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The Psychiatrist as Expert Witness
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Harvard Medical School Boston.The Psychiatrist as Expert Witness Second Edition Thomas G. Gutheil. England . M. Massachusetts Washington.D. DC London.
org Library of Congress Cataloging-in-Publication Data Gutheil. 1000 Wilson Boulevard Arlington. Copyright © 2009 American Psychiatric Publishing. paper) 1. VA 22209-3901 www. 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. cm. For these reasons and because human and mechanical errors sometimes occur. however. Inc. 2. Inc. Inc. c1998. Includes bibliographical references and index. American Psychiatric Publishing. — 2nd ed.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Evidence. therapeutic standards may change. Forensic Psychiatry.S. Food and Drug Administration and the general medical community. I. The psychiatrist as expert witness / Thomas G. Psychiatrist in court.Note: The author has worked to ensure that all information in this book is accurate at the time of publication and consistent with general psychiatric and medical standards. Books published by American Psychiatric Publishing. Gutheil has no competing interests to disclose. Forensic psychiatry—United States. Expert—United States. .. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Gutheil. Gutheil. Companion to: The psychiatrist in court / Thomas G. 2. II. specific situations may require a specific therapeutic response not included in this book. Title. ALL RIGHTS RESERVED Manufactured in the United States of America on acid-free paper 12 11 10 09 08 5 4 3 2 1 Second Edition Typeset in Adobe’s Optima and Warnock Pro. and that information concerning drug dosages. Dr. Expert Testimony. ISBN 978-1-58562-342-6 (alk. W740 G984pf 2009] KF8965.G8 2009 614′. [DNLM: 1. and routes of administration is accurate at the time of publication and consistent with standards set by the U. Gutheil. Moreover. Thomas G.appi. As medical research and practice continue to advance. schedules. p. Thomas G.
truly the wind beneath my wings. . To Shannon.To my children and the hope of the future.
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. . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . 7 Treater Versus Expert . . . . . . . . . . . .Contents About the Author . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . .
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 has taught many clinicians about the interfaces between psychiatry and the law.D. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. coauthored with Paul S. received the Manfred S.D. Appelbaum. M. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. xi . M.. He is a past president of the American Academy of Psychiatry and Law and the current president of the International Academy of Law and Mental Health.About the Author Thomas G. Clinical Handbook of Psychiatry and the Law. Harvard Medical School. and now in its fourth edition. Gutheil. Recipient of every major award in the forensic field.. Through more than 250 publications and many lectures and seminars in national and international fora. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. the textbook. he has received local and national writing and teaching awards. and a Distinguished Life Fellow of the American Psychiatric Association.
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other changes in this second edition include: a glossary of useful terms. and cases or principles that I have learned about since the first edition. interspersed with frenzied bursts of action. 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. in fact. besides the requisite updating of references and suggested readings. additional illustrative examples. and many a practitioner feels the urge to try out this fascinating realm. and at the request of past readers of the first edition. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. Often the greatest difficulties in this profession occur at the outset.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. Forensic psychiatry is growing in popularity. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. expanded definitions of key concepts. it provides tedious stretches of waiting and inactivity. As an aid to present readers. Such service presents many stresses and equally many satisfactions. From another perspective. this edition also contains things I wish I had said in the first edition. The Psychiatrist in Court: A Survival Guide. 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. a model forensic consent form for examination. an expanded discussion of bias in testimony. 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. Moreover. if you feel shaky about the basics. that book is a good place to warm up. In addition. you might consider this book to be next in logical and chronological order to the companion volume in this series. before experience itself has had the opportunity to provide the most durable and valuable instruction. xiii .
drawing on developments subsequent to its first version. SECOND EDITION If your early court experience has not been too traumatic. You who are in that position are also my audience. you. Indeed. I hope you find this approach useful. the later chapters may yet prove useful. This new updated edition. hands-on mentoring and guidance that were not readily available in the past.D. in part because they represent material never covered in other sources. 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. M. The more seasoned expert may wish to skim over the more familiar material in the text. but choosing to go. whenever possible. Thomas G. Gutheil. and informal discussion in a user-friendly tone replaces scholarly discourse. . for such readers. the novice court goer. perhaps— dare I say it—interesting and even fun. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. concrete advice replaces abstract theorizing.xiv THE PSYCHIATRIST AS EXPERT WITNESS. kicking and screaming. Best wishes for success in your burgeoning career as an expert witness. attempts to provide some of that practical.
and Ms.D. Larry Strasburger. M. Harold Bursztajn.. Esq. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. Ellen Lewy for absolutely indispensable assistance with the manuscript. and Shannon Woolley for their careful review and most helpful critique and comments. Harvard Medical School. Stephen Behnke. and to Ms. Resnick.. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. I especially thank “Dr. Candace Love of On-Point Research for valued assistance in compiling resources. Hilliard. to Drs. for permission to use some of his material on writing for court. xv .Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center.” James T. Phillip J.
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both clinical and nonclinical. 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. 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. knowing a lot about a certain topic and having extensive experience therein. an expert witness may review a chart filled with other clinicians’ observations 1 . the question of what makes an expert witness is more complex. to provide information and understanding relevant to the legal system’s concerns. in contrast the expert is entitled by the role to draw conclusions. the 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. In the courtroom setting. For example. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. clinically defined. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. Indeed. In this book. the concept of a psychiatric expert witness.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. is a psychiatrist who uses particular skills. even if those conclusions are based on others’ observations. More narrowly. that is.
” This issue is discussed further in later sections of this text. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. Under this model.. proclaiming their ultimate faith in the jurors themselves. some questions can only be answered by a specialist.” You want someone who will present in a way that the jurors would be inclined to say this. As a rule experts should limit themselves to criteria-driven. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. incompetent. the court system needs expert witnesses in a burgeoning variety of technical fields. For that matter. about matters that are beyond lay knowledge or decision making. then the judge or jury. I believe this person. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. from ballistics to the temperature of coffee sold at fast-food franchises. are the very same ones who had retained me on a previous case. or malingering. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. Indeed. if I had this problem. the jury is free to accept or reject the expert’s testimony in whole or in part. I also want someone who has clinical experience and is doing that which he/she is testifying about. I’d want to be treated by this person because he/she makes sense. insanity.. competence. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians.I do not want someone who [merely] teaches others about it. at times. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. the expert is to educate the retaining attorney. Note in regard to the issue of ultimate findings. However. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. that is. and so on. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. because what an expert offers is “only” a witness’s opinion. opinionphrased descriptions rather than conclusory statements: “in my opinion. 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.. such as competence or insanity. A leading plaintiffs’ attorney described his need for an expert in this way during a lecture: What I think you want the jury to feel when you have an expert in front of them is: “Gee. . What I find bemusing is the fact that. not the ultimate finding that a judge or jury decides.2 THE PSYCHIATRIST AS EXPERT WITNESS.
2) make the fact finder want you to win. at family functions. Despite his doubts. the emperor is initially resistant to Mozart’s novel music. is the adversarial context. however. although basic. are so essential to this work that I review them in the following discussions. eyes glowing with interest. with Figaro kneeling on stage taking the measurements of his marriage bed. causation. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases.Introduction: What Makes an Expert? 3 Another scholar. and 5) argue the case (1). went even further by listing the functions of the expert as being to 1) tell the story. and throughout this book. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. The emperor leans forward. a law professor. The highly experienced defense attorney who had retained me was heard to mutter at one point. syndromes. consider this scene: In the movie Amadeus. he has become engrossed in the story. . surmounted. Mozart begins to describe the opening scene of The Marriage of Figaro. 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. (2. In one scene. The foremost of these. Most clinical work occurs in the context of the alliance. 3) make sense out of the law. and the resulting probabilities. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. clinical entities. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. and the one often most troubling to clinicians. some points. Showing pictures of the deceased at communion. The power of storytelling was captured in a movie about the career of Mozart. conflict between the parties. or resolved or otherwise put to therapeutic use. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. statistics. In this chapter. “Where are the communion pictures?” Pressed for a less cryptic expression. oppositionality. and an adversarial atmosphere are problems to be avoided. demographics. and so forth would have accomplished this vital storytelling purpose. 4) help the fact finder see the facts. pp.
The beginning expert must take pains to be clear on how this overarching consideration affects the work being done.. Com- . Unlike the search for consensus in the clinical setting. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). the retaining attorney or court). you usually do not). Although there may be as many views of the patient as there are team members.e. the court situation is a zero-sum game: one winner. In medicolegal work. in the forensic setting. Like other consultants. In the legal context. files. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you.” a mandate that may trump other claims on your agency. and other papers that the attorney generates in the course of litigation. whether testifying or consulting. You also will be sensitized to certain issues of privileged information and work product exclusion (a term clarified later in this discussion) that may come to bear. The usual guiding principle in such determinations is “the best interests of the child. This specialized topic is beyond the scope of this book. the adversarial context is one of the “givens” in the situation. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. The Prime Question Any forensic psychiatrist.e.. such as child custody evaluations. I define the term work product to include the notes. one loser. you usually work for the patient. two of the victims of this concept are ambivalence and complexity. both of which reside in every case and every patient or litigant. for whom am I working? Your answer will clarify your location within the adversarial framework. In other words. they are not case-related documents and therefore are protected from disclosure. memoranda. in a forensic setting. Note for completeness that certain forensic contexts. ambivalences may be divided between the two parties in the case rather than felt internally by either. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. 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. you work for the consultee (i. must first ask the question.4 THE PSYCHIATRIST AS EXPERT WITNESS. in the clinical context. render highly complex the question of agency. For example. because that position confers greater neutrality and protection for your efforts. as well as the usual lack of a physicianpatient relationship (i. even if it is a compromise (3). SECOND EDITION Compare how treatment planning might occur in the inpatient setting. The question of whom you work for also will alert you to major pitfalls of bias.
reports. correspondence. legal documents. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. of course. litigants. it should. Most attorneys know not to include details of their trial strategy in letters to you. or impression.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. between the “whole truth” and the “admissible truth” (4). One trenchant reason for this approach is to obtain corroboration or discorroboration. convicts. Therefore. The issue here is the tension. defendants. Although therapy usually transpires within the patient’s self-reported data. later addressed. and captured as well in the consent form for forensic examination as Appendix 1. lest they be exposed prematurely to the other side. court-related issues are often matters of public record and public exposure (in open court). the forensic perspective almost always extends beyond the individual examinee. fantasy. suspects. the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. As we will see later. when in doubt. Warnings are further discussed in later sections about the interview itself. and relevant literature. or basis. . The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. be carefully documented. In contrast. The term also suggests that an expert’s opinion rests on a base. with some exceptions. is private and confidential. including records. 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. 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. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. my own or others’ interview notes. your personal attorney can always give you advice on nondiscoverable matters. with exceptions. The retaining attorney will guide you in this matter.
hearsay-ridden trail by which it comes to the team’s attention. — George Santayana Unlike the treatment context. one is guided by its rules. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. though under oath to tell the whole truth. do not demand to be heard: answer all the questions and then stand down when dismissed. In contrast. and to maintain an appropriately skeptical posture. or discorroboration . the common method of the lecture is replaced by another approach: the Socratic method of question and answer. despite the convoluted.. and the like (4). detailed. Yet the court may be driven by principles of fairness. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. and similar signs. absent clear delusions. may be forced into limitations on this promise because of countervailing considerations of precedent. which preclude admission of certain kinds of data or evidence in the name of justice.6 THE PSYCHIATRIST AS EXPERT WITNESS. obvious self-contradiction. always seeking out verification. the forensic practitioner is wise to suspect everyone of having some stake in the matter. fundamental fairness. 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. corroboration. 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. The Socratic Method Although expert testimony has been compared to teaching. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. Once again. hearsay. prejudice. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. The witness should be guided by the maxim: when entering the courtroom. but the Socratic method is one of the mainstays of courtroom procedure. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. This painstaking. In practical terms the expert witness. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. be it moral or monetary. experts in court must play by court rules.. Because a patient in treatment is willingly coming for help.
g. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. and leads physicians of all specialties observing. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. As a general rule. but certainty is absurd. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work.. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. Other contextual clues about the hired gun are overly candid advertising in legal media (e. Although some will cry that there are exceptions. Rather. high-profile insanity cases. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). makes forensic psychiatrists unpopular with their clinical colleagues. reasonable medical probability. For most of us. regardless of its clinical or empirical validity. 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. Note that there may be some jurisdictional variation on this point. sell time. Reasonable Medical Certainty Doubt is not a very pleasant condition. we are paid by time criteria. forensic work is a sideline to our clinical focus. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. All psychiatrists. ask about the local variant. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. honest experts should avoid these approaches to . — 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. including forensic psychiatrists. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. or even reasonable psychological certainty). Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers.Introduction: What Makes an Expert? 7 for all important facts. for example.
there are significant clinical. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. see reference 5 and the appendix to reference 3). because these provide a base of financial stability that enables you to turn down cases. reasoning. There are complexities in this area that should be addressed.8 THE PSYCHIATRIST AS EXPERT WITNESS. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database.) 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. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. First. and ethical incompatibilities with serving as your patient’s expert. Often no absolute standard exists by which to measure opinion testimony. If a clearly meritless case is offered to you for review. (By the way. SECOND EDITION finding work. it is an excellent way to benefit from the teaching of colleagues and to share ideas. 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. and corroborating data. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. summarized as follows (for more extensive discussion of this point. 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). you avoid temptation to skew your opinion. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. legal. case materials. although the clinician is obligated to place the welfare of the patient above other considerations. Thus. and you maintain your ethical compass direction. For various reasons (5–7). the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . “Developing and Marketing a Forensic Practice.” in this volume).
the therapeutic alliance. the expert goes in skeptical. constitutes a bias for forensic functioning. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. a treater begins work with a patient from a credulous position: the patient’s subjective view is the initial perspective agreed on and explored in the dyad..Introduction: What Makes an Expert? 9 the treater gives in court.D. rather than the entire forensic database. in contrast. the wish to avoid paying expert fees that are usually higher than those of treaters.” Although this last is true in certain respects. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. though essential for therapy. From this viewpoint. as noted in the section on malingering above. Third. the treater has usually had only the patient’s reports on which to rely. Master forensic psychiatrist Robert Simon. it is often the case that the outcome of the legal matter has been predetermined entirely by the demographics involved in selection of the jury before the trial even starts. . Some attorneys report that their only use of experts is to neutralize or cancel out the testimony (or even the mere presence) of the experts on the other side. Early in my career. even though this may occur appropriately under legal rules. thus leaving the jury free to vote its “gut. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. The Humility Factor Finally. not the engine. Attorneys seem to display a curious indifference to these incompatibilities. Second. whether because of simple ignorance of the above distinctions.” Even when the expert is the only source of data that the jury receives. M. treaters called into court may violate the confidentiality of the clinical setting. Indeed.” This provocative image should be kept solidly in mind. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8).
