. Note again the importance of having and practicing a plan of organization.. Note that some anxiety is normal. 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). These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. because his or her opinion is being given from memory. What to Bring Experts and their retaining attorneys vary in whether they prefer. in an often extensive chart or deposition. yellow self-stick notes. Each preference has its pros and cons. the opposing attorney cannot search through them for something with which to impeach your testimony. only a copy of the expert report that is already in evidence or only a curriculum vitae). or your own table of contents devised for more extensive documents. if needed. and ensures the accuracy of your recollection by direct verification.g. even for experienced experts. When no documents are before you on the stand. On the other hand. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. the attorneys will have it). The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. essential medical records .76 THE PSYCHIATRIST AS EXPERT WITNESS. Key documents might include my report and interview notes. a particular citation is. Recall that in almost every case. The expert should determine which of these two approaches is more suitable. SECOND EDITION the room looks like from the hot seat). My own preference is to strip down what is brought.
or carafe of water is an excellent idea. eccentricity. Arranging for a cup. during breaks. if you must. ornamentation. your mode of dress should convey the fact that you are a professional in the courtroom on business. If I need the actual page or quote. Above all. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. It is important to include material that supports the other side of the case so as not to produce (or seem to produce) a partisan trial database. A handy pen or pencil. testifying is thirst-provoking work. showing off how busy you are and how court is taking you away from really important matters. I can use my table together with the attorney’s copy of the deposition.. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum.e. the defendant or . and you will not go wrong. affidavits. do not wear new clothes. the bailiff usually will keep it filled. If you are completely uncertain about what to wear to court. For depositions of less central players in the case. Avoid either ostentation. Indeed.The Expert in Trial 77 (pruned to relevant periods if needed). Stick to the conservative business mien. depositions. Do not wear or carry your cellular telephone or beeper. I take to the stand a one-page table of contents (i. Finally. in the sense that you are usually under observation by someone—the bailiff. and check in. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. It is unclear whether either strategy is superior to the other. and similar data. Arrange appropriate coverage so that you do not have to worry about being reached. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. 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. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. 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. This table of contents enables speedy reference to key facts. highlighting marker. or if you must. ensure that they are turned off. glass. what you wear should fit well and be well broken in. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. perhaps comfort should rule. Demeanor Being on the stand is not unlike being filmed. the bored juror.
Be clear. Avoid personal body attentions (such as scratching) as much as possible. fluffy. and sarcastic. A witness with an apparent chip on his or her shoulder (and in court. or obtuse to the seriousness of the issue.78 THE PSYCHIATRIST AS EXPERT WITNESS. an attorney—at all times. With discretion. not credible. If the attorney is hostile. If you become huffy or outright mad. Your identity on the stand is that of teacher. Doctor. obnoxiously facetious. it is important. as follows. even when someone else is speaking. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. get interested in what you have to say and stay interested. not of the attorney in question. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. Scholars recommend keeping the front of your body open (by not folding your arms. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. Beware of “involuntary” gestures. attorney moves on to another subject]. impugns you. There is no reason for a teacher to get mad. for example) as body language consistent with candor. Even when an attorney attacks you. but of the jury or the entire process. or degrades you. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. and you are unfailingly polite. demeans you. you know or should know that it is not personal and has nothing to do with you. Make your point because it matters. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. Attorney (with a slight sneer): Isn’t it true. such as rolling your eyes at the jury when a particularly fatuous question is asked. all such chips are apparent) is particularly unconvincing. you win the exchange. humor directed against yourself may show that you do not take yourself too seriously. Doctor?”). . humor may seem disrespectful. flip. sneering. Such reactions may be misconstrued as disrespectful. SECOND EDITION plaintiff. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. and you want the jury to understand it. however. 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. you are likely to be too involved and therefore possibly biased. and stuffy. Without such alliance.
or waxing argumentative rather than instructive.” Make your point as concretely as necessary and back it up with hard data from the database. what fools these jargonists be).” that is. or respond to jargon. explain. or prone to nit-picking. but without intimidating staring. the trial is a human process. and “waffley. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). concede a remote possibility and move on. Because jurisdictions differ as to the precise definition. Direct your extended remarks to the jury. good teachers are lively and interesting. blunts your argument and weakens your credibility. If you must use. a juror who cannot hear may be hesitant about saying so in open court. theoretical. If a microphone is available. Haggling with the attorney over a tiny abstruse point. not just a classroom exercise. Testimony Direct testimony should unfold in an organized manner. . as a result of your careful and thoughtful preparation with your attorney. not stuffy. They are not excessively academic. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. the concept is sometimes rendered mathematically as a 51% certainty. If no microphone is provided. pedantic. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. As occurs during the depositions noted in the previous chapter. they are usually poorly received by juries.The Expert in Trial 79 Being fluffy means being too abstract. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. ask if you can be heard by the farthest ranks of jurors.e. yet may ultimately give up on your testimony after straining to hear for too long. It is not the same as “certainty” (100% sure). Keep in mind the expert’s role in telling the story in a coherent. project. to accept a possibility as such (almost anything is “possible. to concede a point that really doesn’t mean much. In general.” but only a few things reach reasonable medical certainty). avoid discussing unconscious dynamics unless absolutely needed for your point. evasive. even inhibited souls will nod if they can hear.. to agree that some things happen sometimes. making roving eye contact with various jurors whenever possible. and to admit that rules have exceptions. understandable manner that brings the details together in a recognizable gestalt. Although you are a teacher. Finally. If in any doubt about your speech volume. the most common beginner’s error in the courtroom is the inability to “throw it away. jargon laden. Speak to the most distant juror to be sure your voice is audible.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Unlike formal, even pedantic deposition language, which is directed to the court reporter and aims at clarity above all to develop a valid transcript, trial language is juror-friendly, basic, and may be more extensive than the austere, brief answers from deposition. Asked an open-ended question (“Can you describe that process?”), answer until the matter is complete; if the jury appears to be losing focus, or if you see the dreaded “eye glaze” sign, wrap up your answer and wait for the next question. Remember that no matter how intensely you may feel about anything, you must scrupulously avoid any of the mildest forms of profanity or blasphemy, even as rhetorical devices. Recall that, in some parts of the country, and for some jurors, saying “Lord, no!” for emphasis in answer to a question involves breaking one of the Ten Commandments. There are various reasons for the expert to use a blackboard, marker board, or flip chart (for further discussion, see Chapter 6 in The Psychiatrist in Court: A Survival Guide). The expert should prepare some information that can be presented effectively by using one of these aids, if only to break the talking-heads monotony of witness after witness. Make sure you can be heard when using the blackboard, marker board, or flip chart because, if there is a microphone, you will now be away from it. Do not be ashamed to boom it out. Similarly, be sure to write large enough to be read by the farthest juror; ask the far ranks if they can see the first letter or picture you write or draw. If not, increase the scale. Novice experts may not be aware that the witness who faces the blackboard and mumbles the sound-track accompaniment to his micrographia is not only ineffective but also actively alienating, possibly even insulting, the jury. The companion volume makes the following point:
In addition, when you pick up a piece of chalk in your hand and you stand in front of the blackboard, you become, as a transference object, the most trusted figure in common human experience: the teacher. The teacher knows. The juror may not know what the capital of Virginia is—or what chlorpromazine is used for—but knows the teacher knows. The power of the image transcends what you actually draw; what counts is the apparent effort to get your point across, because juries respond to the idea that you are trying to help them understand. (3, p. 62)
When responding to cross-examination, maintain the identical level of interest, animation, politeness, and responsiveness as you demonstrated on direct examination (although you are allowed to become more alert). The expert who is warm, winning, and discursive on direct examination only to turn crabbed, argumentative, defensive, and guarded on cross-examination is communicating only bias. You are telling the truth; what difference does it make which side is asking the questions? The hostile, attacking attorney who
The Expert in Trial
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 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.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine . 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.
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
Consider practicing such a description with your attorney or colleagues or friends. 83 Although this mode of explanation may seem cumbersome. In the same way. the jury usually appreciates being given the “inside story. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. 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.” Realistically. the chemicals stay in the spark gap and keep working so that your mood is lifted.” preferably said in a mildly contemptuous tone. . Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. I have been impressed by their ability to grasp what is at issue. and throat clear that you emit on the stand. do not underestimate juries. 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 jury hears the testimony twice—an aid to both memory and persuasion. and slavishly but perfectly appropriately. depressed— um—and seeking help. some scholars assert. it is numbing to a jury. “I don’t care to waste my time on this whore. just like putting your hand over the vacuum nozzle. “I have no questions for this witness. the best cross-examination is. such an avoidance of cross-examination is sound trial strategy. That is how this kind of antidepressant or mood elevator works. any testimony from this witness would be bought and meaningless. may record every pause. Adventures in Cross-Examination For experienced experts. grunt. Over the years.The Expert in Trial (draw a barrier) this process. the dirt stays on the floor. even if the technical details are lost in the shuffle. 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. This is a powerful argument for at least organizing your thoughts before you begin to testify. if you do that. The hazards of lack of practice are revealed by this following segment from an actual murder trial. Respect the juror. Recall that this is direct examination by his own retaining attorney. As you can grasp by merely reading this response aloud. stutter. The expert is on direct examination by his own retaining attorney. as if to convey.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife.” but this appreciation is lost if the jury cannot understand or follow your description.
. First. what you say is often true in other cases. Even those attorneys who opt to engage in cross-examination are usually (but.e. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”).. the attorney’s competitive strivings with the opposing attorney or firm. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. It is better to say. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. The following are some examples of the last (all are leading questions.84 THE PSYCHIATRIST AS EXPERT WITNESS. deposition. attorneys do not perform this simple but effective maneuver.”) or exhibitionism (“Watch me shine!”). or alternatively. such as the previously listed leading questions. or the answer may be obvious from the question (i. isn’t that right. the attorney’s wish or need to have the client see the attorney doing something. If you want to say. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. SECOND EDITION Most often. which may be asked on cross. never ask a question to which you do not already know the answer. The tight rein on which you are held may make it difficult to get your opinion out there.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. Instead. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. “that’s generally true” and you may be too flustered to challenge the action.” are almost always answered yes on the theory that almost anything is possible). but in this instance it is not. no problem. ask only questions to which only one answer is possible (fittingly. the question answers itself ). Throw it away.” the attorney may move on to the next question after you have said. and even the attorney’s competitive feelings directed toward the expert. interrogatory. the attorney asks closed questions.. “Although the present case is a clear exception to that rule. surprisingly. however. The attorney may know the answer to a particular question from the expert’s report. “That’s generally true. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. not always) aware of two fundamental principles that should guide this activity. can they not?” • “Another expert might come to a different conclusion.” . Doctor?” The only possible truthful answer to all the aforementioned questions is yes. equivocating hurts you. or publications. questions beginning “Is it possible.
say it. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. this type of questioning means that you have only three answers available: “yes. Breaks During breaks that occur in the middle of cross-examination. or have you dozed off? It is best to state. The key word is truthfully.” Listen with intense attention to the question. and think seriously about whether yes or no will represent the whole truth.” and do so. Always ask to see the context if you do not immediately and completely recall it. You took an oath to tell the whole truth. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. a question will require more time for prolonged thought or searching of your memory. “I’m going to take a moment to think about that. the attorney may quote something that you wrote or lectured on. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. state that you cannot answer yes or no. At times. Scholars liken agreeing to this either-or approach to signing a blank check. if not. some sources suggest answering at the outset. Doctor. At such moments. some attorneys advise not discussing your testimony. we are going to take our midmorning break right now. 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. to be sure you are clear about the question. to consider your answer carefully. Quotes On cross-examination.” “no. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- .” This response may be foreclosed by the judge directing you to answer anyway.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no. and to allow your attorney to object. and a mere yes or no may fail to convey the “whole truth. We’ll reconvene in 15 minutes.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). if needed. consequently. If either will do so.” The break gives you ample time to think. Practically. a judge may even decide to declare a recess: “While you are thinking.
you may have been deposed. Use your own judgment and knowledge of your biorhythms. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. Your final opinion. incomplete. in the trunk of your car. is your actual trial testimony. others find telephone calls distracting and let whoever is covering for them handle things. Crises Various crises may strike while you are on the stand. or inadequately grounded in data. if requested. such as the discovery that you have left a key document in your suitcase across the courtroom or. For the lunch break. even worse. The thrust of this line of questioning is to convey that your opinion is premature. This change is as it should be.86 THE PSYCHIATRIST AS EXPERT WITNESS. 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. These include biological and physiological crises or circumstantial ones. I recommend avoiding eating heavily. could change with complete validity based on some new fact that you hear for the first time during the trial. Later. because it is based on data. had it changed your opinion. The Final Opinion During the course of expert consultation. An aid to this conceptualization is to label your first report. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. The cross-examining attorney may make an issue of the fact that you had not seen a particular document or known a particular fact before you gave your opinions in your report or deposition. you have confused loyalty to your attorney with the oath to tell the truth. and some additional material may have come your way just before the trial (which. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. Subsequent communications may be labeled supplementary reports to keep the sequence clear. Now you must testify on the witness stand. Some experts want to call their offices during breaks. as a “preliminary” report. your opinion. In theory. SECOND EDITION sions with your own personal lawyer are protected). . the one that counts. you may have written a report after reviewing some quantity of material. but let’s assume it did not). you would have been obligated to so inform your attorney.
The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. More troublingly. and both grudgingly acknowledge that neither has any more questions for you. and go. No one knows the effect of these gestures. What do you care what happens? You only testify under oath. by needing to go to the bathroom. and sit more upright to relieve tension. “Thank you. Ask the judge if you may take a brief break for personal reasons. Do not hang around to hear what other witnesses say. Focus on slow. entitled. Do not be inhibited by fears that. that’s all. conservativeness is probably better (the discreet nod rather than the glad-hand wave). at odds with your objectivity. to see the outcome. and serious distractions impair your work. or to learn of other subsequent activity. The judge dismisses you by saying. for example. If a delaying tactic is not used.” At this point you say. If you do shake hands. nod politely to the jury. This behavior conveys too much interest in the outcome for someone who is not a party to the case. it invariably conveys the strong suggestion of partisanship. Deal with the problem and then continue with your task with restored focus. “You (or the witness) may step down” or “Thank you. measured breathing. one of the parties or even one of the attorneys reaches out to shake my hand. when you are through. The End of the Affair Finally. Some more extroverted experts thank the jury out loud. stretch your limbs behind the screen of the stand. Do not stop to chat or debrief with the attorney. get down from the stand. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. fans!”). you seem to be acknowledged . or weak. as always. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. Your Honor. you exit. it is preferable just to hang in there. Forensic etiquette requires that you just leave. Doctor. The judge will almost always grant this. or emit other social behaviors. Your job as expert is important to the case. sickly. childish. While this is a common and respectful courtesy. you will appear inept. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). wave at the jury box (“So long. On occasion as I have left the courtroom. it poses a dilemma of a no-win situation.
the best teacher. however. while acknowledging that experience is still. Finally. If you have traveled far with a heavy load of database materials. 2000 . as much as possible about what happened and why it happened. References 1. you seem rude. if you do not or you ignore the outstretched hand. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. Reaching out your hand to the other side’s party or attorneys in some desperate dramatization of neutrality or even-handedness is likely to confuse everyone. Forces beyond your control and outside your testimony—such as the demographics of juror selection. by letter or telephone. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. some forget. J Psychiatry Law 28:235–251. Because this brief volume can serve only as an introduction. SECOND EDITION for good (but partisan) work. this task is for the lawyers. 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. always seek feedback and reactions to your participation. A far more detailed analysis of testimony can be found elsewhere (5). Take only your report. For your personal development as an expert. and the like—impinge on trial outcome. Most courteous attorneys will inform you later. “juror countertransference” toward the attorneys. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified.88 THE PSYCHIATRIST AS EXPERT WITNESS. 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. Surprisingly. Gutheil TG. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. It is perfectly appropriate after some time has passed to call and ask the outcome. as always.
The Expert in Trial 2.
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
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
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993
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.
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.
It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91
The tension here is that some courts. hours. two trials in different states will be called simultaneously. and telephone calls to resolve them. flexible. but things happen. requiring two parties to match schedules. SECOND EDITION for months without any forensic activity whatsoever. others are not. Because your attorney has the most interest in your presence. add another layer of challenge. I know you have a busy schedule. You must do the best you can with what you’ve got. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. The second priority is depositions. The last two priorities are interview and report. You may have a little room to maneuver in terms of the order in which you testify..” Smile politely when you hear these words but make expansive plans. Trials take first priority. Travel glitches (discussed in Chapter 10.92 THE PSYCHIATRIST AS EXPERT WITNESS. Because your reports can be done at any time of the day or night. I can’t imagine my direct examination taking more than an hour.M. testify last in order to summarize) may be willing to move you earlier in the case and somewhat restructure your direct examination to compensate for this maneuver. You’ll be out of there by lunchtime. and other-side attorneys are reasonable. An attorney who planned to have you “bat cleanup” (i. with a deposition for a third case. comes before a report. This type of schedule is close to reality. attorneys. If a trial and a deposition are scheduled for the same time. court dockets are crowded and leave little flexibility. and accommodating. maybe 2. You can count on your eyeballs the number of times this clockwork model actu- . he or she will be exerting the greatest efforts to make it all work out. the trial should take precedence. Large numbers of people are involved. of course. and serious matters hang in the balance. for example: “Doctor. a forensic interview. although obviously fewer persons and a shorter time frame are involved than are for trial. You’ll probably be cross-examined for 1. tops.” in this volume). “The Expert on the Road. negotiation. theoretically.e. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. so let’s put you on first at 9:00 A . sharp. As a rule of thumb. cancellation) is as follows. the other side may be willing to have your testimony inserted into their side of the case. but during the very week that you have scheduled four weddings and a funeral. with suitable preparation of the jury.. which also require several people to synchronize their schedules. In extreme circumstances. the hierarchy of urgency and therefore attempted postponement (or at worst.
M. the odd juror gets stuck in traffic. The aforementioned realities make it essential for you to clear as much time as possible for a trial appearance and to arrange contingency coverage in parallel. Bull Am Acad Psychiatry Law 24:533–546. DC. J Am Acad Psychiatry Law 32:356–358. 1996 Suggested Readings Gutheil TG. American Psychiatric Publishing. negotiation may be possible for some scheduling conflicts but not always. J Psychiatr Pract 12:50–54. some are not. Although my colleagues and I tried to study this issue formally (2). 2006 . as a kind of swing time in which he or she can hear a half dozen motions in this and other cases and “dispose of them. The attorneys wrangle over whether some document relevant to the next witness is admissible.” In addition. Commons ML: Trading forensic and family commitments. a judge will treat the time between 9:00 and 9:30 A . no clear conclusions can be drawn. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington.Some Pointers on Expert Witness Practice 93 ally occurs. Gutheil TG: “Paraforensic” aspects of expert witness practice. difficult choices may have to be made. and family. 2002 Reid WH: Forensic practice: a day in the life. 2. However. (More suggestions on scheduling are included in Chapter 10 in this volume. it is not uncommon for an out-by-noon case to extend into the next day. Occasionally. The jury takes a long midmorning break. References 1. Why? Although some judges are scrupulously punctual. The subject may represent some kind of taboo because it is rarely discussed. 2004 Kearney AJ. partner. In the end. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. Gutheil TG. The judge assigns a long lunch and hears another few motions just afterward.) 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. Thus.