Bull Am Acad Psychiatry Law 20:153–162.org/guidance/ethical_ guidance/expert_witness_guidance. 1997 Gutheil TG. 3. Personal Injury and Other Civil Actions. 7. New York. 2007 Barsky AE. Kane AW: Psychological Experts in Divorce. British Medical Journal 337 (#7664). SECOND EDITION References 1. American Psychiatric Press. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 25:233–247. Harv Rev Psychiatry1:4–5. 1992 Appelbaum PS. 2003 Strasburger LH. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Williams & Wilkins. J Am Acad Psychiatry Law 34:14–21. Expert’s Quarterly (Winter): 2. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 2008 . 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. 5. Washington. Wiley. 2006 Catto G: Acting as an expert witness. Available at: http://www. 8. Baltimore. Guilford Press. August 2. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 4. Williams & Wilkins (Wolters Kluwer). FL. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. New York. Lewis Publishers. MD.10 THE PSYCHIATRIST AS EXPERT WITNESS. Testifying and Everything Else You Need to Know. Lippincott. Am J Psychiatry 154:448–456. 2002 Bronstein DA: Law for the Expert Witness. Suggested Readings Ackerman MJ. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Simon RI: Narcissistic dimensions of expert witness practice. DC. White MS. Depositions.gmc-uk. MD. 2005 2. Boca Raton. 6. Lippincott. J Am Acad Psychiatry Law 31:422–427. et al: The “whole truth” vs. Hauser MJ. Baltimore. Gould JW: Clinicians in Court: A Guide to Subpoenas. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide.asp. 1997 Gutheil TG. 1998 Gutheil TG. 2008. Accessed August 5. J Am Acad Psychiatry Law 33:55–58. Gutheil TG. 4th Edition.
2001 Simon RI. 2004 Slovenko R: On the therapist serving as a witness. 2005 Simon RI: Psychiatry and Law for Clinicians. 1990 Gutheil TG. J Am Acad Psychiatry Law 30:10–13. Bull Am Acad Psychiatry Law 15:217–227. Washington. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. DC. Analytic Press. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. American Psychiatric Press. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. 1989 .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. New York. pp 233–248 Rogers R. Springer Science+Business Media. 3rd Edition. in The Psychiatrist in the Courtroom. Bull Am Acad Psychiatry Law 2:119–132. 1992 Dietz PE: The forensic psychiatrist of the future. Washington. Behavioral Sciences and the Law 7:145–180. Hillsdale. American Psychiatric Press. DC. Psychiatric Services 52:1526–1527. Int J Law Psychiatry 13:281–307. Edited by Quen JM. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. NJ. 1994. Gold LH: Textbook of Forensic Psychiatry.
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p. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road.CHAPTER 2 The Expert’s Ethical Universe My first adventure in the witness chair convinced me that it was as unstable as a one-wheeled rickshaw on a downhill course. First.” They may forget that this encounter is not therapy. and its results may harm..” (1. rather than help. particularly an empathically attuned one.. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. the ethical expert be13 . tend to drift unconsciously into a “therapeutic mode. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. It is a control easily within the reach of every witness—the lever marked “truth. examinees being interviewed by a psychiatrist.[Finally] I realized that each witness chair comes equipped with a stabilizer control. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. To prevent such inadvertent abuse or exploitation of the examinee. In this chapter.. their ultimate goals in the legal process. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. S-3) THE EXPERT faces many challenges in forensic work.
indicates the intention of explaining your information to the client.14 THE PSYCHIATRIST AS EXPERT WITNESS. and states.. Rather. denounces your integrity. After settling up any monetary adjustments. If you take every case you review. who—in the ideal situation—accepts this view. defensible. If you turn down most cases you get. you are friends with one of the defendants). this case is over and has been turned down. (Note that even if you cannot support all of the claims proffered in the case.) For example. you decide you cannot support the retaining attorney’s position. In a not-so-ideal situation. the attorney curses your name. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. you must consider whether your threshold for case validity may be too low. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. For symmetry. the turndown rate is the percentage of cases in which. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. You pass this information on to your retaining plaintiff’s attorney. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. 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? . 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. This term does not refer to those cases for which you simply do not have sufficient time or those for which there is some conflict (e. after reviewing. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. and slams down the telephone.g. Turndown rates between 10% and 30% are not uncommon. Therefore. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. either your threshold for validity is too high or you need to meet a better class of attorneys. this case might be called a defense case because the actions of the defendants are. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. impugns your ancestors. if necessary. scoffs at your qualifications. that the firm will not be using you as an expert. The warnings (carefully documented. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. understandably. indeed. thanks you for your help.
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. you could receive a number of good cases. “White. or a number of invalid or meritless cases. inpatient care. Consequently. you take nothing for granted. that is. and the expert becomes the fully neutral observer and reporter.” . One model holds that once the oath is taken. guess. that position is always acceptable. Partisan pressures from the adversary are put aside. In forensic practice. “What color is that house over there?” The novice answers.” Your correct answer would be. only over those you elect to accept. all of which you might accept. for example.” Once under oath. all of which you should turn down. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. they do represent cases in which you have elected not to participate. 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. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. 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. speculate about. and so on. say. the only touchstone is absolute truth as you know it or understand it. This model has been called the honest advocate model. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. The third model and the one probably in most common use might be called advocacy for your opinion (rather than.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. and 2) you answer cross-examination truthfully (see the following discussion). for a particular case outcome). This model is sometimes called the advocate for truth model. “White on this side. Nevertheless. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). An author described the special sensitivity to what one can swear to in this way: You are asked. Consequently.
you owe only serious. A pitfall in this area might be called forensic countertransference. or make whatever use of your opinion that may be of service. yours are providing ethical and valid consultation or testimony or both. under the rubric of loyalty. 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. respect. that is not your problem. but two dimensions of the relationship pose potential ethical problems. you may come to like.16 THE PSYCHIATRIST AS EXPERT WITNESS. this factor would require greater scrutiny of the relationship by the forensic witness. The attorney is free to find another expert. You do owe it to your attorney to level with him or her about yourself (e. that is. but the likelihood of identification bias would surely seem to be greater. Extending this idea. might extensive socializing with the retaining attorney—or. committed quality work.g. with whom you have done many a previous case together. This difference is significant. If the attorney. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. identification with your retaining attorney (discussed more extensively in ). and admire him or her. 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. is misreading the nature of the ethical contract between the two parties. is disappointed that your present opinion is unfavorable. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. similarly. The varying forms of bias are discussed below. this identification may compromise your needed objectivity. 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. discussed further in Chapter 3. your opinion and its limitations. As you work closely with your attorney. . thus. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. and what you can and cannot testify to under oath. out of feelings of being loyal to his or her retaining attorney. First. the skeletons in your closet.. just what does the expert owe the retaining attorney? Strictly speaking. settle or drop the case.” in this volume). you do not owe agreement with the attorney’s position or theory of the case. “First Principles. Recall that the attorney’s goals are winning the case.
it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. 33) However. 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. an attorney. you are expected to manage your countertransference toward the examinee or the examinee’s actions. The situation does reveal some complexity. such as overidentification with the judge or the “system. 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. 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. you may feel unable to examine objectively a child molester. Somewhat idealistically. The fact that the position is more or less neutral does not. 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.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. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. for instance. promises many future retentions. as a clinician. although not common in practice. p. This neutral position is highly desirable for that reason. In this model the attorney lavishes praise on the expert. eliminate other subtler biasing factors. and may add blandishments such as dinners at expensive restaurants and the like. of course. this effort may be termed nonsexual seduction. if the countertransference is unmanageable. you should refer the case.” Note also that. bias can be exceedingly subtle. If you are a victim of child molestation. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. 337). (p. many expert biases are not detected either by the adversary system or even by the experts themselves. The . Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. of course. Similarly. There is no shame in this. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence.
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. Such candor may well enhance their credibility.” Your retaining attorney exerts the pull of retention. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. 261. and identification as above. the true extent of their opinions. none of this information should be a surprise to your retaining attorney. the limits of your data. and their testimony is often unconvincing. loyalty. the limits of your credentials. the limits of your knowledge. p. both pull and push must be resisted. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. the limits of your conclusions. . and the limits of your testimony. The less admirable experts. 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. Therefore. Gutheil and Simon (6). and the hypothetical situations under which their conclusions would be different. Again. while servants beat him with knotted towels. if appropriately asked by the other side. defend those opinions passionately and fiercely on cross-examination. yes. the opposing attorney exerts the push of attempted impeachment. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. Finally. In the process of cross-examination. experts can be separated into two categories. expert testimony is like that.The Expert’s Ethical Universe 19 TABLE 2–1. likely be explored. having become inappropriately enamored of their opinions rather than of the truth.
1992 Lynett E. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Psychiatric Annals 34:260–270. Miller PM. objectivity and fair compensation. 1983 Appelbaum PS. Defense Research Institute. Bull Am Acad Psychiatry Law 20:163–177. 2002 Candilis PJ. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Miller PM: Withholding. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. 2004 Gutheil TG. 3. pp 33.20 THE PSYCHIATRIST AS EXPERT WITNESS. Weinstock R. 38. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. Psychiatric Times. J Am Acad Psychiatry Law 36:195–200. SECOND EDITION References 1. 6. 2007 Gutheil TG. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. DC. 39 Gutheil TG. Bull Am Acad Psychiatry Law 20:141–152. Washington. J Psychiatry Law 28:449–457. J Am Acad Psychiatry Law 32:70–75. 36. 2. Baker TO: Operator’s Manual for a Witness Chair. American Psychiatric Publishing. 1999 Commons ML. Simon RI: Avoiding bias in expert testimony. 2001 Miller RD: Professional vs personal ethics: methods for system reform. Milwaukee. Commons ML. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 8. WI. Martinez R: Forensic Ethics and the Expert Witness. J Am Acad Psychiatry Law 29:336–339. 4th Edition. New York. 2004 4. Gutheil TG: Expert witness perceptions of bias in experts. J Am Acad Psychiatry Law 27:546–553. December 2004. MD. Springer Science & Business Media. 1992 . 2001 Slovenko R: Discrediting the expert witness on account of bias. 2002 Gutheil TG. 5. Int J Law Psychiatry 13:249–259. 7. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. Baltimore. 1990 Brodsky SL. 2008 Katz J: The fallacy of the impartial expert. Prof Psychol Prac Res 33:307–309. Williams & Wilkins.
1991 . 2005 Rogers R: Ethical dilemmas in forensic evaluations. the adversarial system and the voice of reason: reconciling impartiality and advocacy. Greenberg SA: The expert witness. Bull Am Acad Psychiatry Law 19:237–248. 1989 Weinstock R. Prof Psychol Res Prac 34:219–224. Bull Am Acad Psychiatry Law 17:189–202. Leong GG. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 1993 Shuman DW. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. J Am Acad Psychiatry Law 33:386–389. J Am Acad Psychiatry Law 36:167–174. 1987 Schultz-Ross RA: Ethics and the expert witness.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. Behavioral Sciences and the Law 5:149–160. Hosp Community Psychiatry 44:388–389.
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you should—be polite and supportive to your examinee. you still work only for your retaining attorney and. In the forensic relationship. that attorney’s client. 23 . However. When you examine a plaintiff at a defense attorney’s request. treat. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. you may—indeed. as when a defendant. and compromised working relationship. prescribe. but you are not required to preview your findings. forensic work should thus always begin with the question. indirectly. that person is the recipient of your opinions. Although you are usually working for an attorney. you may or may not owe a separate form of allegiance to that attorney’s client. is being treated in a hospital setting. or perform some other such intervention with him or her. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. Your duty is to the person for whom you are working. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. that is usually clear. the patient is your employer. That relationship is also a source of certain pitfalls of bias. or some kind of class action). As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. your employer is less clear. share a copy of your report with the examinee.CHAPTER 3 First Principles IN CLINICAL WORK. make recommendations. ineffectual testimony. considered for examination of competence to stand trial. regardless of what is going on with other experts or treaters. discussed in the previous chapter and later in this chapter.
Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. If this issue is in question. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. Instead. though this distinction may be intentionally obscured as a cross-examination tactic. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. The Retaining Attorney’s Request After the first forensic question. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. In this chapter. politeness dictates that you call the attorney Mr. This telephone call is far from a mere administrative formality.” implying venality and bias. the topic is extensively discussed in the companion volume. Watch for this ploy. I was asked. this approach is self-defeating. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. on purpose—he chose to characterize as “mine. for whom am I working. “Have you discussed this with your attorney?” This threw me. 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 following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. Friendly. The Psychiatrist in Court: A Survival Guide. clinical experience. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. How you communicate with your attorney is important from the outset. more likely. not your personal counsel.24 THE PSYCHIATRIST AS EXPERT WITNESS. Smith until he or she invites you to call him or her John or Jane. or Ms. the term your attorney will be used to refer to the attorney retaining you as an expert. which—either by accident or. and mastery of professional jargon. It became clear that the cross-examiner meant my retaining attorney. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. This point came up in an actual cross-examination in a distant state. refer to those sources. informal discussion should be the format.
it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. Your Fitness as an Expert Should you. that is. board certification. These issues go beyond mere conflict of interest. the hospital. but subtler versions of personal resonance with a case are not uncommon. experience. which is usually (but not always) clear-cut. The attorney can then take or leave this arrangement. For example. personally. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. I don’t know a great deal about this specific subject. if you cannot or should not take the case. 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 recommend hearing about the broad issues of the case first and only then asking for people’s names. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. “Look.g.First Principles 25 chiatrist actually has some knowledge about. what is the psychiatric aspect of this case? A certain percentage of cases will turn out to be ones in which your role is presumed to be that of human lie detector. as indicated by publication. 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. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. 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. have you been the defendant in a malpractice suit. if your aged mother has just died in a nursing home. The Expert’s History as Possible Problem Area Are there any blots on your reputation? Your attorney is entitled to know whether any circumstances could prove embarrassing if brought up by the other side in court. Therefore. the attorney will not have revealed confidential information (the names) to you. no matter how unfounded? Do you have a . you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. In general. but I am willing to become familiar with the issue”). such cases should be reality-tested for the attorney.. This example is fairly obvious. Note that your special expertise should exist against a backdrop of your general competence in the field. and so on. however baseless? Are you now being investigated by the board of registration for some allegation.
SECOND EDITION history of problems in the military. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. for the first time while on the witness stand) is a major expert sin. for instance. in the preceding quote. even if the issues are clinically or forensically totally different. This issue is further discussed later in this chapter. Belatedly surprising your attorney (e. . . a criminal record (no matter how minor). . Second. 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. attorneys are invisible within the court record. credentialing problems in the past. (1) This quote is interesting from several viewpoints.e. contradicts your present position. are there cases in which you have testified on behalf of the other side. Fees.g. “Smith failed to plead . for example. who are the strangers in the courtroom. Finally.. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. . have taken an opposite position or opinion.” when everyone. . they are all corrupt). juvenile offenses. Similarly. knows that it was Smith’s lawyer who was derelict. Time. the ultimate beneficiaries. Do your best to address this possibility early.26 THE PSYCHIATRIST AS EXPERT WITNESS.. you realize that the more you write. and Other Embarrassments A judge in a recent case had this to say about experts: It has been the experience and observation of this court that in all the medical malpractice trials over which it has presided. the more words you might have to eat on cross-examination. 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.In too many medical malpractice cases. or have been retained by one side more than the other? Review this with the attorney. unfortunately. in an economic sense. Reviewing your own published work in a particular area is a worthwhile part of your preparation. Thus.. the court record chidingly notes. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. 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. If you write a lot. As is often the case. not for their time and clinical expertise. 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. including the speaker.
Use timers or check your watch at the start and end of a piece of work and write down the time. and hires me anyway. same as you. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony.” or “I am paid by the hour. Don’t charge for a 90-second telephone call confirming the date of . meaning no offense. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. Like the judge previously quoted. The attorney either takes me up on this offer. whether for psychotherapy or expert witness time. without children bursting in to share their Nintendo triumphs with you).” Other witnesses may take this further: “My testimony is not for sale. choose a fee that you would not be embarrassed to state. only for my time. Indeed. Note also that time spent thinking. First. since the doctor-patient relationship is not pertinent to the examiner-examinee one. this is a pro bono case for you?”). planning. nit pick. allowing me to refer to a junior colleague. ideally delivered in a calm tone of voice and not through clenched teeth.” Yes. is “I am not being paid for my testimony. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. and try to maintain that rate. Doctor. Doctor?” The only appropriate answer. and organizing your forensic assessment is part of the work.First Principles 27 not the forensic context. 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. I know. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). or grasps the point. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. analyzing. but you are made of finer stuff. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. Second. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. this usually means that the client has hesitation or resistance about my rates. or challenge the details. grits his or her teeth. attorneys have timers on all their phones and charge by the split second. I tactfully suggest that. 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. I also recommend not “nickel and diming.” or “Nothing” (and wait for the attorney to crack. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. Therapists who are quite capable of taking an extensive. “So.
Ethically speaking. SECOND EDITION a deposition. in addition. when asked about your fees on the stand. don’t take on the case. To novice experts. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. some of which never . the organization in charge of attorneys’ ethical issues. The attorneys. That august body opined that this was not an ethical problem but a business issue or a contract issue. of course.A. and give the dates to the attorney. it is unfair to your attorney. but your consultation must be free of investment in any form in the outcome of the case. it comes as a surprise that it is not an ethical violation for an attorney to stiff his or her expert for a legitimate fee if there is nothing in writing (and in some cases. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”).e. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. If you don’t have enough time. ideally. when you design your own fee agreement.28 THE PSYCHIATRIST AS EXPERT WITNESS. shame. How much work or time should you devote to the case? This depends on your schedule. basically consultative services. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. Owen Marshall. or other conflict. 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. your fee should never be contingent. Then. You give only testimony. at the end of this book. are free to employ contingent fees. Keep your vacations in mind. you can calmly state them without guilt. you are charging for time regardless of the outcome of the case. among others. It should. for instance.. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. but in my experience. defaulted on payment) by their first attorney. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. Refuse any other arrangement. respectively. they referred me to small claims court. Urge your attorney to bring up your fees on direct examination to get it out of the way. failure to pay is reality. 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. I took my first major “stiffer” to court eventually and received some of my money. even if there is). or for reading a one-paragraph letter. Perry Mason. the good folks on L. You sell only time. I reported him to the Massachusetts Board of Bar Overseers.
your attorney. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. or will your opinion be used by the attorney to strategize without a report. 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. Which comes first boils down to a matter of individual preference. at some point. You may be needed to evaluate a plaintiff (or a defendant. how free from bias or conflict the situation is—finally ask. is more accountable. or is the matter likely not to go to trial? Are you going to be a reporter. what your skills or knowledge support. what your time permits. defendant. working for the attorney or insurer is a far better idea than working for the client alone. nontreatment role is clearer. or even witness. for that matter). You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. You simply may be a consultant to the attorney on the merits of the case at the outset. 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. your first task might be an evaluation of plaintiff. Among other things. Will you be expected to testify at trial. that is. The Final Decision Putting together everything that you now know—what you charge. that role would be ethically incompatible with the objective testifying role. as a professional. In other cases. often in orange-crate–sized lots. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. Do one or the other. As a rule. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. If you are. You may provide rebuttal material for use by others. how you feel about the attorney. Moreover. testator. The usual next step begins with your receipt of written materials on the case. You might advise the attorney on how to cross-examine the other side’s experts or litigants. . rarely.First Principles 29 lead to the courtroom. an individual client. your consultative. going to testify. someone who has to generate a written report. 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.
Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. you may be the ninth expert the attorney has consulted. compared with some other behavior. For example. though you would not necessarily know this. or a tendency to want to withhold information. you must ask the question. the attorney may be employing you in a desperate attempt to clutch at some faint hope. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. In reality. attorneys would call you only for ironclad solid cases in which they have every confidence. Regrettably. On perusing . for that matter. of course. his dangerousness was the crucial issue. followed by review of the documentation. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. The attorney presented the case to me by telephone. even in a consultative sense? In the initial telephone call. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. I recommend listening for indexes of venality. does the side retaining you have a valid case (or even a case valid in at least some aspects on which decisions about litigation or settlement could be made)? Note that in an ideal world. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. a behavior that certainly did not seem all that threatening. the minority are the ones who pose the problems. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. In any case. in relation to which. Scheduling considerations may determine the first task. including by obtaining expert consultation. stating that the patient’s dangerousness flowed from his being charged with slashing tires. does the attorney have merit? As a rule. The point is perhaps an obvious one. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. There is nothing inherently wrong with this desperation. the next task is clear. the emotional pressure of the attorney’s desperation should not alter your objectivity. a tendency to assume you will give the “desired” opinion no matter what the material shows.30 THE PSYCHIATRIST AS EXPERT WITNESS. 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). However. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked.
based on your review of the database. I telephoned the attorney and demanded to know why he had withheld this history. (Note also in this example the value of the previous record. and the result may be your withdrawal from the case. You cannot afford to embark on a course of work with someone such as this particular attorney. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. 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). will argue with you at this point. I decided those were near-enough equivalents. the only safe course is not to work with that attorney. then you have to expect the same in the future. Expert witness work is hard enough without bad faith. but I emphasized that he and I needed to be clear about the fact that I would testify . the benign category. A delicate balance must be struck between reasonable flexibility about. and the arguments fall into two categories. Somewhat annoyed. therefore. for instance. in a competence assessment of an elderly woman. I told the attorney that she possessed “islands of competence. faced with this disappointing fact. Some attorneys. after you have given your verbal report.” After mulling this over. the attorney wants to be sure you understand the import of certain data. however. Obviously. wants to be certain you took note of a particular record entry or deposition statement.First Principles 31 the old record. the wording in which your opinion is couched and the substantive alteration of your opinion.) The second red-flag situation occurs when. If he or she withholds or distorts information or lies to you initially. however. In the second. will acknowledge that they agree or felt the same as you did but needed to use expert input to satisfy their own mandates or those of the client or the insurer. Most ethical attorneys. 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. such pressure should be resisted. the malignant category. Another less knowledgeable group of attorneys will be educated by your discussion. In the first. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. 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. you give your conclusions. arguments are the attorney’s attempt to browbeat you into changing your mind.” He wondered if that could be equally well expressed by “areas of competence. which happen to be unfavorable to the retaining attorney’s case. based on the patient’s history of significant violence. For example.
even if some material is irrelevant and other parts are inadmissible.” The attorney moved on to other matters. One attorney nearly drove me mad by releasing dribs and drabs of material. The attorney asked for major cuts or deletions. multimillion-dollar will contest. the retaining attorney. only the final opinion really matters. “withholding” important data from the jury.32 THE PSYCHIATRIST AS EXPERT WITNESS. This was trivial. however. Your request should be global. tactfully. This suggestion was acceptable. It is important to ask for everything from the attorney. I did not recall because I do not keep that kind of record. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. He asked me to use the dates of the depositions I had reviewed. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. his senior partner wanted to deemphasize the subject by changing some wording. The negotiating discussion moved into argument. shape or form whatsoever. Although delighted with this level of detail. rather than Volume I. In a variant on this issue. in fact. In another case. in a high-profile. and so on. and so on. I had prepared a 22-page single-spaced report. . in an extended phone call. and I accepted. regardless of what may be precluded by rules of evidence and discovery. moreover. and testify to if asked. wanted. I said I would change nothing. I could not ethically omit it. The attorney made a big show of my “concealing” this information. an opposing attorney asked me on the stand when I had received various parts of the database. in any way. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. hung up. to “go over” my report. In yet another case. Volume II. 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. This is the final opinion I am giving here and now. this rationale is especially ill-founded. finally. the remainder of the opinion. under the specious rationale that this method would permit seeing the evolution of my opinion. after discussion I accepted that. that since I had read it and thought it relevant. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. I told him. and withdrew from the case. and did not stop until I said. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. The attorney said he was offended that I should even think he was suggesting omitting something. inclusion of somewhat negative evidence would show objectivity. Since only the final (or courtroom) opinion is determinative. Agreement was struck.
I think this guy is probably not insane. feel free to use it if it suits your own preferences. a situation sometimes occurs that requires special mention. if you will. each element of which may be confirmed or disconfirmed by other material in the database. long pages of deposition testimony drone on about the exhibit. He was photographed doing the crime. As you go through the documents.” It is perfectly appropriate for the attorney (who is obligated zealously to defend the client) to request your aid as long as he or she levels with you about the facts. you should consider some important points. In general. 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. it is up to you. because I’ve got nothing. I find it helpful first to read the complaint so that you know what the basic issues are. but I’d like you to do this evaluation on him anyway. facts. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. However. My own approach is as follows.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. but you can only imagine it because the actual document has not been provided. after your report. for example. I have found that attorneys for some reason often fail to send the exhibits to depositions. 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. directed not toward the patient or examinee but toward the attorney. “Look. This problem is a variant of a countertransference issue. . Recall that a plaintiff can claim anything at first. First. you would expect the attorney to accept the limited contribution you may make (if indeed it is limited) and not to attempt to persuade you to amplify or distort your conclusions. Forensic countertransference is further discussed in reference 2. Referral to another or an additional expert also may be indicated. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. you are creating a checklist. check the documents you receive against the cover letter to be sure you have everything you should. even data of dubious validity. Second. look critically for claims. As you read the complaint. and connections that can be checked against the primary record data and flag those in some way. This ethical dilemma arises when the attorney says. Either undertaking or turning down such a case is a defensible position.