This page intentionally left blank .
an attorney. or for a disability determination. to serve as a witness. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. some basic principles on letter writing to the court are described and are not repeated in this chapter. a court.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. In The Psychiatrist in Court: A Survival Guide. 95 . or a quasilegal agency such as a board of registration or a bureau of motor vehicles. allowing careful legal analysis and reflection on whether you will be helpful on the case. or to serve on a jury. attention to the preparation of the written document results in a product that assists the legal system in its efforts and goals and validates your contribution to the process. In this chapter. a description of an independent medical examination for a personal injury suit. I focus on writing the full-fledged forensic report. In all such cases. a defendant’s criminal responsibility. or a full evaluation of a person’s competence to stand trial. or a physician’s deviation from the standard of care. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. for a worker’s compensation claim. Examples of such writing include a letter providing an assessment of a person’s fitness to drive.
in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. Despite these useful functions.D. In other situations. Resnick also identifies the “four principles of good writing”: clarity. brevity.” Dr. According to Dr. Critical documents should be briefly summarized within the report. because the first is self-explanatory and the second is an extract of the third. It should stand alone. has generously and graciously granted me permission to cite some of his advice on report writing. It should be just long enough to cover the essential information but not so long as to exhaust the reader. which presents your database and conclusions only. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. In this chapter. Phillip J. then. 2) a summary report. which in that jurisdiction is discoverable by the other side. and 3) the full. the report may present materials or approaches that the attorney does not wish to share with the other side. of course): 1) no report. Resnick. I emphasize the third form. Obviously. Without referring to other documents. detailed report. for which I am most grateful (where I cite his material. simplicity. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. may take three major forms (with variations possible. and meticulous proofing and review of any report you produce. and humanity. without detailed discussion of the bases or reasoning behind those conclusions.. General Remarks The report as a whole should meet certain criteria. I refer to him explicitly in the text). Resnick. the attorney may ask that you not furnish a 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. It should contain everything that you need to support your opinion and no irrelevant material. all should govern the form of the report. Forensic report writing. These are all powerful arguments for careful thought. painstaking preparation. the reader should be able to understand how the opinion was reached from the data in the report. which states all of your conclusions and the analysis of all the relevant substantiating data.96 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION Alternatively. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. For similar reasons. “Reports should be self-sufficient. Consequently. M.
or State v.” Some attorneys. that is.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report. In that case. sometimes called the referral.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs).. or the type of case in a civil matter (e. emotional injury or psychiatric malpractice).g. . Include any interviews per- .” and subsequent contributions. The heading should also include your letterhead and the date of the report. additions. Jones et al. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. Resnick is included at the end of this chapter.. The Occasion The occasion. otherwise... may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. the charges in a criminal case. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney.. John Johnson). police reports. Identifying data can be presented in a number of ways.” • “I examined Ms. or emendations should be titled “Supplementary Report.g. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. of the report should address the question of why you are writing this report. the case or docket number if known.. One way is to provide the case citation or caption in whole or in brief (e. use a standard business letter format.” The Database After identifying the occasion. think of your report as a memorandum and use a standardized format. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . One model by Dr. Smith v. I examined (name of examinee) with regard to (forensic issue). reasoning that the occasion is obvious from context. 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)... legal pleadings. and depositions.
98 THE PSYCHIATRIST AS EXPERT WITNESS. 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. attorney. you are free to choose your favorite. Note the wording. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). 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. A typical conclusion in a malpractice case. in the treatment of (plaintiff ). for example. including interview data) and your total clinical background of training (what you were taught) and expe- . the overall basis is described as both the database (all the material reviewed in the case. Although each group has a rationale. or according to some natural. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. held to a reasonable degree of medical certainty. First. chronologically. no convincing case has been made for the inherent superiority of either approach. logical grouping (e. or other) is free to stop there and make decisions about future directions in which the process should go. The remainder of the report is thus treated as optional reading. that. .g. (or. SECOND EDITION formed and their date and length. The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge.. all depositions). 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. and so on.. The documents may be listed alphabetically. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. it is my professional opinion. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. about the disposition.
Resnick suggests using subheadings to organize the information and facilitate the flow of the report. sometimes different spins on the truth. Resnick states. the expert should scrupulously avoid assuming one side is correct. your conclusions should be presented in . is essentially boilerplate (i.e. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. Second. “If there are two versions of the facts.Writing to and for the Legal System 99 rience (what you have found for yourself by practicing in the field about which you are testifying). Dr. malpractice. If your conclusion comes at the end of the report. In criminal cases involving the insanity defense. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. offer alternative opinions. sometimes frankly contradictory. Remember that the conclusion.. the defendant usually has admitted the act for which he or she is charged. but occasionally. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. be it competence. The reader should not have to use his/her own inferences to understand the point. and credibility as an expert witness. Dr.” Multiple Realities In civil cases. In these cases. standardized legal language). usually. insanity. Finally. or other.” In every case.e. Resnick explains. “Reasons supporting opinions should be clearly and fully stated. you can present the supporting material in several ways. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. Third. Supporting Data After the conclusion. this section should contain extracts of previous material directly supporting the points you are making.. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. 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 is predictable that plaintiff and defendant tell different stories. effectiveness. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. 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. As Dr. If your conclusion is stated at the outset. more likely than not). although representing the core of your opinion.
Some requested alterations are fully ethical. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. Limits. Postreport Negotiations After your report is finished and has been sent to the attorney. which make for a stronger report. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. judge. summarizing.. There is no absolute guideline for this procedure. These are not weaknesses of the report. you may receive requests to alter the report in some ways.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. interview of plaintiff blocked by attorney. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. then . Whichever approach you actually take in your written report. and Rebuttals If there have been any constraints of time. or agency for which it has been prepared..if defendant’s version is true. Constraints. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording.. and shortening the report by aggressive editing. even if it has been removed from your report for brevity. then ... or to change the substance of your opinions.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data.100 THE PSYCHIATRIST AS EXPERT WITNESS. then . A case example was discussed in Chapter 3 (“First Principles”) of this volume. asking for the addition of new material not supplied to you earlier. 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). money.. (Remember you must be candid about everything you believe to be true. and deleting. these should be recorded. it would be a weakness not to acknowledge these factors candidly. on the contrary. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity.” This approach prevents your seeming to side with one party in the case. but generally there is no inherent problem . attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. A challenging gray zone is negotiating about wording. or data (such as inadmissible material. some are not. SECOND EDITION the following form: “If the allegations are true. to alter or misrepresent facts in the database.
14. 6. . 11. 16. 3.1 1. 17. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. 4. extremely likely). 9. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. You also may ask to see a senior colleague’s report under an agreement of confidentiality.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. 13. and effect of emotional injuries—three common problem areas. 10. The Criminal Report: An Example The following is Dr. 2. very likely. 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. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. Be careful about changing wording concerning issues of causation. 7. intensity (likely. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. Resnick’s outline for a typical criminal report. but it may get you started. 12. 5. 8. 15.
22. 25. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. 2007. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. Hess AK. Petrilla J. report writing and expert testimony. New York. 1986 Melton GB. THE PSYCHIATRIST AS EXPERT WITNESS. 23. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 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. MA. pp 511–528 . 20. 3rd Edition. pp 577–605 Weiner IB: Writing forensic reports. 1987. et al (eds): Consultation. Guilford Press. Am J Psychiatry 143:164–169. Falmouth. in Handbook of Forensic Psychology. Edited by Weiner IB. New York. 21. Wiley.102 18. SEAK. 24. 19. Poythress NG.
and inefficacies. We sent this announcement to every attorney we had ever worked with. to connote the Harvard connection). two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. In addition to the (largely fantasied) corporate benefits we dreamed we would derive.” The ability to say yes to all comers seemed like a good idea at the time. (I believe this excluded only admiralty practice and the law of the sea. In the late 1970s. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. heard of. We retained an industrial designer to help create a logo (highlighting crimson. such an affiliation would mean that we would be able to say to any attorney who called us.) 103 . embarrassments. a letterhead. “Yes! We (or the corporation) will take your case. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. and we drafted an announcement. and a typeface for our official stationery. We will let you know shortly which of our directors will be working with you. In this chapter. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. Unfortunately.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses.
clinicians) led to forensic referrals: word of mouth. “Types of Typical Cases. speak. list. 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. commercialized hustling for business—or the appearance thereof.. thought. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. . it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. The balance must be struck between dualities such as generating word of mouth versus hucksterism. SECOND EDITION All this effort did nothing. inform. for example. opportunistic.e. The Delicate Balance In all approaches to marketing. is suspect and not reliable as an approach (see also Chapter 4. The Key Approach As time went on. but the net effect for all this time. Most recipients almost certainly awarded our announcement the coveted circular file disposition. word of mouth). would you get a straight answer from the attorneys you would want to work for? Strategies Various approaches to building word of mouth are recommended as you develop and market your forensic practice: announce. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. Support for this theory came from Harvey Research in 1994. We received a few form announcements from two or three firms about their offerings.” in this volume). an expert’s marketing strategy shifts to generating favorable word of mouth. Based on this reasoning. and unspecialize.104 THE PSYCHIATRIST AS EXPERT WITNESS. that is. The result was tantamount to letting a drop of water fall into a large lake. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. and pride and confidence in your work versus hired gun certainty or grandiosity. sharing useful information versus being pushy. Ordinary advertising in Lawyers’ Weekly. and expense resembled our own responses to offers that come in the mail to sell us insurance. write.
they will be useful to you in several ways. hand it out at a lecture.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). then reporting to the court. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. First. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. they may turn away a case because of a conflict of interest. National meetings of professional associations (such as those of the American Psychiatric Association [APA] and American Academy of Psychiatry and the Law [AAPL]) and local chapters of other organizations offer additional opportunities for informing peers about openings in your caseload. the GAL may do a preliminary survey of the psychiatric aspects of a case. informative. and factual. For your clinical peers. if you have one. polite letter informing local judges of your availability for forensic services. including listing services you are not truly expert in. you may wish to send a short. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. Avoid any hype. and lawyer neighbors and friends who might pass your name along. they may think of you at that point. trifold sheet of fine paper with a brief description of the expert and the services. Thus. Some experts replace the announcement with a minibrochure: a single. or use it in some other appropriate way. it should be tasteful. Attorneys whom you can inform include your own attorney. Among other roles. Finally. the announcement should display the professionalism that you plan to bring to the work. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. judges may need your services. Serving as a guardian ad litem (GAL. of course. It is unclear whether the brochure is superior to the announcement and may be better utilized as the second item of information sent after an initial communication. Although your forensic peers may seem to be your competition. too little time. Describe those services you can authentically offer. 2) your forensic peer group. and 4) judges. and send it to attorneys and clinicians. Alumni bulletins and class reunions are also opportunities to get the word out. 3) attorneys. Opposing attorneys. or other reasons. previous associations with the attorneys on the other side. in effect. If you inform your peer groups about your availability. . will see you in action in deposition or trial. If you are moving into a new town.
Although it is useful exposure and a valuable resource to write an analysis. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). the topics of which appear on the screens of attorneys’ computer searches. Beat the Press (2). One reference. departmental conferences. these publications may be explored. In my opinion. Become active in your district branch legislative committees and processes. Write In our computerized modern age. may be helpful in dealing with the media. Your podium demeanor may convey at least a little about your expected performance on the witness stand. many referrals to psychiatrists come from publications. ambush journalism. You will be exposed to attorneys and legislators.106 THE PSYCHIATRIST AS EXPERT WITNESS. Finally. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. both of whom may be potential referral sources. Admittedly. or commentary and have it published. good visibility also can be obtained by letters to the editor of major journals reporting on a single case or responding to the articles or letters of other contributors. The APA Public Affairs Office provides some guidance in dealing with the media. try to become involved in local media such as call-in shows. and similar humiliations. or established continuing medical education programs. however. but the wounds of experience are probably and ultimately the best teacher. sign up as an entry in an existing lecture series. . Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. this skill is acquired. 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. Instead. such as hospital grand rounds. such as clinicians and lawyers. no one will show. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. which are often seeking a stable of experts to comment on medicolegal stories of the moment. SECOND EDITION List Listings can be effective as well. review. and media exposure may open you to crank calls.
I will work only on high-profile. by definition. skills. 2. even at the outset.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. integrity must be your watchword. no matter how slight the issue. Do not bend the truth to satisfy the attorney. extremely public. From the absolute onset of your career. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. including this one. place in the profession. training. modesty. Consider taking on some pro bono work as well. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case.” This is a losing strategy. one turn to the Dark Side of the Force. a point that cannot be overemphasized. Be extremely careful about posting your qualifications. some broker organizations guarantee your opinion. In the same vein. Even minor. You will derive no income. and other aggrandizing statements that are. trivial cases allow you to be observed in action by potential employers. If you decide to use a Web site. Begin your career by unspecializing. based on your fine performance at the deposition. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. It does not matter if the case is trivial or small potatoes. In fact. 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. 3. certifica- . as it were—but the Web site is perhaps the most explicit. Have the site professionally designed with attention to taste. widely publicized mass murders. some critical considerations are the following: 1. and your course as hired gun may be marked. It does not matter if the first three cases (or five or ten) that you get are ones that you must turn down as baseless. Conservatively stating your incontrovertible credentials (actual appointments. What About Web Sites? In the modern era the use of Web sites has increased for all professions. but you will obtain valuable exposure. Beware of making or seeming to make extravagant claims for your knowledge. wherein you follow the ancient maxim. No case too small. It may then take you years of work to unblemish your reputation. and interest.
Building a practice on word of mouth is slow. conflict. J Psychiatry Law 31:5–19. etc. specific required expertise). Additional Pointers The issue may seem trivial. Finally. you are also revealing yourself as a good first stop on the search for a good expert. at times trying. References 1. SECOND EDITION tions. sound. American Book Business 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. but I will take it upon myself to find somebody good who can. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. and effective. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back.108 THE PSYCHIATRIST AS EXPERT WITNESS. UT. Salt Lake City. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. You are saying to the calling attorney. Dattilio FM. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. and demanding of patience. Sadoff RL. Guyant A: Beat the Press. “I can’t take this case (because of time. 2003 Fulton S. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. 2002 2. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. In analogy with clinical referrals. but no other method is as reliable.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. publications. Return telephone calls are the easiest marketing device and one of the most effective. Remember to thank your referral sources. recall the value of brokering. including attorneys and fellow clinicians. choose only those experts whom you would be confident to have on your side if you were being sued for something. for referrals.” Although you are feeding the competition. but its importance cannot be overstated: return telephone calls promptly. .
New York. CO. 1997 Feder HA: Succeeding as an Expert Witness. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. Inc.. . Massachusetts. Tageh Press.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. WW Norton. out of Falmouth. Glenwood Springs. I disclose that I have lectured for SEAK numerous times over the years. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK.
This page intentionally left blank .
In this chapter. 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. and opprobrium. or interviews.. seasoned travelers may skip the chapter entirely. M. this chapter will be too obvious and not relevant to your needs. mockery.D. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips.D. The author is indebted to Robert I. William Reid. Simon. 111 . 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. As always.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. I address some tips and strategies for the expert who is inexperienced in traveling to cases.. M. examinations.
Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. Alternatively. Try on everything before you pack it. and hotels directly and save you much time and stress on the telephone or online. cars.112 THE PSYCHIATRIST AS EXPERT WITNESS. to ensure that it still fits. Running shoes also allow you to sprint through airports to . Some General Recommendations Travel Information Travel guides are available everywhere. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. travel agents. especially in flight. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. testify or interview the next day. and is in good repair. 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. on rare occasion. you may make the appropriate adjustments. stay overnight in a hotel or similar setting. 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. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. For cases that involve land travel. These services can book flights. looks professional. you must assume significant time delays and be prepared for your time commitment for court appearances to go into a second or even third day. and general information can be obtained from books. Consult with significant others for their opinions if needed. the Internet. and return that day or the following one. and one pair of shoes. Still other guides are provided in the suggested readings at the end of this chapter. and your colleagues. I recommend The Packing Book (1) as an excellent resource if you always arrive at your travel destination with the wrong clothes in serious disarray and find you have left out several important items. Another useful reference is Jet Smart (2). matches. polished shoes for men and women). Opt for crushproof fabrics and materials whenever possible. the process takes even longer. the emerging online travel services (Expedia and the like) may prove useful. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. especially if you have not worn it for a while.
The Ethics of Billing Bill strictly according to your fee agreement. do not bill separately for that work because you are already being paid a day rate. which are. you may bill for that time but not for the ticket because the first case paid the whole trip already. in-room movies. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. Until data emerge. or 2-hour long-distance calls to your paramour. If you review a different case on the way back. if you are flying to a case and use air travel time to review the case. massages. then. Seek equitable division of costs for multiple-case trips. for example. Avoid checking baggage if you can. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. Separate business from personal comfort. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation.g. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. and for the regular three meals. If the trial runs longer than a day or so. the literature is relatively unhelpful (the issue of double billing. a useful principle is to avoid double billing in any form. for one or two telephone calls per day to the office to check on things. You have enough to worry about ..The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. do not bill for sleep (you do it anyway). rare but extremely stressful when they do occur. fortunately. is addressed nowhere in the forensic literature). 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. It is possible. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. For example. for one telephone call to the family. 1 day at your day rate. 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. but not alcoholic beverages. because some law firms are slow to reimburse hotel and plane expenses). Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend.
eyeglass screwdrivers and replacement screws. or toiletries case. Other useful miscellaneous items include adhesive bandages of various sizes and types. stain-remover sticks that do not contain toxic petrochemicals. lotions. The Kit Whether you call it a travel kit. In general. multifunction “pharmacy” also should be included. you may opt to wear the suit or outfit on the plane and guard it in transit. and rubber bands. These should include sewing items. it is indispensable to your successful travel ventures. light flashlight for power outages and searching under beds for lost items. antacids. with a little applied topology. do not skimp or economize on the roll-along suitcase. decongestants. these roll-alongs often fit either in the overhead compartment or. In addition. . extra shoelaces. Remember also that your kit should contain items that permit repair. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. but you may wish to experiment with a friend’s suitcase. and string. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. In psychoanalytic theory. even under the seat in some cases. a small. Dopp kit. Wear your workout or running shoes on the plane. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. the principle of multiple function is one of the basics of a dynamic understanding of mental life.114 THE PSYCHIATRIST AS EXPERT WITNESS. such as a variety of buttons and threads to match your clothes. and creams to quart-size plastic bags. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. and cleaning. and similar medications. remedy. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. and pack the rest of the gear. not to mention the current airline custom of charging extra. a small roll of duct tape. What you take should have similar versatility. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. safety pins in various sizes. A small. 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. Alternatively. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. Current travel restrictions have shifted the allocation of liquids. which may also be prepacked. and extra combs. extra eyeglasses or contacts if you wear them. makeup bag. It is definitely a basic principle for assembling your kit.
experienced travelers can skip this discussion.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. on very dry flights. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. Drink water steadily to avoid travel dehydration. for you to get out of the toxic smoke and gases to safety. I carry a compact “smoke hood. testify. but some precautions seem sensible. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. because someone else is paying your way to the location. This item is available through a number of catalogs. fails). Second. you are undistracted by social obligations and family strife or background noise. try breathing through a moistened towel for short periods. often hooked to a travel alarm clock. institutional hotel or motel and cadging free lodging with friends or relatives in the area. The traveling expert is sometimes torn between staying at a cold. and special arrangements. remember to carry light extension cords and voltage adapters. call the airline early to check on facilities. but you can buy your own compact version. If you have a disability. I recommend the hotel or motel for several reasons. Besides a small flashlight.” this discussion will be helpful. First. procedures. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. as well as extra disks and the instruction manual if not on the hard drive already. Almost all modern hotels in the United States have smoke detectors. in theory. although occasionally. You breathe through a filter that lasts long enough. fly out. it is more professional to meet with your attorney the night before the . Seriously consider avoiding airline food entirely. Secrets of Staying If you are unfamiliar with the expert art of “fly in. The latter appears at first glance both socially desirable and economical. Emergency Items Neurotic fears can certainly flower when you travel. or order special low-fat meals.
M. an essential part of effective testimony. Whether the room’s air system is heating in winter or cooling in summer. My second move often is to arrange a do-it-yourself humidification of the room. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. 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. of course. Experimenting with culinary exotica is asking for a case of turista at worst. after all. After the trial. congested. you are free to visit friends and family at your own discretion. . or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. if desired. 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. but not all. back up the call with your travel alarm. a situation that can leave you hoarse. SECOND EDITION trial in a hotel room or conference room. Don’t forget to set the room thermostat to your accustomed household temperature. wring it out thoroughly so that it doesn’t drip. obviously you should eat lightly and stick to what is familiar to you. Remoisten it as needed. It is probably safest to avoid all alcohol during the trip before testimony. the air is invariably dry in most hotels. after I put down my luggage. 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. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. have your martini on the airplane home after it is all over.116 THE PSYCHIATRIST AS EXPERT WITNESS. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . Some. a business trip. Secrets of Eating In traveling to court. and headachy on the stand. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. hotels provide irons. this is. nausea on the witness stand also may be misinterpreted. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. My first move on entering a hotel room. A simple but effective method is to soak a washcloth or hand towel in cold water. is to make a beeline to adjust the hotel’s alarm clock or clock radio. If a paper clip or safety pin does not suspend the cloth or towel well.
Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. After court. as noted. either by closing them completely or fastening gaping fabrics with safety pins. of course. or even a different time zone. so you may have to carry some supplies in your pocket or purse. or similar terms.. and with sleeping pills. and similar relaxants. spending some time in direct sunlight may be helpful in adjusting your biologic clock. This term refers to sounds containing all frequencies. actual memory loss can occur—the last thing you need. Ordinary AM radio static and the sound of surf are two examples of white noise. When possible. I recommend it. usually described in catalogs as “sound soothers. you can have a serious meal without ill effect.M. These have ill effects. breathing techniques.” sleep sound machines. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. Many travelers find it helpful to block out morning sunlight with the drapes. the chatter of housekeeping staff just outside your door) is white noise. also eat lightly. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. What to Take to Court Courthouses are notably lacking in amenities. but all the data are not in. without aftereffects. When you are up and awake. Examples include prescription medications that you need during the course of a long day. hot baths. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . or others) at bedtime. just as white light contains all color wavelengths. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. 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. Far better results accrue from sleep hygiene maneuvers.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. plan your trip to allow time for recovery from jet lag. Catalogs sell portable battery-operated white-noise generators. benzodiazepines. including hangovers. by using either alcohol or sleeping pills (barbiturates. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. stain .
and a headache remedy for the obvious problem. Berkeley. WA. 2003 2. New York. I hope that these tips make your travel easier and less surprising. 5. sample wardrobes and general travel pointers included as well. Villard. mints.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Ten Speed Press. Berkeley. Commons ML. 1988 (Incredibly detailed. et al. or refreshment. San Francisco. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Although some of the pointers in this chapter probably state the obvious. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. Seattle. Psychiatric Annals 33:302–306. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. SECOND EDITION removal. with the emphasis on safety and security issues. Jossey-Bass. 2001 Simon RI. Flying Cloud Publishing. Commons ML. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential.118 THE PSYCHIATRIST AS EXPERT WITNESS.: Expert witness travel dilemmas: a pilot study of billing practices.) Gutheil TG. 3. 1996 . Magellan’s International. References 1.) Savage P: The Safe Travel Book. Revised. Slater FE. Santa Barbara. cough drops. CA. Celestial Arts Publishing. 4. CA. J Am Acad Psychiatry Law 26:21–26. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references.) St. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. J Am Acad Psychiatry Law 29:202– 206. or throat lozenges. CA. 1998 Gutheil TG. 1994 (An excellent guide to what to take and how to pack it. I welcome your suggestions and favorite travel tips. James E: The Secrets of Simple Packing (VHS videotape). Miller PM: Expert witness billing practices revisited: a pilot study of further data. Gutheil TG: The forensic expert practicing on the road: new hazards along the way.
Simon.D. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. from all evidence. expand. to require our services in increasing numbers. effective. 119 . As always. which I cowrote with Robert I. If I have made too many assumptions about you. or have taken too much for granted about your background and experience in any portion of this text. The better we are at meeting the courts’ needs with ethical. consider reviewing the successor volume to this one. I welcome comments and suggestions from readers to correct.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. The Psychiatrist in Court: A Survival Guide. M. (American Psychiatric Publishing 2002). consider first reading the companion volume. and helpful testimony. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. On the other hand. Although some forces in society. if you wish to take your work to the next level. including our medical colleagues. the courts will continue. or render this text more useful. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). the reader. decry the expert witness function and voice arguments for its abolition. the more we serve this valuable and necessary function.
This page intentionally left blank .
The main points about the form are the use of basic language. and the examinee’s attorney’s attestation that the examinee understands the form (i. is likely to be competent to consent to the interview)..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. supplied for consideration. I read it or have the examinee read it at the start of the interview and answer questions. 121 . clarification that the forensic examination is not the practice of medicine.e.
Dr. Gutheil. Thomas Gutheil. and I understand they will be part of the same examination and will follow all the above rules. if needed. (“Dr. or out loud in open court in a trial. Gutheil will not give me any medical or psychiatric treatment. I understand that Dr. Dr. I agree to give up my rights to have Dr. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. Gutheil may write that down for the record. Gutheil will explain or has explained to me. 3. Because I am being interviewed in a legal matter. M. but if I refuse to give an answer or some answers. however.” or “update” interviews of me by Dr. 4. SECOND EDITION Consent for Forensic Examination by Thomas G. I understand and agree that Dr.122 THE PSYCHIATRIST AS EXPERT WITNESS. . I understand. agree to have an examination by Dr. I understand and agree to additional repeat. Gutheil has my permission to talk to people involved in my legal case about the things that he and I discuss and anything he thinks or decides about what we discuss. I understand and agree that Dr. Dr. that he is not acting as my physician or psychiatrist in doing this interview or interviews. Gutheil keep secret what I tell him. 2. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. and I understand. nor will he suggest any treatments to me or for me. Gutheil”) I. During this interview or interviews I will be asked a number of questions about myself. 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.D. . most of which will be very personal. “follow-up. Gutheil will explain or has explained to me and I understand that Dr. hurt my case. or have no effect on my case that I can see. the following: 1. in spoken depositions (where lawyers ask him questions). the person who has signed at the bottom of this letter. I also understand that I am not his patient in connection with or because of this interview or interviews. Gutheil’s interview or interviews. Gutheil’s written report or out-loud statements for court may help my case. Gutheil’s questions. Gutheil. I agree to be interviewed. and I understand that no one can know which one it will be in advance. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. This means that Dr. The examination will be one or more personal interviews. Dr. Gutheil is a physician and a psychiatrist. in connection with my legal case. I understand that I can take breaks if I want to at any time during Dr. Dr.
a court officer.Appendix 1: Consent Form for Forensic Examination 123 5. Attorney for examinee Print name Date day of . to my assessment. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. of course. he/she appears competent to understand it. Gutheil’s retaining attorney. I certify that I have answered any questions my client asked about the procedure. or the court as provided by law. free to show it to me. that individual is. Any report in relation to my case will not go to me but will go directly to my attorney. Signed. 20 . Dr.
This page intentionally left blank .
$ for depositions. and $ per hour for trial. including portal-to-portal local travel (c). In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. Standard Letter of Agreement by Thomas G.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). in addition. rescheduling is at mutual convenience. Gutheil. Gutheil shall be reimbursed for all time spent on the case. M. the radical revision presented here has evolved from that in the first edition for the same reasons.D. and the same due for cancellations that occur less than 72 hours in advance. Gutheil”) 1. Dr. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. (d) 125 . Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. at a rate of $ per hour plus expenses. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. (“Dr.
Gutheil’s FID# is . Dr. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. For out-of-state evaluations or testimony. materials. please return one copy to Dr. as an advance against which expenses are billed (p). Gutheil. any existing balance shall also have been paid 3 business days before departure (e). For out-of-state travel. and as a condition for its specific to this travel is exbeing undertaken. Failure to comply may void this agreement except for duties of confidentiality (l). Payment in a timely (g) manner. Gutheil will be unavailable for testimony in person during the month of August (f ). 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). Dr. is the sole responsibility of the retaining attorney or insurer (i). SECOND EDITION per day 2. The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. Overdue accounts may accrue interest at 6% per annum. A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. This agreement may be terminated by either party upon notice and such termination shall relieve each party of any assumed or implied obligations other than payment of any balance due (n). Gutheil by name (h). a retainer of $ pected 3 business days in advance. including travel by first-class conveyance and appropriate lodging if needed. Signed. irrespective of case outcome (j) or defaulted appearances. prorated (k). Signature below indicates agreement with all (r) these terms. 5. Before such travel is undertaken. 4. The retaining attorney understands that my forensic work is not the practice of medicine. Please note that because of vacation scheduling. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). (s) Note: Please send all case materials to (address) Date .126 THE PSYCHIATRIST AS EXPERT WITNESS. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. made out to Dr. and examinations as discovery rules permit. 3. (q) 6.
You must be free to withdraw from the case if the contract is breached. the “clock” starts when you leave your home or office for court and stops when you return to office or home. You have the right to request timely payment to prevent excessive backbalance buildup. deposition. attorneys are sometimes slow to reimburse travel expenses for interview. To cut through nit-picking. or trial. A case decision that goes against the side retaining you is not grounds for nonpayment. l. this clause makes that explicit. j. take a videotaped deposition. or a member of a corporation or group practice. I recommend asking for this secondary retainer before travel. e. n. b. m. k. based on their training. Your fee is. i. If you know when your vacation is. “You’re right. moreover. make that clear so that you don’t waste a lot of time swapping checks between payees. or trial travel. This is a standard rate of interest on overdue accounts and an incentive for timely payment. Doc. Some experts charge differing rates. h. this statement makes the attorney agree to that possibility. . If you are the sole proprietor. it saves everyone time and heartache if you spell it out. as it ethically should be. for review. Working for the client. “Consideration” and “agreeing” are trigger words that signal to attorneys. you may decide to withdraw. 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). will throw up their hands in mock exasperation and say. f. deposition.” d. Because you will be investing a fair amount in the travel costs. but what can I do? That client just won’t honor his or her obligations. c. that this is a formal contract. This information frees up the attorney to ask for continuance or rescheduling. If you do withdraw. You are initially retained as a consultant. For unexplained reasons. If the retaining party is relentlessly slow. noncontingent. or even retain another expert. thus. Some attorneys.Appendix 2: Standard Fee Agreement 127 Annotations a. Every agreement must have an exit clause such as this one. “portal-to-portal. others the same. dunned for appropriately earned fees. that does not mean you should not be paid for the work already done.” Make it clear that you do not work for the client and that the attorney or insurer (in some civil defense cases) is the responsible party. g. can constitute a bias.
some experts simply submit additional invoices. Making the retainer nonrefundable tends to eliminate such shenanigans. for example. SECOND EDITION o. 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. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. You have been sandbagged. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. parallel with the forensic consent form in Appendix 1. When this retainer is depleted. On rare occasions. and ethical incompatibilities. or has left the firm. q. legal. alas. and. if the attorney is out of the country. Such attorneys may pay the retainer. The wording here. ask for their retainer back. making you ineligible for participation with the other side. You are here agreeing to accept signature from a different attorney or a paralegal. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. at no cost to the attorney but at lost time and possible income to you. because you did no work. Moreover. has handed the case to another attorney. identifies the attorney’s understanding that this is not the case. r. p. The retainer is not only a means of establishing the contract but also an actual advance against expenses. give you no work to do. after settling the case.128 THE PSYCHIATRIST AS EXPERT WITNESS. s. . these events do not weaken the contractual ties with the firm. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. others ask for a second retainer (see also Appendix 3 in this volume).
Psychiatric services may include an initial consultation. if it appears that substantial services are yet to be rendered. Clinical and Forensic Psychiatry (Address) (Date) Re: (Case) Dear (Attorney): This will confirm our agreement regarding my providing psychiatric consulting services with regard to the above-referenced matter. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. This retainer will constitute a credit balance until exhausted. Thereafter. the hourly 129 . M. review of records. 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.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. interviews with family members or other persons. STRASBURGER. If travel from my office is necessary to perform any of these services. LARRY H. and report preparation.D. psychiatric interview or evaluation. consultation with counsel. I may require an additional retainer. Any credit balance remaining will be refunded upon the termination of my services.