This permits. 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. the witness. Given the complexity of many psychiatric malpractice cases. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. and selection of a safe environment may be required for examining potentially dangerous examinees. makes it harder to focus on hot spots of the case or areas of contradiction in the database. The attorneys on either side of the case may limit the interview time available. cold. Such an examinee-first approach. you are familiar with basic interview approaches). the testator. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. 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). or with only the complaint reviewed. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. If the appropriate amount of time for your examination cannot be obtained. I strongly recommend reading large chunks of material at a single sitting. At this point. the defendant. your interview queries would thus arise directly out of the material. I read the medical records and clinical material or the equivalent. you may also request that the attorney’s office create the timeline. SECOND EDITION Second.34 THE PSYCHIATRIST AS EXPERT WITNESS. no matter how difficult the scheduling might be. accept it as a limitation. or whoever is involved in the case (presumably. Note for completeness that some experts like to start by examining the litigant first. then to check the record to determine whether the complaint or issue has any validity. you will want to interview the plaintiff. however. third. and be prepared to acknowledge this constraint as a limitation on the data.. for example. The Interview After reading the materials. Some discretion. A laptop computer for this task may be quite helpful. you also may want to review relevant literature on the subject.g. advance screening. if you have not already done so. the depositions or witness reports. including your own. insanity in a criminal context). exert every effort through your attorney to obtain enough time to do an adequate examination. perhaps by a paralegal. .
If you are unable to prevent the above intrusions. Not uncommonly. For example. although this irritates some examinees more than writing during the interview. presumably. cuing. then to examine him or her again to clear up matters raised by the written material. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . an audiotape or videotape of an interview may be constructive. but I strongly recommend opposing their occurrence through your attorney. it might be effective and appropriate to examine him or her first. However. when examining for the opposite side of a case.First Principles 35 If the witness lives locally. based on the belief that such an examination can only hurt the case. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. as a rule.” My immediate response. Note that when you are retained by the defense and wish to examine the plaintiff.” was appropriately disconcerting. focusing on making a recording. and suggestions from the attorney present may contaminate the process. For a number of circumstances. then to read the database. Inappropriate interruptions and objections. Verbatim material also can be obtained in this way. that side’s attorney may refuse to allow you to do so. the absence of this datum must be factored into the opinion. 3. unobtrusive note taking probably represents the optimum compromise among choices. Jurisdictional rules may make one or all of these procedures mandatory. however. exaggerating symptoms. The fundamental reasons are as follows: 1. more authentic) responses to your inquiries. to have the interview audiotaped or videotaped. inhibit free-ranging inquiry. “You wouldn’t let me!. 2. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. This decision is legitimate but bears consequences. 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. be spared this burden. Examinees who must travel to see you should. Examinees commonly play up to the audience or recording device. in one case. it is certainly beneficial for teaching and for self-review for quality assurance. 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. for some experts. alternatively. the expert will receive a request to have an attorney or paralegal present during the interview or. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus.
but the following vignettes make the point clearly: For example.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. warn once. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. March. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on.. is whether the case is fundamentally plausible. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. and so on? . This subject is addressed extensively elsewhere (3). in the unpublished 1996 case of Lailhengue v. Do the deviations from standard of care sound hokey. The following are four of the principles that I apply as a generic framework for this purpose.. (4. the parts of which do not refute one another? Did the subject tell the same story to different observers at different times or a varied story? What benign factors might account for this discrepancy? What might this finding imply about possible fabrication. If the attorney attempts in any way to cue or coach the examinee.g. 322) To offer a structure for this stage of the inquiry. Plausibility The first question to ask of the case. “I wasn’t myself when I plotted that elaborate armed robbery”? Internal Consistency Does the subject on the side retaining you present a coherent story.Attorney Larry Cohen (personal communication... SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. distortion. . be it civil or criminal. a psychiatrist interviewed plaintiffs with an attorney present. as when the complaint boils down to. a mass tort in Louisiana.36 THE PSYCHIATRIST AS EXPERT WITNESS. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney.. 1997) at the University of Michigan Law School reports that some attorneys consider it part of attorneyclient privilege to instruct the client to deny that the coaching ever took place. and I want to sue him. behind the examinee). Mobil. 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. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. p..
Finally. or the alleged damages? For example. If the situation did not occur in the manner claimed. 1978). all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. or statements of others? Was either the plaintiff or the defendant out of town on a reasonable alibi at a critical point when negligence was claimed? For example. even if asked to do so or tempted by medical ne- . such as sexual misconduct. remember not to offer any treatment or treatment recommendations to your examinee. 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. as well as disability evaluations and similar tasks. in a sexual misconduct claim later proven groundless. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. the following dialogue occurs between the trial judge and Edward Pierce. observations. he had made several outgoing calls during the time period of the alleged molestation. is the disability due to an actual mental disorder or an avoidance of work for defensive reasons? Is the examinee attempting some sort of retaliation against the defendant for some perceived offense or slight other than that which is claimed? Given the perpetual problem of malingering and baseless claims that are part of the backdrop of every forensic assessment. The phone records aided in challenging the claim by providing a time stamp. 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. or for some criminal claims of insanity. however. whereas the arresting officers and other disinterested witnesses describe a calm and rational person just after the crime? Do other parts of the total database present corroboration or discorroboration of the claims. she assumed the doctor was not present and could not refute her claim. Alternative Scenario In the film The Great Train Robbery (Crichton M. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. The notion of the alternative scenario can be essential for assessing civil claims. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. the outcome. MGM/UA.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. She had apparently established these referents by calling the office and receiving no answer.
you will interview the subject (plaintiff. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. compare the consent form in Appendix 1. but since I can only be useful if I am objective. First. and if you do not. recall that anyone can really be fooled. if not. Fitting Together the Interview Commonly. SECOND EDITION cessity as treatment issues emerge in the interview. Second. Is the patient convincing and plausible? Do the words match the music. in both civil and criminal cases. you can ask for a break (water. Note the fully intentional structural resemblance of the above paragraph to informed consent. I am entitled to make note of that. answer them as best you can. defendant. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. possibly with reporters present. I have been retained by (your side. seem to be called for out of fundamental fairness to your examinee. although I hope you will do so. and others) as part of your exhaustive review of the database. As you are interviewing the examinee. what we talk about here is not confidential because I am not your treater. the court). you are attending to his or her demeanor and its relation to credibility. And finally. 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. my testimony may help your case. in a deposition. and you must keep several issues in mind. the other side of the case. what you say may come out in a report. You will be challenged to weave interview data into the totality of the case. Her emotions were strong and appropriate to the content. unlike what you may be familiar with from other doctors or therapists. such as informing the examinee which side has retained you. The relationship is not a medical one. Third. restroom) at any time. move on to the substance of your interview. 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. she had plausible answers for all my questions. or in an open courtroom. there are some things I need to inform you about. please sit down” but before anything substantive has been said: Before we start. as noted early in this text. hurt your case.38 THE PSYCHIATRIST AS EXPERT WITNESS. Other warnings. Do you have any questions about what I have told you so far? If the person has questions. that is. Only when I subsequently read her deposition did her entire . and treatment offers are inappropriate. or have no visible effect on your case—only time will tell.
on the other hand. The plaintiff ’s failure to take those remedial steps does count against him or her. the preexisting condition must be deducted from the damages. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. especially when they themselves. but then Dr. Besides serving as a valuable lesson in humility. 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 . because of their psychopathology. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms.First Principles 39 case fall apart. For example. because the defendant is not causally responsible for what happened earlier. Such distinctions are extremely significant in the hard monetary realities of the legal case. particular plaintiff vulnerability for which the defendant must be held responsible.. Smith did X at this point. but did that deviation cause the damages. it only means that you’re being conned into thinking that you’re not being conned. believe deeply in their position. but those efforts may fail or be misdirected and may even make things worse. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. 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.” In the civil system. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. Jones did Y and the plaintiff did Z. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue.e. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. a defendant may be mentally ill. the case was highly instructive: interviewees can be extremely convincing. Similarly problematic is the matter of intervening causes: “Dr. The Causation or Connection Dilemma In many forensic cases. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background.
” there may be subsequent posttrial motions. event. 2. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. 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. . keep the latter indefinitely. American Psychiatric Publishing. all case materials except your reports. 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. with permission. Further research may reveal other promising approaches (6). Or. and your interview notes. if any. Washington. or 2) return the materials to the retaining agency. because they would be hard to replace. What portion (usually. and so forth that require revisiting the materials. and then has other symptoms or more of the same symptoms. or incident. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. then is sexually abused by a treater. 2003 3. appeals. what the results were of subsequent events. If you are discarding case materials. In addition. although it has not yet gained broad enough acceptance to be generally admissible as evidence. References 1. 63 Ohio Misc 2d 533 at 534.40 THE PSYCHIATRIST AS EXPERT WITNESS. and what the exacerbations were of preexisting conditions. Another good rule is to discard. they may serve you to recall the case at a later point for research or publication purposes. work by Pittman and Orr (5) on differentiating serial trauma shows promise. two major approaches apply: 1) shred or have a reputable company shred the paperwork. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. DC. 2002 Gutheil TG: Reflections on coaching by attorneys. J Am Acad Psychiatry Law 31:6–9. mistrial claims. Kirby v Ahmad. SECOND EDITION were of a particular deviation. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. Even if a case seems “over. 1994 Gutheil TG.
Guilford Press. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Brunner/Mazel. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. 2005 . 1997 Pittman RK. & Hall. Williams & Wilkins. Williams CW. Zasler ND. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. et al: Medical Choices. New York. 1990 Suggested Readings Appelbaum PS. Lippincott. 1991 Lees-Haley PR. MD. 5. 3rd Edition. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Otto R. 41 6. 4th Edition. 1993 Bursztajn HJ. et al: Response bias in plaintiffs’ histories. 1993 Deaton JSD: Toward a critical forensic psychiatry. J Psychiatry Law 21:33–76. Medical Chances: How Patients. Edited by Rogers R. Guilford Press. Bull Am Acad Psychiatry Law 21:37–52. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). in Clinical Assessment of Malingering and Deception. 2008. Chapman. J Am Acad Psychiatry Law 31:232–238. New York. 3rd Edition. Feinbloom RI. Families and Physicians Can Cope With Uncertainty. J Psychiatry Law 24:3–25. 2003 Group for the Advancement of Psychiatry. Routledge. J Am Acad Psychiatry Law 33:158–175. Assessment 4:321–324. Baltimore. New York.First Principles 4. Hamm RM. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. Gutheil TG: Clinical Handbook of Psychiatry and the Law. New York. 2007 Borum R. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. Brain Injury 11:791–799.
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you already know the person is dead. this bias means that the outcome of an event appears as though it had been far more foreseeable. than was actually so before the event in question occurred. The discussions within this chapter should be considered an introductory survey. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. More practically. for example (the most common claim against mental health professionals). Sometimes forgotten is the fore43 . 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.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. 3) injury to the patient. In a suicide malpractice case. in this chapter. once you know it has already happened. 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. 2) breach of duty. and 4) proximate cause. Generally. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20.
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,
the expert may draw conclusions from the record alone. the next time you read this document for deposition or trial may be 7 years away. Next. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. Because keeping a medical record is itself part of the standard of care. but depositions consist of attorneys’ questions to various parties.” However. On some occasions. you may have to pose your own questions to the parties. 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. . In the process of reading. you may be tempted to say to yourself. 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. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh.Types of Typical Cases 47 the tests ordered. if present. any forensic document) without making some sort of notation of what is significant. nor are the queries necessarily posed the way you would do so. plaintiffs. an underline. a marginal scribble. after the records. of any queries or signs of missing data that the record generates to be checked later or elsewhere. There is something of a translation burden on you to read between the lines to determine the issues. through your retaining lawyer’s permission and intercession. these may not necessarily be the questions you would want to ask. for example. or whatever. opposing experts. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. To save yourself reading everything from scratch each time. you are seeking consistency and credibility. of what this record entry contradicts or supports in the deposition. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. of course). a post-it. of your thoughts and reactions. as different things may strike you on subsequent review. as a separate document. The point may seem obvious. I find it valuable to look at the social service history. or it can be a highlighted entry. or a folded corner of the page. you read the depositions of witnesses. defendants. This notation can be on a separate sheet of paper of similar notes. make some sort of notation each time you read through the record. “This is so clear and memorable that I will naturally recall it later. When reading the deposition. 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. and others.