If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. literature research. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. Sincerely. and all travel expenses will be reimbursed. Strasburger. Larry H.130 THE PSYCHIATRIST AS EXPERT WITNESS. the retainer discussed above. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. M. no refund of the retainer deposit will be made. Nor shall such failure relieve your obligation to have on deposit. long-distance telephone calls. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. Any excess over the retainer balance is due upon receipt. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. prior to my testimony. court order. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. Diplomate. along with a listing of out-of-pocket expenses. American Board of Psychiatry and Neurology Diplomate. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. Please keep a copy of this letter for your records. 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). Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. expert or otherwise. court rule.D. All travel shall be by first-class conveyance. Time spent in preparing for testimony shall be billed at the hourly rate specified above. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . please so indicate by signing this letter and returning it to me with your check for the retainer. SECOND EDITION rates will apply to portal-to-portal travel time. For depositions and court appearances requiring travel beyond the Boston area I shall be compensated at the rate of $ per calendar day plus all expenses. messenger services. photocopying. etc. If the foregoing fee basis meets with your approval. I will send you a monthly statement. as prescribed by statute. postage. including secretarial service. setting forth the nature of the services rendered since the prior billing.
Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Babitsky S. SEAK. Falmouth. Mangraviti JJ: How to Become a Dangerous Expert Witness. IN. 2007 Babitsky S. MA. All. National Institute for Trial Advocacy. South Bend. provide at least some information useful for the psychiatric expert. MA. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. SEAK. MA. Falmouth. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. SEAK. Inevitably. MA. not just psychiatry. SEAK.) Binder RL: Liability for the psychiatric expert witness. SEAK. however.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. MA. SEAK. 2002 Babitsky S. Falmouth. 2005 Babitsky S. Am J Psychiatry 159:1819–1825. The Psychiatrist in Court: A Survival Guide. MA. 2002 131 . 2003 Babitsky S. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. as well as those found in the companion volume. Falmouth. this has many useful tips on trial demeanor and related issues. 2008 Ball D: Theater Tips and Strategies for Jury Trials. 1997 Babitsky S. their quality is variable. Falmouth. 1997 (Though aimed at attorneys. Falmouth. These sources are meant to supplement those provided at the ends of the chapters in this book.
Baltimore. Simon RI. New York. in Learning Forensic Assessment. Danvers. Analytic Press. Guilford Press. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. New York. 3rd Edition. Springer.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. at a more advanced level. LRP Publications. Routledge/Taylor & Francis. Wiley Law. 1994 Rabinoff MA. Oxford University Press. 2002 (This is designed as the successor book to the present one. 2001 Isele WP: Under Oath: Tips for Testifying. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Tageh Press. New York. Adams KM. J Am Acad Psychiatry Law 29:313–318. Washington. Mulligan WG. Pennsylvania Bar Institute. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. 1993 Gutheil TG. CA. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. American Psychiatric Publishing.132 THE PSYCHIATRIST AS EXPERT WITNESS. useful for checking credentials. Edited by Jackson R. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. CO. MD. 2003 . DC. Lippincott. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. McClure Company. LRP Publications.) Dattilio FM. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. 2007 (Focuses specifically on the testimony phase of expert work. MA. 2007. Glenwood Springs. 2nd Edition. Santa Ana. American Psychological Association. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. NJ.) Gutheil TG. pp 565– 588 McHale MJ. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. PA. Commons ML. New York. 1993 Dattilio FM. 1995 Kwartner PP. J Am Acad Psychiatry Law 34:482–491. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. 1908 (Purely for antiquarians and those interested in a classic from the last century. 2008 Rogers R. 2006 Feder HA: Succeeding as an Expert Witness. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. Covise LL. New York. DC. Washington. James Publishing. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. Hillsdale. Williams & Wilkins. PA. et al: Expert Witnesses: Direct and Cross Examination. Horsham. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Diamond. Mechanicsburg.) Gutheil TG. New York.
2001 . 1993 Other Media http://www. Beth Israel-Deaconess Medical Center. MD. 2007 Tsushima WT. American Psychiatric Press. http://pipatl. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. DC. Rons SN: Doctors and the Law: Defendants and Expert Witnesses.reidpsychiatry. Disclosure: This author is a founder. American Psychiatric Press. Mahwah. 2003 Simon RI. Washington.org: Web site of the Program in Psychiatry and the Law. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. Washington. 1976 Zobel HB. Gutheil TG. Falmouth.com: A resource-rich site with articles. Anderson RM: Mastering Expert Testimony. Section of Litigation.aapl. and postings. Harvard Medical School.com: Web site of author’s colleague HJ Bursztajn. Wiley. 1997 Younger I: The Art of Cross Examination. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony.) Simon RI. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. and links. Shuman D: Clinical Manual of Psychiatry and Law. J Am Acad Psychiatry Law 35:346–349. and links. 2nd Edition. articles. NJ. 2004 (Study guide available since 2006. http://www.com/forensic/f_psych. A compendium of sources. MA. New York. publishing a vast range of information and offering excellent training courses. with multiple resources. American Psychiatric Press. http://tncrimlaw. Lightfoot. the national forensic psychiatric organization. Washington. WW Norton.html: Another multiple resource site. Erlbaum. http://www. SEAK. Washington. DC. DC. http://forensic-psych.SEAK. New York. DC.com: A host of resources by two top attorneys. All experts should join. discussions. American Bar Association. Kochansky J: The Complete Psychiatric Examination (videotape). Gaynor Publishing. VA. links.Appendix 4: Suggested Readings and Web Sites 133 Siegert M.org: The main Web site for the American Academy of Psychiatry and the Law.
This page intentionally left blank .
two or more lawyers. in the context of discovery. usually derived from statutes.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. Decedent The person related to the case who has died. it may consist of records and documents. or tradition.” that is. the plaintiff is the (live) person bringing the suit. interview data. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. It is not derived from the facts of the specific case at hand. for example. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. which will live on in perpetuity (i. such as relatives or executors. In reality the actual deposition is the transcript of the deposition. Competence is decision-specific and usually based on criteria.e. lab results. on mainframes) and may be used in attempts to impeach the expert at trial. it has been accepted in actual cases that validate its use. there is no generic “competence.” it is always “competence for what?” The criteria for the different competencies are often distinct. the practical and relevant definitions are provided. consult your retaining attorney. and so on.. the person who committed suicide is the “plaintiff’s decedent. 135 . Instead. it is usually “court-tested. legal documents such as depositions and interrogatories.” Deposition Usually believed to be the actual ceremony. Boilerplate Standardized legal language. the criteria for competence to make a will and for competence to stand trial are quite different. that is simply plugged in to the appropriate place. in which the witness. In case of ambiguity. Thus in a suicide malpractice case. Competence The capacity or ability to deal with a certain task. case law.
borrowed from western and noir fiction and film. less ordinary procedures might include covert surveillance of a suspected malingerer. See also “Trial by ambush.g. the fetus in an abortion decision). of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. The role may include representing an unrepresented party (e. usually exchanged between opposing attorneys to alert them to your projected opinion. The IME may be resisted by some attorneys. the judge(s) and/or jury.” Discovery That early phase of litigation. after the civil or criminal matter is set in motion.. this limitation constrains the data gathering and the conclusions that may be drawn from the database. Novice experts see this as a misnomer. but a psychiatrist. and other medical contexts not limited to psychiatry. disability. . The GAL is usually an attorney. “Hired gun” A term. if so. use of a private investigator to obtain information.e. challenging the party moving for a particular result. or an attorney-psychiatrist team. Finding See “Opinion. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. since the goal of the process appears actually to be a decision. and the like. but this is the established term. in “trial by ambush” jurisdictions this step is skipped. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. thus decision maker rather than fact finder.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. interrogatories.. may be used as well. Fact finder Practically speaking. Depositions. The GAL may be thought of as a kind of utility infielder for the court. investigating in the field for the court to determine the situation leading to the proceeding (e. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. in which information is gathered by the attorneys in order to prepare the case. and various motions accomplish some of this phase.136 THE PSYCHIATRIST AS EXPERT WITNESS. says what the attorney wants said rather than objective truth).g.. to visit a nursing home where resides a person whose competence is being challenged) and other duties. IME (independent medical examination) An important part of the discovery process in malpractice.
the court makes the finding that defines the outcome of the case. governed by legal criteria that vary by jurisdiction. The “seduction” may involve flattery. and let the chips fall where they may. In a practical sense. In addition. but without actually retaining. promises of much future work if the opinion in the present case is favorable. falling below the standard of care in the care rendered in the instant case. Of course. the whole truth. the expert. Opinion The final phase. retreat to the oath. the insanity evaluation is retrospective. tell the narrow truth. the expert can retreat when in doubt about what is going on or where the inquiry is going. the “bottom line. these are prepared jointly by attorney and expert. 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. experts should review these carefully for accuracy as to their opinions. because variations from these answers at trial will be used actively in attempted impeachment. sometimes without even informing.” In practical terms. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. the oath is a place of safety to which. the witnesses are to testify in court only with testimony that they can swear to.” of the expert’s efforts. and nothing but the truth. One of the most challenging assessments in all of forensic psychiatry. Negligence In a medicolegal context. Like other sources of bias.” Nonsexual seduction A metaphoric term for various ways in which a retaining (or would-be retaining) attorney attempts to woo (influence) an expert to see the case from that attorney’s viewpoint. and widely misunderstood by many of those. and the like. Interrogatories A set of formal. the whole truth is often supplanted by “the admissible truth. its influence should be resisted by the expert. disliked by almost all parties in a case as well as the general public.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. There are several . “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. See also “Standard of care. when confusion sets in. The expert offers an opinion derived from the database and training and experience. elaborate dinners and entertainments.
Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. which broadly applies to information that should not be shared with others in many contexts. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given.” “reasonable medical (or psychological) probability. and the like. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. Unlike confidentiality. “get the money up front. See Gutheil et al. hearings. The expert should be familiar with the relevant local standard and its definition. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. the origin of the frequently invoked mantra. administrative law procedures. 2001: “The Phantom Expert. .” “51% certainty. Several jurisdictional variants include “more likely than not.138 THE PSYCHIATRIST AS EXPERT WITNESS. Sequester The separation of witnesses.” Though most attorneys are responsible. thus an attorney or an expert might perform a relevant duty for free. SECOND EDITION variations on this ploy. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department.” “reasonable psychological certainty. 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. a few find ways not to pay you what they owe. privilege is narrowly construed as applying in legal or quasi-legal contexts only.” in suggested readings.” and so on.” An expert testifying about a case must be familiar with the relevant standard.” which the expert must also know. this term usually refers to service without payment. particularly experts. 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. Pro bono Short for pro bono publico (for the public’s good). Appendix 4. to prevent the experts from hearing other testimony. by excluding them from the courtroom. the standard is usually national but may be local—the “locality rule. but they cannot by themselves reform the exploitative personality.
This rate should be seen as a rough guide.” Experts should refrain from stating the ultimate issue in their testimony. which involve a victim in addition to the treater and patient. Among other goals such as saving time.” or “duty to warn third-party cases. not as a valid method of determining one’s standards of acceptance. (See also “Opinion. Tarasoff v. “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. but the plaintiff has a thin or “eggshell” skull and is severely injured. Because the usual duty of clinicians is to the patient alone. are sometimes referred to as “third-party cases.Glossary 139 Stipulate To concede or agree to a challenged issue. a blow that would ordinarily not be expected to cause harm. guilty. insane. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant.” Jurisdictions vary widely as to the applicability of this principle. The expert proffers an opinion. discovery proceedings such as interrogatories. accepted as meritorious versus those rejected as invalid. after review. and expert disclosures (see “Disclosure”) inform the other side in advance. 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). The expert has control only over those accepted or rejected. The image is that of a defendant giving a trivial blow to the head of the plaintiff. usually based on criteria. not those that come in for review. but the fact finder renders the finding that embodies the “ultimate issue. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. etc.”) . this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. Ultimate issue The final outcome of the legal process: negligent. depositions. such as whether a witness should be accepted as an expert for the court. these cases. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. In the majority of situations. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. competent. Turndown rate The ratio of cases that are.
Chapter 4 (reference 11). SECOND EDITION Voir dire An expression from the French. literally “to see. There are a number of possible causes. See Gutheil 2007. Waffling An expert’s rambling. the purpose is to allow preparation of cross-examination or rebuttal. work product occupies a special category of privilege and is usually not discoverable. to say” but more relevantly. This may apply to certain communications between expert and retaining attorney.140 THE PSYCHIATRIST AS EXPERT WITNESS. in the present context. “The Problem of Evasive Testimony” in Suggested Readings. evasive testimony designed to avoid answering a question directly or at all. Work product A designation of privacy for material that is part of the attorney’s trial strategy. . 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. discursive.
See Clothing. 105–106 loyalty to retaining attorney. 100–101 Alternative scenarios. 68 honesty of. 32. 78. 16 treater bias. 35 Background of expert. 63 Blackboard illustrations at trial. 8. 49. 121 American Academy of Psychiatry and the Law (AAPL). 70 merit of retaining attorney. 44. 25 Beat the Press (Fulton and Guyant). 68–69 Attire at trial. 106 Beepers at trial. 24–29 social relationships with. 116 Alcoholic beverages. 45.Index Accessibility airplanes. 115 courtroom. 113 Bipolar disorder. 82–83 Announcement of forensic practice. 26–28. 60 Addressing judge at end of testimony. 80 Body language. 52. 4. 3–4 Advertising. 112 first class. 7. See also Demeanor 141 . 52. 115 airline guides. 19 hindsight bias. 16 meeting with before deposition. consulting with retaining attorney during. ethical model. 106 American Psychiatric Association (APA). 4–5. 105 Assumptions. 74. 105–106 American Board of Forensic Examiners. 87–88 Admissions. 14 Adversarial context. 74 Accuracy. 49. 61 retainers. 115 meals. See Ethics informing of availability as forensic expert. 82 negotiations with retaining attorney. 18 Billable time. 77 Bias. xiii. 104 Advocate for truth. 59–60 Advances minimum fee. Dress and appearance Attorneys communication with opposing attorneys. 37–38 Ambivalence. 105–106 Analogies and metaphors. 115 Alarm clocks. 82 of reports. apparent. 65 fighting at depositions. 37 Alterations ethical. 4–5. 17 problems of loyalty and identification. 62 needed for forensic functioning. 117 “Alibi” issues. 9 nonsexual seduction. 30–32 misunderstanding of clinical issues. 47–48 depositions. use of. 4. 15 Agency relationship. 100 of expert opinion. 23–24 Air travel.” 106 Audiotaped interviews. 16 work product privilege. 70 “Attorneys’ Guide to Experts. 16–18.
33 The court. 13–14.142 THE PSYCHIATRIST AS EXPERT WITNESS. 18–19. 58–59 avoidance by attorney. 100 Consultation services. 101–102 Crises while testifying at trial. 116 Coaching. 29–40 documents. legal. 108 Browbeating by retaining attorneys. See Attorneys Countertransference. 83 breaks and recesses during. 61 trial. 77 unpacking at hotel. 33–34 merit of attorney. 32 Building a practice. or experts. 77 Change of opinion. 59–60. 107 Brokering a case when unable to handle it personally. money. 28 Correction of answers at depositions. 135 . questions about. 99. SECOND EDITION Complaint. 17. 4. 7–8. how to handle in written reports. 47–48 Competence issues. 66 Concessions at depositions. 82 Child abuse issues. 121–123 Constraints on time. 82 Breaks and recesses depositions. 118 Counsel. 33 scheduling. 65. review of. 86 Borderline personality disorder (BPD). 81 delaying tactics. 34 misunderstood by attorney. 34 Compound questions at depositions. 70–71. 113–114 Case name or citation in written report. 71 Candor. 30 validity of case. 99–100 Consent Form for Forensic Examination. 24. 137 report. or data. 118 Criminal cases capital cases. 113–115 trial appearance. 14 criminal responsibility cases. 19 Capital criminal cases. 30 Causation. 116–117 metal detectors at. 33–34 threshold question. 103–108 Camera. 97 Case review. 74 Code language between attorney and expert. 86–87 Cross-examination. 28–29 Contingent fees. xiii. 44 nonconfidentiality warnings. 5. 40 Child custody cases. 65–66 Confidentiality breaches as basis for suit. 23 Clinical material. 77. 38 Conflict of interest. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). example of outline. See also Video depositions gazing into the lens. 82 Clothing packing for travel. litigants. 61. 83 Courtrooms. 4 Class action cases. 32. 48–49 involving the insanity defense. 30–32 “nothing to go on” problem. 69 Concentration at depositions. 95 Court reporters. 85–86 Brokerage organizations for expert witnesses. 16. 73–79. 64–65 Cough drops or throat lozenges at trial. 85–86 code language between attorney and expert. 25 Conflicting stories from parties in case. 81 Communication with opposing attorneys. letters to. 48–49. 14 Carry-on luggage. 39–40 Cellular telephones. 62.
88 trial preparation. 135. 113–115 trial. 5–6. 135. 113 Dress and appearance packing for travel. Records leaving behind after trial. 4–5. 84 pauses before answering. 47 nonverbal responses. 85 quotes. 83 trial. Written documentation Doing no harm. 83–86 “yes” or “no” questions. 76–77 written documentation to give listing of. 64 language/word choice. 65 questions and answers. 58–70. Reports. 63 goals of expert being deposed. 64 opinions and their bases. 62–63 concentration during. 135 admissions in. 73 use during trial. 117 Drugs. 68 final preparation. 59 past. 57–58 nondiscoverable material. 66 concessions. See also Confidentiality. 68 fighting by attorneys at. 61. 31 Database. 57–72. 77 unpacking at hotel. review of. See Records. 85 reasons for. 114 . 77–79 Departure from courtroom. 68 of experts at trial. 59 limits of expertise. Privilege Discovery. 34 assessing. 66–67 locking in/limiting expert’s testimony. 75 Decision to take case. 64–65 later evidence affecting opinion given at deposition. 70 “gerrymandering” clinical data. 34. 92 Disabled individuals access to airplanes. 66–67 demeanor of deponent expert. 85 Dangerous examinees. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 62–63 reviewing. 80–82 of examinees during interviews. 64. See Privilege Documents. See also Interviews. 58–60 goals of opposing attorney. 91–92 privileged information. vast amounts of now stored online. 64 priority. 8 Double billing. 61 compound questions or answers. 115 access to courtroom. 97–98 Daubert challenge. 79–80 restructuring. 66–67 143 interruptions. over-the-counter. 80–82 leading questions. 38 of experts at depositions. 69 Direct examination. 26 pauses before answering. 64–65 curious questions. See also Depositions interrogatories. 60 malpractice suits. 69–70 videotaping of. See Parties in case Demeanor cross-examination. 29 Defendant. 87–88 Depositions. 64 objections. 74 Disclosure issues. 116 Drinking. 68 treatises. 59–60. questions about.Index demeanor during. 135. 58–60 inappropriate questions. 34 stenographers in. 68–69 breaks and recesses during. 65 correction of answer. 59–60 assumptions. 65–66 consulting with retaining attorney during.
See also Written documentation Forensics. 25 External consistency of story. sample. 125–128 Gestures at trial. 100–101 billing. 13–21. 38 “nothing to go on” problem. 24 Entrance of judge. 88 Fees. 96 Harm. 49–50 Employment relationship. 80 Fabrics. 15 social relationships with attorneys. 113 Fitness as expert. 15 remaining neutral. importance. 25 Honest advocate. 14–15 Etiquette at trial. scholars in. 28. 60 False allegations. 67 Expenses. litigants. 115 Feedback. 28. 6. 38. See Air travel Food. always soliciting. 25 Flashlight. 32 Good writing. 136 spotting the other side’s. sample. 61. 9 Humor. 78 Global requests. 44 . 28. 44. 51–52 Hindsight bias. 82 nonconfidentiality warnings. 13–14. staying with. 17 special expertise of. 8 Hearsay. 115–116 Humility factor. 52–55 History of expert. See Countertransference Forensic practice. 18–19 honest advocate model. See Meals Forensic countertransference. Reimbursement for travel Expert witnesses. 80 Flying. See also Hired guns definition. See Meals Emotional injury cases. 87–88 Evidence. 15 altering reports.144 THE PSYCHIATRIST AS EXPERT WITNESS. 7–8. 26–28 detailed fee agreement. principles of. principles of. 2 Forms detailed fee agreement. See Fees. or experts. 50–51 interviews. 36 “False memory” cases. 1–3 Experts honesty of. 30–32 of experts. 37 Eye contact at trial. 62 Hired guns. for travel. See also Ethics of attorneys. 107 new facts at trial. sample. 113 contact with opposing attorneys. 28. 67 marketing. 78 Eating. SECOND EDITION Family or friends. 82 Hotels. 112–113. 75 Ethics. 112 Failure of retaining attorney to pay fee. doing none. 28 Fairness. 61. 5. ethical model. issuing. of sexual misconduct. 49–51 examples. 125–128 travel costs. 129–130 standard fee agreement. sample. deposition and trial. 1 functions. 129–130 standard fee agreement. 47–48 cross-examination. 6 High-profile cases. See also Conflict of interest advocate for truth model. 95–96. 15 Honesty. xiii–xiv evidence in. 115 Flip charts at trial. 103–108 Forensic reports. 75–79. 15 loyalty to retaining attorney. 16 marketing a forensic practice. 33 oaths. 16 turndown rates.