On occasion. are the most significant. 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. All communications beyond the most mechanistic (giving the opposing attorney’s secretary directions to your office for a deposition) should be channeled through your attorney. These unethical conversations usually have an informal tone: “So. in my (and almost everyone’s) view. statements of the arresting officers. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. Out of the entire panoply of available material on a criminal responsibility case. In those jurisdictions where the issue exists. you can be drawn into the prose by the unfolding drama therein recorded. a case wherein the defendant had or has a major. and so on. SECOND EDITION Although the more information gathered. Of second-rank importance. the more helpful it would be in forming your opinion. The appropriate response is. litigant. what do you think about this amazing case. you may confront the classical poles of the issue. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. Because of the flow of material and its often fascinating content. Doctor.48 THE PSYCHIATRIST AS EXPERT WITNESS. while reading a deposition. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. and records of any treating clinicians from points close in time to the alleged acts. namely. friendly approach into letting your guard down and discoursing freely on your opinions. The truly challenging case lies between these extremes. data gathered at the time of the alleged act. To read critically. weighing the logic of the deponent’s responses. is historical material. eh?” Presumably. For example. or expert. Is this defendant someone who seemed to show . “I think you should talk to the retaining attorney. it is inappropriate to call or write directly to the opposing attorney. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. Criminal Responsibility Cases In cases of criminal responsibility. you are lulled by this informal. but still relevant. exert the effort to stand back from the process.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. remember to consider diminished capacity as an intermediate condition. These would include witness and victim reports. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. your attorney’s confidential trial strategy.
an injury from which he recovered rapidly without lasting effect. for example. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. I find the interview for an emotional injury case to be of primary value. an unrelated accompaniment to the crime. Because of the seriousness of criminal penalties. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. as with all forensic evaluations (6). and so on. The novice expert should become familiar with useful publications on the subject (7. the interview in a criminal responsibility case has the least power of all the data collected. the cause of the crime. 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 mandatory and irreplaceable. a plaintiff drank from a chemically contaminated bottle and burned his mouth. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case.8). the result of the crime. All the interview data must be fitted to the totality of the database. In one case. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law.Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. 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. a surprising number of individuals avoid treatment. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. malingering is especially common and problematic in this assessment. Finally. The plaintiff who claims that his or her major posttraumatic stress disorder (PTSD) and all of his or her subsequent emotional problems were caused by a tiny plastic bottle of vodka striking him or her when falling out of an airplane’s overhead compartment might raise some issues of proportion. The interview also gives you a chance to assess what might be called a sense of proportion. some on .
Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. I had to interview him in his home because he claimed to be phobically homebound. 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. too. only to find that the goods are legitimately accompanied by a receipt. The shopper then may sue the store for harassment and consequent emotional harms. Next to the small table where we were sitting. an answer such as “What is the point? There is no hope for me!” is more problematic (perhaps flowing from a depression) and suggestive of a need for some intervention before the examinee undertakes mitigation.50 THE PSYCHIATRIST AS EXPERT WITNESS. 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. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus.e. 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. Finally. In this situation. History. “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. with intrusive flashback memories. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. This history may represent the plaintiff ’s “thin skull” (i. He claimed to have full-fledged PTSD.. especially idiosyncratic history. For example. preexisting vulnerability. and startle responses. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. but they may also be relevant to assessing damages or preexisting conditions. A question you should ask your interviewee is. as a result of the mugging. SECOND EDITION their own accord and some when given this advice by their attorneys. you again often encounter the previously described problem of factoring out the effects of serial trauma. Such a search can be embarrassing and humiliating to anyone. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. in regard to which the defendants must “take the plaintiffs as they find them”). The interview took place in his basement recreation room. I . however. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. The response “My attorney told me not to” conveys its own obvious message. avoidance. Not only might these provide a context for the injuries claimed. may be relevant.
don’t assume—examine. to get the actual data. had been in the front row of seats just behind the break in the plane. I myself jumped in my chair. 51 This observation was potentially valuable and worth recording. He was strapped into his seat. but at incredibly high levels. yet the observation is valid. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. There is a fundamental asymmetry about media coverage in almost every case. It is. which the average member of the public really doesn’t understand. This case also illustrates the maxim. One of my cases raised this issue.Types of Typical Cases knew this because.357 Magnum close to his ear. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. He slept like a log. the alleged malpractice. Initially. An apartment dweller sued her landlord for failing to respond to the infestation. he saw a jagged metal edge and below that edge. on careful inquiry. the nose of the plane fell into the harbor. fellow passengers. however. perhaps so. not totally probative. who. the former passenger was revealed as a serious. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. On detailed examination. He gave the impression on interview that if you fired off a . looking straight down past his toes. and did not dream. that is. had no signs of trauma whatsoever. On the surface of his story. the case certainly seemed meritorious in theory. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. you may be asked to review a case that has been extensively covered in the media before you have been retained. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. usually not. or crime has generated publicity first. ate like a lumberjack. therefore. In a famous incident. injury. Boston Harbor with freezing. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. This passenger. it seemed to me that this incident would induce PTSD in a stone statue. it turned out. stoic fisherman. then you get the case. As the “moving . A powerful factor in the assessment was a series of photos of the hordes of dead vermin lying about after the apartment in question had been gassed—a picture that was highly convincing. he would have said calmly. High-Profile Cases At one point or another. and. the plaintiff or prosecutor can say anything. unimaginative. the jury ultimately decides. without warning. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. dying. of course.
a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue.) Another stigma of the hired gun is the counsel of perfection. Therefore. the defense attorneys cannot answer the media’s questions. you have to be alert to this potential biasing factor and be aware of the media asymmetries. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. but this principle may be readily overlooked in a media frenzy. “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. SECOND EDITION parties. for example. rip off the covers in moving cars. (Chapter 9. A plaintiff can say to the media. the plaintiff and prosecutor inevitably bias the public’s perception. Even though you may try to tune out the media. in hopes that some of that public will later become jurors. because they don’t want to give away trial strategy. and spill hot coffee over their thighs and sue McDonald’s. selling testimony instead of time. until it is proven in a court of law. consciously or unconsciously. you simply may be reading your newspaper before you are asked to consult on a case. the standard references the average reasonable . plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. however.” in this volume provides more reliable methods of publicizing your practice. Some attorneys may try.” the attorneys have to create the case from scratch. 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. to influence the public powerfully in advance. there is no case until it is brought.52 THE PSYCHIATRIST AS EXPERT WITNESS.” In another case. but so do a number—perhaps a greater number—of venal witnesses. Recognizing this blot on our collective escutcheon will prepare you to deal with or counter the actions of the hired gun in court or elsewhere (10). pushing the case for all it is worth. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. for example. Ninety-nine percent of the time. lest your review should begin with a one-sided perspective. In malpractice cases. In short. of course. “Developing and Marketing a Forensic Practice. None of this trumpeting means anything. By doing this. The defense attorneys must say “no comment” each time.
in the real world. the likely explanation is that the treaterexpert made it up to suit his views of this case. it’s a very serious situation. “If the care had been adequate.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. 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. Some experts believe that physicians are never wrong and always justify whatever the physicians do. Indeed. Another variation on this theme is. the counter to such claims often begins with the phrase “Well. 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.” Many “good ideas” theoretically might have contributed to the patient’s care. “They (the defendants) should have done more. 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. but malpractice litigation hinges on what is required by the standard of care.. one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker.” This testimony is a classic hired gun claim. An even more malignant twist is the made-up or artificial standard. but no one lives real life like that. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. 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. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Waffles are evasive. The hired gun often advances a perfectionistic standard as though it were the average. For example. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11)..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. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. . and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. Anyone always could have done more.
but. In the following example. Note how that witness actually avoids responding. took some blood pressure pills one time in [city]. there is a lot of despair and a great deal of thought disorganization in the patient. More to the point. Is that a yes or a no? In fact it is neither—it is a waffle. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. and that is frequently the hallmark of the hired gun. specifically. reasonably would have been. Note that this entire chunk of testimony is one run-on sentence. actually. then committed suicide. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. 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]. of unpredictability. an emergency petition ideally would have been. 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. he should have been [that is. and where I believe the standard of care was breached was that the patient. a patient had escaped from the hospital. rather than ideally. but that is the answer to a different question. It certainly should have been considered. That was the answer in toto. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. we don’t know whether he stops or doesn’t stop and get [drug] or not. . The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. an hour before that or less signs a 3-day statement and then just disappears. he gets frightened. Getting the feel for how the waffle works takes a certain amount of reading of case material. that this is a patient with some history of a.54 THE PSYCHIATRIST AS EXPERT WITNESS. reasonably should have been issued so that the patient could be brought back for reassessment in terms of their thinking and what possessed the patient to leave. it seems nearly impossible to extract the actual opinion from the thicket of prose. The entire answer took four full deposition pages. Also note that the failure to consider a valid option indeed may constitute negligence. I am not in a position to tell you that that would be the only choice. a reasonable history. goes all the way to [another city]. the mental state and what’s gone on in that patient’s mind is very uncertain. he has taken in despair 10 lithiums some years back.
and that includes they would be safe within or without the community. Int J Law Psychiatry 6:331–350. II: clinical uses of legal standards in the interpretation of subjective data. which makes sure the patient is safe within a structured environment. Yet. a trend of such waffling answers in deposition does set off my hired gun detector. American Psychiatric Press. Baltimore. MD. J Exp Psychol 1:288–299. but that doesn’t mean that it’s without supervision. 4. Science 211:453–458. I would prefer never to assume malice when incompetence would serve as an alternative scenario. References 1. 3. Gutheil TG. 2. 1983 Bursztajn H. New York. Shuman DW. Williams & Wilkins. Edited by Simon RI. for better or for worse. Bursztajn H. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. 7. 2002. 1991 Fischhoff B: Hindsight. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. with impunity. Conceivably. 1975 Tversky A. . Brodsky A. we must consider another possibility regarding the above examples. Kahneman D: The framing of decisions and the psychology of choice. note that one cannot. 3rd Edition. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. In fairness. et al: Decision-Making in Psychiatry and Law.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. DC. 6. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. 2008 5. 1981 Gutheil TG. Bursztajn H. Gutheil TG. Finally. we may be dealing with an incompetence issue. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. Washington. I: malpractice prevention and the use of subjective data. Guilford Press. foresight: the effect of outcome knowledge on judgment under uncertainty. 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. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception.
et al: Detection of malingering in competency to stand trial evaluations. Legal Studies Forum 9:41–53. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. American Psychiatric Press. Bull Am Acad Psychiatry Law 20:409–418. 2004 Knoll J. 2000 10. J Am Acad Psychiatry Law 34:215–223. American Psychiatric Press. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. 1995 9.” J Am Acad Psychiatry Law 35:112–117. DC. Law and Human Behavior 19:493– 505. 2nd Edition. Viglion DJ. insanity. 1999 Gutheil TG: Fundamentals of medical record documentation. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Psychiatry 1:26–28. DC. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Meloy JR. 1993 . 1987 11. Psychiatric Services 50:767–773. psychiatry and the law. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. SECOND EDITION Gothard S. 1992 Gutheil TG: A confusion of tongues: competence. Psychiatr Clin North Am 17:439–446. Gutheil TG: The problem of evasive testimony: the expert “waffle. THE PSYCHIATRIST AS EXPERT WITNESS. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. 2005 Simon RI. Bull Am Acad Psychiatry Law 21:23–36. Washington. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. J Psychiatry Law 28:5–18. Washington.56 8.
preparing for what to expect from the various witnesses and documents. From the viewpoint of the expert. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. if any. Under some circumstances.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. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. Note that some jurisdictions practice “trial by ambush” without expert discovery. there is the period known as discovery. the attorney will likely write the actual prose of the 57 . Attorneys probe and define the limits of their cases. In both cases. 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. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure.
the expert. . In addition. I advise you to withdraw from (or refuse to take) the case. your attorney will advise you as to what requests for information or documents will be objected to or refused. that is an attorney’s function. review Chapter 5 in the companion volume to this book. On occasion. even worse. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. 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. and painting you into a corner. read every such document before it is turned in. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. reasoning that they can always modify their opinions at trial when the right questions are asked. it is always unethical. attorneys sometimes ask you for your tax returns of the last 5 years. Do not attempt to decide what is or is not objectionable yourself. either from clinical evidence or experience or from facts in the database. Depositions The second major area of discovery is the deposition. SECOND EDITION answers for you. guided by your input as to what you expect to testify to at trial. hyperbole hurts you. The Psychiatrist in Court: A Survival Guide.58 THE PSYCHIATRIST AS EXPERT WITNESS. This approach saves you from having to retract misstatements on cross-examination. without retaining you at all. or some combination of the three: getting your opinion. you do not want to be associated with this attorney. Opposing attorneys usually follow one of three agendas. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). For example. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). If you have never given a deposition or you feel a bit shaky about the procedure. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. If you discover this to have occurred. obtaining admissions. 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. based on his or her interpretation of the rules of evidence. However. 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.
They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition.Discovery and Depositions 59 Getting Your Opinion First. depositions are occasionally. and so on. a witness’s deposition or medical record that you had not seen before your own deposition. for instance. the police. This discovery function is a completely legitimate task and one with which you should cooperate fully. inform his or her experts about facts or issues to pay attention to. the attorney is not averse to discovering precisely those points that will help his or her side of the case. On the other hand. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. In this latter context. and so on. the attorney. as the Anglo-Saxons phrased it. and deadlines may dictate this suboptimal condition. scheduling problems. select rebuttal witnesses. attempts to ambush the other side at trial by testimony previously omitted may subject you to abuse on cross-examination for your duplicity in not giving that opinion during deposition. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. This ploy usually can be defused by your attorney. a telephone conference. to empty your wordhoard. This information may or may not trigger a supplemental step for you in the form of an interrogatory. the plaintiff. admissions and concessions of points or . who is in turn obligated to inform the attorney on the other side of your new opinion. When you subsequently receive. 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). if any. however. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. Attorneys also stress that the deposition is their one chance to find out what you have to say. during the course of the deposition. over and above what has been conveyed in reports or interrogatories. but not ideally. the defendant. Just answer the question. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. or a full-fledged repeat deposition. The attorney can then prepare cross-examination. time considerations. you are ethically obligated to so inform your attorney. but this is a subintention within the larger discovery framework. as a way of ensuring that your opinions may be brought out at trial. taken before the entire database has been acquired or reviewed by the experts. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. Of course.
and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. your) side of the case. For example. that justified the admission. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. The answer was no. although the history. Indeed. The points may relate to guilt. or damages—the entire gamut of forensic possibilities. A patient was committed because of threats. however. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. he denied to the admitting physician that he had any violent intent. 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. to kill coworkers. that is. under oath. even though it was the preadmission history. The most familiar variations include attempting to get you to generalize about psychiatry and ignore the differences among the schools of thought within the field. SECOND EDITION views detrimental to the other (i. much was made of this testimony. any contradiction is obviously damaging to your credibility: “You swore this now and that then. negligence.e. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. Your Goals for the Deposition One scholar has described the witness’s goals as truth. not the mental status by itself. On arrival at the hospital. This procedure elicits sworn testimony. You are locked in to that testimony. based on paranoid-sounding content. Accuracy addresses the clarity of your vision in relation to the known facts in the case. of course. fairness. is the final standard. of course. insanity. His mental status was not particularly demonstrative of symptoms of mental illness. At trial. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. When you later give testimony in court. what are we to believe. so that your opinion is constrained or limited in a way that decreases its impact. and accuracy (3). . competence.. In a wrongful commitment case against the hospital.60 THE PSYCHIATRIST AS EXPERT WITNESS. also under oath. raised many possibilities. Truth. 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. conceptually. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness.
try to eliminate distractions. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. The expert should clear a full day for the deposition to be on the safe side. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. this also takes a toll on the court reporter. you were probably not paying sufficiently close attention. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. Occasionally. another deposition date can be scheduled. as noted above. focused. you must be rested. aware of the serious weakness of the substantive aspects of their case. More details about this necessity are discussed later in this chapter. Still others. If you do not go home after a deposition feeling tired and drained. Unfortunately.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. Get enough sleep the night before the deposition. Rather. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). looking for dirt before even addressing the instant case. Some attorneys will have such a primitive view of the essentials of the case that they will flail about over the entire field of psychiatry. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. however. your opinions (and their limitations). For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. To do your job. A small number of attorneys attempt to wear down the expert by sheer passage of time. and vigilant at all times. several factors urge clearing substantial blocks of time for deposition. and your planned testimony. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. if more time turns out to be required. will spend hours inching through the expert’s credentials. hoping to hit the key points if only by accident. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. alert. Prepare for this. intense concentration sustained over hours is hard work. 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. . it is an essential part of the evolution of a case and thus your role in it.
SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. 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. so you were negligent. 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. yes. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. On rare occasions. If the question is compound or complex. you can give a useful compound answer to a compound question. 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. which I codirect. ask to hear it again or have it read back. or you knew and didn’t act. or evidence of a propensity for violence. I don’t—I wouldn’t agree with you there. warning. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. I am serious. 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. it is serious. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now.62 THE PSYCHIATRIST AS EXPERT WITNESS. And the third part of your question is. let me answer all three components. ask that it be broken down. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. in order to determine competence. his act could . in the following example. but it is quite risky and may compromise clarity. Question: So. so you were negligent. the case manager’s lack of understanding might be negligent. If there is the slightest doubt. to be an appropriate way of determining competence in the clinical situation. Second. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. no. A more effective answer might have been. they have to enter into a dialogue with their patient. First.] Answer (by case manager): I don’t think I would agree with that. Question (attorney for staff member): Knowing what we know today. Note. “The patient gave no sign. yes. therefore.
in a vacuum. The following excerpt of testimony given by a naive fact witness. social obnoxiousness in various ways. not the individual element. and too extensive an answer to deposition questions. paranoia. the patient manifested rapid press of speech. challenge.] Yet another deposition tactic is what I call gerrymandering the data. For example. did not constitute sufficient evidence of bipolar disorder (although. Obviously. from a previous shift—is universal practice. not the only possibilities. too discursive. 5 years and hundreds of patients later. Clinical data also can be cut into discrete segments to attempt to refute. When seen. you write down what you have observed. no. the totality of symptoms did so). I sure hope I saw him because I usually don’t write things unless they are true. In addition. which might be used against her nursing colleagues. But this witness has set a standard for herself: “hope for truth. any good nurse does that. “I don’t recall. right. moreover. reveals the hazards of too effusive.] Answer: Gee. or did you make that entry based on information given to you by others? [These are. of course.” would be perfectly okay. Question: Did you observe [patient] attending those meetings. the answer. of course. a patient with apparent bipolar disorder challenged an involuntary commitment. Her answer ignores the fact that the record does not always note the source of the clinical data.Discovery and Depositions 63 neither be foreseen nor be prevented. Gee. that the witness specifically remembers such a detail. vulgarity. testifying 5 years after a suicide. The deposing attorney inquired. “In a vacuum. It is unlikely. making a chart entry based on what you were told by other staff —for example.] Answer: Right. [This is not an answer to the question. or weaken certain conclusions (4). a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. Note that an excellent and self-contained answer to such a question or line of questions is. and grandiosity.”] Question: Is that the procedure in which you make notes. not what others have told you? [The attorney tightens that very screw. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. [The witness sets her own standard of care. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. . the witness should decline to answer yes or no to such a question.
” “I don’t recall. nods. drugs. Insist on finishing your answer to your satisfaction. who cannot take down two simultaneous conversations and produce a clear record. terms. not only for the spelling of your name but for contact after the deposition for questions. and the like.) Your answers must be verbal and aloud. the trap of double negatives in the questions. whose written record will be the actual form of the deposition in all future contexts. your attorney may be trying to call your attention to something. instruct you not to answer. Overlapping dialogue is awkward or impossible for the reporter. in essence. Recall that the written transcript is the durable version of the deposition. Attorneys may sometimes interrupt your answer. and the importance of speaking slowly. and carefully for the stenographer. review the corresponding discussions in the companion volume. a garbled record from too-fast speech wastes everyone’s time and money. If your attorney says. “yes. They are. Giving the stenographer your business card before the deposition is a highly useful courtesy. immediately correct . The pause also allows other attorneys to object. clearly. Other useful basic tips include the following: 1. Correct any errors. not your glib response in the deposition room. SECOND EDITION The Pregnant Pause After the question is asked. 3. 2. Pausing allows you to replay the question in your head and to think about your answer. Also remember to listen carefully to the objection. in effect.” reflect a moment on why the time frame might be important in relation to that particular question. insist on a time frame. shrugs. cannot be quoted out of context. and so on.” “I don’t know. and other myoclonic responses.” or a short narrative response that contains the question so that the response. or you might infer something useful from the type of objection posed. If any of these summary phrases do not trigger recognition. Spell unusual names. pause a moment. lack of time frame. If your concentration slips and you give an answer that you later believe was wrong or even misleading.” “no. (See also Chapter 5 in the companion volume. in the belief that your pause means you have finished. shakes. Do not tolerate this interruption. Speak slower than usual. “Objection. Be careful about overlapping speech. each speaker should finish before the other begins. incomprehensible questions. Some key points made in that volume are the hazards of guessing. The Psychiatrist in Court: A Survival Guide. because the stenographer cannot record winks. Answers Deposition answers are drawn from a surprisingly shallow pool.64 THE PSYCHIATRIST AS EXPERT WITNESS. usually accidentally. but sometimes they do so deliberately to distract you or to break your concentration.
Second. but I can’t say that any of them were [sic] precisely like this one. “Doctor.. if you are concerned specifically about a matter of privilege that may govern your answer.If I said that.. he could accurately answer in the negative. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. exercise this option. the deposition may be paused for that consultation. I tell a lie. the doctor might answer: “Well. . most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. When in doubt. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. for example. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. In a suicide malpractice case. . To err is human. but leaving the error on the record means having to retract it on cross-examination. the entire deposition takes place under oath and under penalty of perjury.” Of course. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. 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. (The question of coaching is more extensively addressed elsewhere [5. Therefore. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. where you are retained by the defense. Two points about this problem should be kept in mind. would you agree that a patient’s sui- . Therefore. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. . have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different.. However. the deposing attorney may ask. . 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. As a deponent witness. because no two fractures are exactly alike.) When to Throw It Away In my consultative experience. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. . I’d be lying. . No.6].” (3.To tell the truth. pp. Therefore. First. this may be phrased as when to throw away the “throwaway” questions.
and move on. Occasionally. With an encouraging smile the attorney looks expectantly at you without saying anything.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. influenced by the TV show Columbo. may attempt to get some off-the-record insight literally in the doorway. and you answer it.” At that point. . But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. not unlike some patients in psychotherapy whose doorway pauses—“oh. Subjected to the silent treatment. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout.66 THE PSYCHIATRIST AS EXPERT WITNESS. having inexplicably found his or her second wind. the novice witness relaxes and loses focus. but you know enough not to get involved in that “thing. check your watch. just one more thing”—contain vital material. on the record. by the way. make the concession. but the lack of the note did not cause the suicide. When the answer is that clear. still. an attorney. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. throw it away. have some water. is “It ain’t over till it’s over. Doctor. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. of course. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. The attorney asks a question. It is not the defendant’s negligence that is at stake in this situation but your credibility. thinking about dinner and work to do later. “Just a few more questions. 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. an attorney may look ostentatiously at his or her watch and say. The moral here. 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. Your retaining attorney may also get into the act. and we’ll be done. now begins to fire rapidly at the witness. Quibbling over the possible exceptions or equivocating in some way helps no one. in the colorful argot of the national pastime.” Wait to relax only after the stenographer has put away the machinery. wait until it gets ridiculous.
and answer that part.. make sure you include the question in your answer on those occasions so that no one is misled. This method sometimes involves carefully answering the question that the attorney should have asked. if you’re grossly suicidal and you have access to guns and drugs and alcohol. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man].. they often fail to realize that they do not have forensic evidence to back up those notions. using categorization. and this response is perfectly appropriate. The only valid answer is that those questions are outside your area of expertise. that we can’t isolate ourselves with notions of “I’m not part of our society. as is “That is outside my area of expertise.” ..” Avoid the narcissistic trap of “I can answer anything.and the answer to that question is . “I understand you to be asking me.” in a manner to ignore those feelings. I find your question a little confusing. but I’m in favor of sensitivity.. “I don’t know” or “I don’t remember” is a fully appropriate answer. 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). 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. rather than asking about. 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. the subject matter. No expert is expected to be an expert in everything or to remember everything.Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. For example. Note how the first question was a total loss and had to be rejected completely.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert... therefore. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. Some questions are curious because the attorney appears to be flailing at. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can.
so I assumed that they knew what they were doing. the next question will be coming your way. “I can continue until midnight. clear. In the specific malpractice context. this implies arranging coverage for your patients should a crisis occur. threaten to go before the judge to plead their points. stay seated and keep quiet until it is over. you assumed it was a medical record in good faith. or facilitate calm negotiation. should that become necessary. firm. for example. and so on. That is as it should be. the parties are really the parties in the case. When everyone is through. that is not your problem. but your belief might interfere with your detection of negligence in this case. occurs rarely may throw the novice witness: a roaring fight between attorneys. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. more pedantic. no matter how generic or basic it may seem. Assumptions The deposing attorney may ask. mediate the debate. . “Did you make any assumptions about the case before you began?” You may be tempted to say. heretofore quiet and almost appearing bored by the proceedings. never losing your cool. The only vital difference is the way in which you speak. This fight is an attorney-to-attorney matter. scream at each other. an attorney became so enraged that he stood up and threw his pen violently on the table so that bits of plastic flew into the faces of the other attorneys. fortunately. In one deposition. Your attitude should convey. I know that’s a good hospital. and far less friendly and instructional than it would to a jury. “Well. and demonstrate other regressive behavior. A situation that. If the admission note turns out to be a forgery. stand up in their chairs. There are good hospitals out there. careful speech that may be more formal. more boring. more technical. Do not do anything. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. you will make it worse.” as it were). Because the stenographer (and not the jury) is your audience. meaning that you assume that the documents are what they seem to be. clear. Clinicians may be tempted to call on their clinical skills to temper violence. The only assumption you should make is good faith. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. after which the expert examines for evidence either way. As noted. unfailingly polite.68 THE PSYCHIATRIST AS EXPERT WITNESS.” This position of timeless patience puts the onus appropriately on the attorney to move things along. authentic or merely theatrical. and you might well know some of them.” This assumption is dangerous because it suggests bias. The two sides. you will be addressing him or her in slow.
the disclaimer at the front disavows its applicability in many forensic contexts. Remember. But both. you may be asked to supply the names of authoritative texts yourself. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. these publications are not uniform in authoritativeness. and innocent until proven otherwise. to make an informal clinical diagnosis. the examining attorney may ask you if a specific text (book. merely official. this is a matter of risk management for the pharmaceutical companies.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias.” Learned Treatises In the course of a deposition. and DSM gives the formal criteria for diagnoses. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. inescapably. but ask to be shown to which one the attorney is referring. competent. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. of course. you cannot take the position that no text is authoritative. including those parts which conflict with your testimony. both sources are “authoritative”: PDR contains the actual package insert information about drugs. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. then. Most modern books and articles have multiple authors or editors. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. In a criminal context. note whether you agree or disagree in general with the stated points.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. 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. may imitate the attorneys by overvaluing these texts and ignoring their limits. Some experts respond that the DSMs are not authoritative. Novice experts. In one limited sense. desperate for stable islands of consensus in the tossing seas of uncertainty. Comparably. chapter. Moreover. Be sure to maintain a sense of proportion about these references and their utility. have their limits. For example. After reading the entry carefully. Alternatively. yet the clinical diagnosis and treatment still may meet the standard of care. or article) is authoritative in the field or in the subject of the current case. no one wrote a previously published book or article with the exact case in mind in which you are involved. However. the parallel assumption would be “Sane.