138 Marketing a forensic practice. 106 Letters to attorneys. 84 Leaving courtroom. 6 entrance of. 47 standard of care. 37 interference. 112 Judges addressing. 45 records. 45 Juries. See Attorneys Leading questions on crossexamination. 107 lecturing. 45–46. 36 internal consistency of story. 45 Lodgings. 86. 35 priority. review of. 98 145 Laptops. 46–48 social service history. 34–38 “alibi” issues. 106 listings. 115 Lawyers. 35 Involuntary gestures at trial. 105 ethics. 37–38 criminal responsibility cases. 137 Insurance challenges. 112 Meals airplane food. 35 order of. for travel. 39 Interviews. See Hotels Loyalty to retaining attorney. 36 Interrogatories. 83 testimony before. 53. 48–49. 87–88 dismissal by. 57–58. 97 to the court. 49–50 external consistency of story. 49 demeanor of examinee. 106 specialization. 34 . 106 publishing/writing. 34 depositions. level of scrutiny. 52 Malpractice suits. 2 entrance. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 116–117 Media coverage and cases. 36 nonconfidentiality warnings. 103–108 announcement of practice. 18 Integrity. 79–80 Jurisdiction-specific language. 45 locality rules. 16 Insanity defense in criminal cases. 95 Likelihood principle. 87–88 Lecturing as marketing tool. 34–35 plaintiff. 75 respect for. 51–52 Medical records. 37 alternative scenario. 37. 107 strategies. importance of. 38 note taking. 86 Malingering. 38 emotional injury cases. 106 Locality rules for standard of care. 7 Listings as a marketing tool. 115 during trial. 16. 78 Jargon. 18–19. 91–92 recording. 79. 34–35 plausibility of case. 40 videotaping or recording. 99. 105 Judgment. 36 Internal consistency of story. 47 elements of malpractice. 6–7. pros and cons. 35 retention of records. 82 Jet Smart (Fairchild). 43–48 creating timelines for. 36 presence of attorney. suspending. 137 Intervening causes. 49. 75 informing of availability as forensic expert. 107 Interference of attorneys during interviews.Index Identification with retaining attorney. 119 Materials.
15. 97 Preparation for trial. See also Marketing a forensic practice New facts at trial. 49–51 Morality. 44 Melatonin. effect of. 30 Occasions. 26–28 Networking. 50 Preliminary reports. 82 Mitigation of damages. 35. 26–28 fitness as expert. 97 communication with opposing party. 47–48 Outcome of case. See Trial preparation Prescription medications. unfailing. 25 initial contact. 57–58 Objectivity. 57–58 trial. 15 Objections depositions. 118 Metaphors and analogies. 58–60 Opposing expert witnesses. 100–101 Posttraumatic stress disorder. questions of. 97 . 104. 117 Metal detectors at courthouses. 49–51 Practice pointers. not compromising. 16–18 clinical and forensic issues. 114. 67 National Forensic Center. 25 bias. use of. 91–92 Privilege. 24 request of retaining attorney. 82–83 Microphone use at trial. 45. 91–93 Precautions. 85 depositions. 39 vulnerability of plaintiff (“thin skull”). 47 during interviews. 77 keeping notes. 8 Pens and pencils at trial. 47–48 plaintiff interviews. 65 work product privilege. 70 Medication issues as basis for suit. 113–115 Parties in case case name or citation in written report. 65. 115 Preexisting illnesses or conditions. 86 Nonconfidentiality warnings. 64 interrogatories. 16. 88 The Packing Book (Gilford). 14. SECOND EDITION Online. 25–26 Priorities. 106 Negligence. 36 Politeness. 117 Pretrial conferences. 24–25 timing and scheduling. 69 Plaintiff. 24 decision to take case. 71 Oaths. 137 Negotiations with retaining attorney. See also Web sites storage of past depositions. 74. 64 Peer review for testimony. 82. 77 Personal injury cases. 138. 68 Pauses before answering cross-examination. 17–18. 54. See also Confidentiality deposition. 26 Opposing attorney. 38 Nonsexual seduction. while traveling.146 THE PSYCHIATRIST AS EXPERT WITNESS. 80 Misunderstanding of clinical issues by attorney. 5. 4–5. 29 fees. 112 Packing for travel. 81 Postreport negotiations. 40. 137 Note taking importance of. See Parties in case Plausibility of case. 13–14. goals of. 24–29 background of expert. writing for. consulting with retaining attorney at. 74 Prior testimony by expert. See Emotional injury cases Physicians’ Desk Reference (PDR). 34–35 Patience. 66. 82 interrogatories. 137 depositions. 52–55 contact with.
75–76 Seduction. maintaining appropriate. obtaining in advance. 17–18 Self-serving behavior. 138 of witnesses. 35 Records. reasonable medical certainty. 138 Professional meetings. 70 Skepticism.. George. 74 Reimbursement for travel. See also Malpractice suits Suitcases. 24 Publications by expert. 79. 44. 64. 46 criminal responsibility cases. 79 Stenographers. review of. 40 case review. 99 Surprised expert. 28–29 Running shoes. 53. 9. 5–6. 6 Scheduling issues. 112 Reports. 18. review of. 107. 95–102. 26–28. 54. See Breaks and recesses Recorded interviews. 75 Sexual misconduct cases. 68 Storytelling. 107 Standard of care. staying with. 115 Rental cars. 73–74. 31–32. 81 Sworn statements. 92. 112 Reality-testing. 6–7. 97–98 Supporting data for written reports. 85 Readings. 9. See also Written documentation Reputation of expert. 40 Returning calls. 93 Seating at trial. 3 Suicide malpractice cases. 48 Sleeping. 14 147 Retaining attorney. showing toward juries. 82. 97 Rehearsing testimony. nonsexual. suggested. 106 Publicity and cases. xiv. 106 Psychiatric malpractice suits. 104–106. 7. traveling with. 25 Required action. 108 written documentation. See also Packing for travel Supplementary reports. 113–114. 131–133 travel books. 34 malpractice cases. Robert I. 36. 43–45. See Oaths . 51–52 Quoted passages. 38–39. 91–93 personal conflicts. 131–133 travel books. importance of. 34 retention of. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 15. 40 social service histories. 6. 3. 49 database of. 46–48 medical records. See Negotiations with retaining attorney Retention of records. negotiations with. 49 Sequestration. 119 Site visits. 45–46. 112 Respect. 117 Social relationships with attorneys. 54 Resources for suggested readings. 47 Socratic method. 82 Silent treatment. power of. 6 Specialization. 108 Roles of expert. 25–26 as marketing tool.Index Pro bono work. 33. 138 Rebuttals. 113 Relatives. 33–34 CATO model for. See also Court reporters in depositions. 100 Recesses. 138 Standard of proof. 25 Reasonable medical certainty. response to. 7. 16 Social service history. level of scrutiny. 112–113 Santayana. 83 Retainer. 47 Referrals. 66 Simon.
34 for depositions. 78 illustrations. bringing into. 76–77 water. 73–74 language/word choice. 86. 111–118 billing. effect on standard of care. Honesty Turning down cases. versus expert. See also Ethics. 78–80 Telephones calls during trial breaks. 87–88 eye contact. 19. 39–40 Travel books. 80 humor. 77. questions about. 118 Time creating timelines. 92. 117–118 Trial preparation. See Meals packing. 82–83 lunch during. 76–77. 77 breaks and recesses during. 86 cellular telephones. 74 Teaching role. 86 pens and pencils. 69–70 Treatment recommendations. 80 new facts coming to light. 8. 75–79. 87 . 44 Throat lozenges or cough drops at trial. 77 what to bring into court. 115–116 meals. 112 unpacking. 55. 82. 79–80 timing and scheduling tips. importance of. 73–74 practice sessions. 87–88 dress and appearance. 74 presentation. 85–86 conclusion of questioning. 49–51 Tarasoff-type cases. 113 examinees. or flip chart. 37–38 Trial. 77 returning calls. 113 Travel service. 117–118 testimony. 116 Testimony at trial. 25–26 roles of expert. 74 pitfalls. 80. 117 time planning. 13. 82. 77–79 departure from courtroom. 43–56 criminal responsibility cases. 8–9 Treatises. 44. 45–46 Types of cases. 80 pretrial conferences. 112 Traumas. 60. 77 etiquette at. 48–49 emotional injury cases. 116 Treater. 74 Truth telling.148 THE PSYCHIATRIST AS EXPERT WITNESS. 74 using database during. 26–28 travel time. 79–80. 73–90 beepers/cellular telephones. 75–76 supplies. 118 crises while testifying. See also Cross-examination prior testimony by expert. marker board. 115 lodgings. 85. 64 for interviews. 139 Type of practice expert has. 112 Travel expenses. 139 Taxicabs. 77. 14–15. 74. 28–29 Third-party cases. 80 language/word choice. 74 planning. 108 wake-up calls. See Crossexamination demeanor at. 112–113 travel information. 35 flying. 35 keeping track of. 91–92 seating at. 86–87 cross-examination. 116–117 microphone use. 77 courtroom. 112–115 sleeping. 74 rehearsing. effect of. 74. 51 evaluating. 61. 112 Traveling. 81–82 priority. blackboard. SECOND EDITION cough drops or throat lozenges. 77 pointers.
example of outline. 115 in courtroom during trial. 97–98 supporting data. 96 rebuttals. 104–105. 97 supplementary reports. 97–98 jurisdiction-specific language. 82–83 149 Word-of-mouth referrals. 97 occasions. 97 interviews/items reviewed. 97–98 headings. 53–54 Wake-up calls. 43–48 “Ultimate ethical test.” 2. 140 examples of. misunderstanding by attorney. 100–101 preliminary report. 74 Voltaire. 98 letters to attorneys. money. Reports case name or citation. 79. 70. 100 criminal case. 4–5. 70–71 Videotaped interviews. 116 Water during air flights. 108 Work product privilege.Index high-profile cases. 98–99 postreport negotiations. how to handle. 97 opinion. 51–52 psychiatric malpractice cases. 35 Visual aids. 77 Web sites. See also Records. 7 Waffling in answers. 101–102 database listing. 100–101 trial preparation. 44 White noise. or data. 64–65 reports. 82 Values. 100 referrals. 107 Weight to be given to on-site psychiatrist’s observations. 140 Written documentation. 99–100 constraints on time. questions of. 117 Word choice depositions. 97 principles of good writing. 74. 139 Understanding of clinical issues. 99 . 67 Video depositions. 95–102. 97 conclusion. 98–99 conflicting stories from parties in case.” 18–19 “Ultimate issue.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.