Also. laboratory values. and you may have to furnish copies to opposing counsel. Give both (or several) points of view if they exist. the camera is . review your files as diligently as if you were going to trial. p. whose transcript will endure and be used for any impeachment possible. in the video deposition. especially if details remain unclear or if over time the clinical condition has changed or evolved. The Video Deposition A modern wrinkle on the procedure is the video deposition. rehearse—the details of the links between your conclusions and the facts. Obviously.. statements. actually visiting a site may be important. this conversation is protected. but this is not your problem. In some cases. remember to go to bed early.. you will need to review a wide array of information. SECOND EDITION When quoting the literature.e. you also may want to meet one more time with the attorney’s client before the deposition. Under some circumstances. 571) Final Predeposition Preparations Before the actual deposition. Meet with the attorney and review the issues. Arrange to do so with the attorney sufficiently early. outlines or summaries for quick reference) may be subject to subpoena for the deposition. The usual audience of the standard deposition is the stenographer. or “cheat sheets” (i. check the accuracy of any numbers (9). You must exercise some care in these discussions as they may be discoverable. police reports. Your attorney then can communicate with the retaining attorney. let the attorneys determine whether it is discoverable. well before the deposition. Many attorneys anticipate this problem and send only bland correspondence. record notes. (8. Above all. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. Frankly admit if anything has been removed from your file. and so on so that you can buttress all your conclusions with specific elements from the database. it is wise to review—and if necessary. some discuss details of trial strategy in their letters to you. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent.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. In addition. The latter may be privileged. Any notes. If you are really unsure about something.70 THE PSYCHIATRIST AS EXPERT WITNESS.. be balanced and accurate. consult your own attorney. summaries.. In contrast.
and pedantic level of the ordinary deposition but in basic. the deponent expert should always ask for a personal copy to review in preparation for trial. After the Deposition Always ask to read and sign the deposition. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. In the current economy. but errors can creep in. 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 video deposition presents a number of possible pitfalls. not at the ponderous. “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. read it very carefully. but under some circumstances the notarization can be waived. the expert may wish to retain a copy for teaching purposes after the case is over. At least one copy of the transcript is returned either to the court reporter. and the deponent signs under pains and penalties of perjury. trial-suited English. this time in a permanent record. juror-friendly. or the deposing attorney for distribution to the parties. Remember to keep your language level. If the deposition has been particularly instructive or noteworthy. If the expert is known to be unavailable for the trial dates. who may see the video displayed in addition to—or. . of the word “not. at times. careful.Discovery and Depositions 71 the audience. instead of—your personal appearance in court. As in the trial described in the next chapter. the only vehicle) for the expert’s testimony. Most court reporters are extremely good at their jobs. the video may also serve as the vehicle (in this case. Recall that omission of a comma. say. you are under constant scrutiny. you should try to direct your gaze toward the camera lens. jargon-free.” and rendering. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. This approach risks eventually being papered out of house and home. representing the jury. checking for errors and typos.” 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. and must beware of inappropriate gestures and personal bodily attentions. the retaining attorney. When you receive the deposition transcript. My personal favorite is when the phrase.
Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. Child Abuse Negl 17:571–572. The Practical Lawyer 39:55–63. 5.72 THE PSYCHIATRIST AS EXPERT WITNESS. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. The Practical Lawyer 33:69– 78. 2005 Suplee DR. IN. 1982 Gutheil TG. Simon RI. Bull Am Acad Psychiatry Law 10:17–27. MD. Williams & Wilkins. Gutheil TG. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. SEAK. Suggested Readings Babitsky S. 7. MA. National Institute for Trial Advocacy. 1996 2. MA. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Woodruff MS: Deposing experts. 6. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 36. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). legal fictions. 4. J Am Acad Psychiatry Law 31:6–9. SEAK. MD. Simon RI. WI. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. Baltimore. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. 39–40. Falmouth. 1983 Gutheil TG. 2008 Rice B: Malpractice: how to survive a deposition. Willliams & Wilkins. Falmouth. SECOND EDITION References 1. 6th Edition. 2003 Kaplan HI. 2001 Baker TO: Operator’s Manual for a Witness Chair. J Am Acad Psychiatry Law 29:313–318. Mills MJ: Legal conceptualization. Vols 1 and 2. Defense Counsel Journal 4:174–179. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Med Econ 82:45–48. Defense Research Institute. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. Milwaukee. 8. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. Lippincott. 2007 Gutheil TG: Reflections on coaching by attorneys. Current Psychiatry 7: 25–28. 1987 . 1993 Malone DM. 9. J Am Acad Psychiatry Law 34:18–22. 1999 Babitsky S. South Bend. 2006 Gutheil TG. Baltimore. 3.
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. the same six Ps should be reviewed but with a slightly different emphasis. 73 . For the expert. is recommended as an orientation. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. If you are uncertain about the guidelines for trial preparation. review that chapter. trials do come around every so often. If you are testifying away from home. examining the companion volume. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. 1. and they are the subject of this chapter. Preparation. and devising means of locating key passages in the database quickly. In this chapter. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. pled out. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. I review some of the basic courtroom procedures. For the expert witness. Nevertheless. The Psychiatrist in Court: A Survival Guide. I addressed the six Ps of trial preparation. Planning.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. 2. For experts who have spent little or no time in court. settled.
Consider taking a taxicab to local courts to avoid parking hassles. Pitfalls. Practice. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. Even more distressing. and your past experiences.74 THE PSYCHIATRIST AS EXPERT WITNESS. 5. and the data relevant to the other side of the case. location of restrooms. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. 3. 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. Clarify in your own mind how you plan to deal with questions about your fees. Most of these matters are best handled on direct examination where some measure of control can be exercised. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. you need to know through choice and practice how you will convey your opinion to the jury. the contradictory evidence. your publications (especially those relevant to this case). and all such details. Review the weaknesses in your opinion. and select useful examples from your experience to make central points. The pretrial conference is probably one of the most important stages of preparation for trial. what previous testimony has been given. and the expected cross-examination. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). You should rehearse ways of expressing information to the jury. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. . the relevant literature. 6. On cross-examination. You also need to hear how the trial is going. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. Clarify and confirm your travel arrangements. parking arrangements. 4. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. If you have a disability. what the judge is like. Confirm travel arrangements and other details. Define the limits of your testimony. the location of the trial. It is not enough to know the database. and what the emotional climate of the courtroom is. Presentation. Insist on this conference if the attorney is equivocal or resistant to the idea. practice sketching any visual aids you will need for the courtroom blackboard. Build in contingency plans for the possibility that the trial extends into the next day at least. the unknown issues. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. Pretrial conference. 7. the floor of the courthouse on which the courtroom is located.
Such a hearing. Regrettably. this kind of potentially valuable hearing and screening device can also be abused (2). in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). The topic requires more extensive discussion (1). may occur prior to trial (occasionally. sit down. and whether the testimony will fulfill the legally required expert function in the court.. which are sometimes in obscure locations in older courthouses. experts are not allowed to be present in court for the testimony of any other witnesses. rise for the judge’s entrance. where the jury will be and what . you will find it valuable to locate the restrooms and telephones. particularly experts.S. the best approach is to exercise care about the methods used to reach conclusions. 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. Once in the courtroom. Wait in the public seats until actually called to the stand. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. but if you are the only one standing.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. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base.e. 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. and to ensure that recognized approaches to the subject matter are chosen. When you are allowed to hear the testimony of other witnesses. Supreme Court case. From the viewpoint of the expert. to be able to articulate the bases and reasoning behind those conclusions. much valuable information can be gained and the tone of the room determined. Practical Matters Preparing to Go On Many courts sequester witnesses. its methodologic reliability. Some judges take offense if they find you perched cheerfully in the witness chair before they have entered and ready to testify before being given the go-ahead to the proceedings. that is. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. named for the plaintiff in an important U. Before going into the courtroom.
What to Bring Experts and their retaining attorneys vary in whether they prefer. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. 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. a particular citation is. or your own table of contents devised for more extensive documents.76 THE PSYCHIATRIST AS EXPERT WITNESS. Each preference has its pros and cons. Note again the importance of having and practicing a plan of organization. even for experienced experts. The expert should determine which of these two approaches is more suitable. My own preference is to strip down what is brought. essential medical records . the entire database is usually present at both the attorneys’ tables and therefore is immediately available. only a copy of the expert report that is already in evidence or only a curriculum vitae). allows you to read the full context from which the cross-examiner may have extracted a misleading snippet.g. yellow self-stick notes. SECOND EDITION the room looks like from the hot seat). the attorneys will have it). The expert appears more confident and knowledgeable about the case. the opposing attorney cannot search through them for something with which to impeach your testimony. The downside is the need to remember a vast amount of detail and to recall where. in an often extensive chart or deposition. and ensures the accuracy of your recollection by direct verification. Key documents might include my report and interview notes. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. On the other hand. 2) as noted. When no documents are before you on the stand. if needed. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. dog-eared pages. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. Recall that in almost every case.. as are all the substantiating data. 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). and 3) you may become lost in excessive data. Note that some anxiety is normal. tabs. 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. having the whole database on the stand permits greater support of your testimony with specific data from the documents. while the experts are testifying.
If you are completely uncertain about what to wear to court. I can use my table together with the attorney’s copy of the deposition. affidavits. ensure that they are turned off.The Expert in Trial 77 (pruned to relevant periods if needed). and cutting-edge high-drama fashion or excessive informality. your mode of dress should convey the fact that you are a professional in the courtroom on business. Above all. 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. do not wear new clothes. This table of contents enables speedy reference to key facts. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. Do not wear or carry your cellular telephone or beeper. Avoid either ostentation. It is unclear whether either strategy is superior to the other. perhaps comfort should rule. depositions. if you must. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. Arranging for a cup. eccentricity. the bored juror. ornamentation. Stick to the conservative business mien. showing off how busy you are and how court is taking you away from really important matters. Demeanor Being on the stand is not unlike being filmed. For depositions of less central players in the case. I take to the stand a one-page table of contents (i. Indeed. and you will not go wrong. Arrange appropriate coverage so that you do not have to worry about being reached. during breaks. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. 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. testifying is thirst-provoking work.. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. A handy pen or pencil. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. or carafe of water is an excellent idea. what you wear should fit well and be well broken in. in the sense that you are usually under observation by someone—the bailiff. and similar data. the defendant or . see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. If I need the actual page or quote.e. glass. It is important to include material that supports the other side of the case so as not to produce (or seem to produce) a partisan trial database. the bailiff usually will keep it filled. and check in. or if you must. highlighting marker. Finally.
Your identity on the stand is that of teacher. obnoxiously facetious. Make your point because it matters. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. Even when an attorney attacks you. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. fluffy. or obtuse to the seriousness of the issue. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. With discretion. such as rolling your eyes at the jury when a particularly fatuous question is asked. attorney moves on to another subject]. and you are unfailingly polite. humor directed against yourself may show that you do not take yourself too seriously. or degrades you. If you become huffy or outright mad. flip. all such chips are apparent) is particularly unconvincing. Beware of “involuntary” gestures. 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. impugns you. as follows. not of the attorney in question. Scholars recommend keeping the front of your body open (by not folding your arms. and stuffy. Attorney (with a slight sneer): Isn’t it true. it is important. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. but of the jury or the entire process. SECOND EDITION plaintiff. Such reactions may be misconstrued as disrespectful. you know or should know that it is not personal and has nothing to do with you. an attorney—at all times. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. Avoid personal body attentions (such as scratching) as much as possible. however. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom.78 THE PSYCHIATRIST AS EXPERT WITNESS. Without such alliance. There is no reason for a teacher to get mad. for example) as body language consistent with candor. humor may seem disrespectful. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. even when someone else is speaking. . A witness with an apparent chip on his or her shoulder (and in court. you win the exchange. you are likely to be too involved and therefore possibly biased. If the attorney is hostile. sneering. Be clear. not credible. and you want the jury to understand it. demeans you. Doctor. Doctor?”). get interested in what you have to say and stay interested. and sarcastic. 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 “waffley. yet may ultimately give up on your testimony after straining to hear for too long. even inhibited souls will nod if they can hear. they are usually poorly received by juries.. to accept a possibility as such (almost anything is “possible. Haggling with the attorney over a tiny abstruse point. Although you are a teacher. Finally. project. avoid discussing unconscious dynamics unless absolutely needed for your point. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. or waxing argumentative rather than instructive. pedantic. Testimony Direct testimony should unfold in an organized manner. the concept is sometimes rendered mathematically as a 51% certainty. Keep in mind the expert’s role in telling the story in a coherent. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. concede a remote possibility and move on. to concede a point that really doesn’t mean much. what fools these jargonists be). adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. or respond to jargon. not stuffy. explain. If no microphone is provided. not just a classroom exercise. Because jurisdictions differ as to the precise definition. the most common beginner’s error in the courtroom is the inability to “throw it away.The Expert in Trial 79 Being fluffy means being too abstract. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide).” but only a few things reach reasonable medical certainty). Direct your extended remarks to the jury. evasive. It is not the same as “certainty” (100% sure). blunts your argument and weakens your credibility. As occurs during the depositions noted in the previous chapter. understandable manner that brings the details together in a recognizable gestalt. If you must use. a juror who cannot hear may be hesitant about saying so in open court.e. and to admit that rules have exceptions. but without intimidating staring. Speak to the most distant juror to be sure your voice is audible.” that is. jargon laden.” Make your point as concretely as necessary and back it up with hard data from the database. to agree that some things happen sometimes. In general. If in any doubt about your speech volume. ask if you can be heard by the farthest ranks of jurors. or prone to nit-picking. good teachers are lively and interesting. making roving eye contact with various jurors whenever possible. as a result of your careful and thoughtful preparation with your attorney. the trial is a human process. They are not excessively academic. . If a microphone is available. theoretical.
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
may record every pause. Recall that this is direct examination by his own retaining attorney. That is how this kind of antidepressant or mood elevator works. Respect the juror. I have been impressed by their ability to grasp what is at issue. do not underestimate juries. As you can grasp by merely reading this response aloud. The jury hears the testimony twice—an aid to both memory and persuasion. grunt. and throat clear that you emit on the stand. The hazards of lack of practice are revealed by this following segment from an actual murder trial.The Expert in Trial (draw a barrier) this process. any testimony from this witness would be bought and meaningless.” but this appreciation is lost if the jury cannot understand or follow your description. because a seasoned expert will simply use cross-examination as an opportunity to make some of the same points made on direct with different emphases. Consider practicing such a description with your attorney or colleagues or friends.” preferably said in a mildly contemptuous tone. In the same way. the best cross-examination is. Adventures in Cross-Examination For experienced experts. it is numbing to a jury. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. This is a powerful argument for at least organizing your thoughts before you begin to testify. stutter.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. such an avoidance of cross-examination is sound trial strategy. some scholars assert. The expert is on direct examination by his own retaining attorney. Um—as the events became closer to the—um—incident itself [the murder]. the jury usually appreciates being given the “inside story. as if to convey. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. What will cross-examination be like? What is the jury to make of this apparent hesitancy and doubt? Remember also that—as is clearly seen in that excerpt—the court reporter is entitled to.” Realistically. “I don’t care to waste my time on this whore. 83 Although this mode of explanation may seem cumbersome. just like putting your hand over the vacuum nozzle. if you do that. and slavishly but perfectly appropriately. even if the technical details are lost in the shuffle. Over the years. the chemicals stay in the spark gap and keep working so that your mood is lifted. the dirt stays on the floor. . and the expert has theoretically prepared to tell the story in a coherent manner. depressed— um—and seeking help. “I have no questions for this witness.
the attorney’s wish or need to have the client see the attorney doing something. no problem. equivocating hurts you. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. The following are some examples of the last (all are leading questions. First. “Although the present case is a clear exception to that rule.. 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. “that’s generally true” and you may be too flustered to challenge the action. and even the attorney’s competitive feelings directed toward the expert. such as the previously listed leading questions. or publications. or the answer may be obvious from the question (i. The attorney may know the answer to a particular question from the expert’s report. attorneys do not perform this simple but effective maneuver. 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. Throw it away. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. Instead.. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. If you want to say. however. surprisingly. interrogatory.e. can they not?” • “Another expert might come to a different conclusion. It is better to say. or alternatively.”) or exhibitionism (“Watch me shine!”). Doctor?” The only possible truthful answer to all the aforementioned questions is yes.84 THE PSYCHIATRIST AS EXPERT WITNESS.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. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. never ask a question to which you do not already know the answer.” are almost always answered yes on the theory that almost anything is possible). deposition. “That’s generally true. Even those attorneys who opt to engage in cross-examination are usually (but. the attorney asks closed questions.” . ask only questions to which only one answer is possible (fittingly. questions beginning “Is it possible.. isn’t that right. but in this instance it is not.” the attorney may move on to the next question after you have said. the question answers itself ). which may be asked on cross. The tight rein on which you are held may make it difficult to get your opinion out there. SECOND EDITION Most often. what you say is often true in other cases.
we are going to take our midmorning break right now.” The break gives you ample time to think. Doctor. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. the attorney may quote something that you wrote or lectured on. Practically. The key word is truthfully. to consider your answer carefully. and to allow your attorney to object. Always ask to see the context if you do not immediately and completely recall it.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. say it. or have you dozed off? It is best to state.” Listen with intense attention to the question. if not. We’ll reconvene in 15 minutes. a judge may even decide to declare a recess: “While you are thinking. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . Breaks During breaks that occur in the middle of cross-examination.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no.” and do so. and think seriously about whether yes or no will represent the whole truth. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. Quotes On cross-examination. some attorneys advise not discussing your testimony.” This response may be foreclosed by the judge directing you to answer anyway. and a mere yes or no may fail to convey the “whole truth. state that you cannot answer yes or no. After Rodin Pause briefly before answering each question to allow replay of the query in your mind.” “no. some sources suggest answering at the outset. 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. At times. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. to be sure you are clear about the question. Scholars liken agreeing to this either-or approach to signing a blank check. a question will require more time for prolonged thought or searching of your memory. if needed. “I’m going to take a moment to think about that. You took an oath to tell the whole truth. At such moments. If either will do so. consequently. this type of questioning means that you have only three answers available: “yes.
you have confused loyalty to your attorney with the oath to tell the truth. Crises Various crises may strike while you are on the stand. Subsequent communications may be labeled supplementary reports to keep the sequence clear. Later. you would have been obligated to so inform your attorney. your opinion. Some experts want to call their offices during breaks. because it is based on data. I recommend avoiding eating heavily. even worse.86 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION sions with your own personal lawyer are protected). If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. incomplete. For the lunch break. had it changed your opinion. Your final opinion. This change is as it should be. you may have written a report after reviewing some quantity of material. and some additional material may have come your way just before the trial (which. 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. is your actual trial testimony. 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. such as the discovery that you have left a key document in your suitcase across the courtroom or. as a “preliminary” report. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. you may have been deposed. The Final Opinion During the course of expert consultation. Now you must testify on the witness stand. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. The thrust of this line of questioning is to convey that your opinion is premature. In theory. others find telephone calls distracting and let whoever is covering for them handle things. in the trunk of your car. . could change with complete validity based on some new fact that you hear for the first time during the trial. An aid to this conceptualization is to label your first report. Use your own judgment and knowledge of your biorhythms. but let’s assume it did not). or inadequately grounded in data. These include biological and physiological crises or circumstantial ones. if requested. the one that counts.
Do not stop to chat or debrief with the attorney. and go. one of the parties or even one of the attorneys reaches out to shake my hand. wave at the jury box (“So long. or emit other social behaviors. to see the outcome. you seem to be acknowledged . at odds with your objectivity. fans!”). childish. and both grudgingly acknowledge that neither has any more questions for you. Forensic etiquette requires that you just leave. Your Honor. Do not be inhibited by fears that. for example. it is preferable just to hang in there. Deal with the problem and then continue with your task with restored focus. Your job as expert is important to the case. as always. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. More troublingly. Do not hang around to hear what other witnesses say. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. by needing to go to the bathroom. when you are through. “You (or the witness) may step down” or “Thank you. that’s all. The judge dismisses you by saying. you exit. No one knows the effect of these gestures. and serious distractions impair your work. nod politely to the jury. If you do shake hands. The End of the Affair Finally. or to learn of other subsequent activity.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). it invariably conveys the strong suggestion of partisanship. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. The judge will almost always grant this. What do you care what happens? You only testify under oath. measured breathing. “Thank you. This behavior conveys too much interest in the outcome for someone who is not a party to the case. it poses a dilemma of a no-win situation. If a delaying tactic is not used. While this is a common and respectful courtesy.” At this point you say.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. conservativeness is probably better (the discreet nod rather than the glad-hand wave). entitled. stretch your limbs behind the screen of the stand. you will appear inept. Ask the judge if you may take a brief break for personal reasons. Focus on slow. On occasion as I have left the courtroom. and sit more upright to relieve tension. or weak. get down from the stand. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. Doctor. sickly. Some more extroverted experts thank the jury out loud.
Surprisingly. as much as possible about what happened and why it happened. J Psychiatry Law 28:235–251. SECOND EDITION for good (but partisan) work. Gutheil TG. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. 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. 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. Because this brief volume can serve only as an introduction. as always.88 THE PSYCHIATRIST AS EXPERT WITNESS. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. Forces beyond your control and outside your testimony—such as the demographics of juror selection. if you do not or you ignore the outstretched hand. 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. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. For your personal development as an expert. Take only your report. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. “juror countertransference” toward the attorneys. while acknowledging that experience is still. the best teacher. however. and the like—impinge on trial outcome. It is perfectly appropriate after some time has passed to call and ask the outcome. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. some forget. A far more detailed analysis of testimony can be found elsewhere (5). you seem rude. by letter or telephone. 2000 . References 1. If you have traveled far with a heavy load of database materials. this task is for the lawyers. Finally. Most courteous attorneys will inform you later.
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
but things happen. In extreme circumstances. SECOND EDITION for months without any forensic activity whatsoever. I know you have a busy schedule. The tension here is that some courts. You must do the best you can with what you’ve got. The second priority is depositions. hours. and other-side attorneys are reasonable. comes before a report. Because your attorney has the most interest in your presence.M. sharp. but during the very week that you have scheduled four weddings and a funeral. the trial should take precedence. You can count on your eyeballs the number of times this clockwork model actu- . maybe 2. Trials take first priority. You’ll be out of there by lunchtime. although obviously fewer persons and a shorter time frame are involved than are for trial. so let’s put you on first at 9:00 A . This type of schedule is close to reality. of course. with a deposition for a third case. and serious matters hang in the balance. flexible.. the other side may be willing to have your testimony inserted into their side of the case. the hierarchy of urgency and therefore attempted postponement (or at worst. two trials in different states will be called simultaneously.e. he or she will be exerting the greatest efforts to make it all work out. and telephone calls to resolve them. for example: “Doctor. negotiation.. You may have a little room to maneuver in terms of the order in which you testify. a forensic interview. with suitable preparation of the jury. cancellation) is as follows. add another layer of challenge. If a trial and a deposition are scheduled for the same time. and accommodating. 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. Travel glitches (discussed in Chapter 10. others are not. I can’t imagine my direct examination taking more than an hour. attorneys. The last two priorities are interview and report. “The Expert on the Road. You’ll probably be cross-examined for 1. An attorney who planned to have you “bat cleanup” (i. As a rule of thumb. tops. Large numbers of people are involved.” in this volume). court dockets are crowded and leave little flexibility. Because your reports can be done at any time of the day or night. which also require several people to synchronize their schedules. requiring two parties to match schedules. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. Such a conjunction of scheduling conflicts requires a great deal of diplomacy.” Smile politely when you hear these words but make expansive plans. theoretically.92 THE PSYCHIATRIST AS EXPERT WITNESS.
difficult choices may have to be made.” In addition. and family. The jury takes a long midmorning break. 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. 2004 Kearney AJ. a judge will treat the time between 9:00 and 9:30 A . partner.) Your So-Called Life Another scheduling issue almost entirely ignored in the forensic professional literature is the question of events in your personal life that may conflict with forensic commitments. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. the odd juror gets stuck in traffic. The subject may represent some kind of taboo because it is rarely discussed. Occasionally. Why? Although some judges are scrupulously punctual. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. Gutheil TG. In the end. Commons ML: Trading forensic and family commitments. J Am Acad Psychiatry Law 32:356–358. 2006 . no clear conclusions can be drawn. Although my colleagues and I tried to study this issue formally (2).Some Pointers on Expert Witness Practice 93 ally occurs. The aforementioned realities make it essential for you to clear as much time as possible for a trial appearance and to arrange contingency coverage in parallel. Washington. J Psychiatr Pract 12:50–54. it is not uncommon for an out-by-noon case to extend into the next day. (More suggestions on scheduling are included in Chapter 10 in this volume. some are not. However. negotiation may be possible for some scheduling conflicts but not always. 2002 Reid WH: Forensic practice: a day in the life. The attorneys wrangle over whether some document relevant to the next witness is admissible. Thus. 1996 Suggested Readings Gutheil TG. Bull Am Acad Psychiatry Law 24:533–546. 2.M. The judge assigns a long lunch and hears another few motions just afterward. Gutheil TG: “Paraforensic” aspects of expert witness practice. References 1. DC. American Psychiatric Publishing.
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I focus on writing the full-fledged forensic report. allowing careful legal analysis and reflection on whether you will be helpful on the case. a description of an independent medical examination for a personal injury suit. In all such cases. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. a defendant’s criminal responsibility. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. or for a disability determination. to serve as a witness. or a physician’s deviation from the standard of care. for a worker’s compensation claim. 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. some basic principles on letter writing to the court are described and are not repeated in this chapter. or a full evaluation of a person’s competence to stand trial. an attorney. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. or to serve on a jury. In this chapter. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. 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. 95 . In The Psychiatrist in Court: A Survival Guide.
Despite these useful functions. painstaking preparation. the report may present materials or approaches that the attorney does not wish to share with the other side. has generously and graciously granted me permission to cite some of his advice on report writing.D. Without referring to other documents. Resnick also identifies the “four principles of good writing”: clarity.” Dr. all should govern the form of the report. the reader should be able to understand how the opinion was reached from the data in the report. of course): 1) no report. without detailed discussion of the bases or reasoning behind those conclusions. for which I am most grateful (where I cite his material. These are all powerful arguments for careful thought. . In this chapter. “Reports should be self-sufficient. which presents your database and conclusions only. I emphasize the third form. Resnick. Phillip J. 2) a summary report. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. Obviously. detailed report. SECOND EDITION Alternatively. It should be just long enough to cover the essential information but not so long as to exhaust the reader. brevity. In other situations. 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. According to Dr.96 THE PSYCHIATRIST AS EXPERT WITNESS. Resnick. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. and 3) the full. Critical documents should be briefly summarized within the report. and meticulous proofing and review of any report you produce. may take three major forms (with variations possible. M. For similar reasons. because the first is self-explanatory and the second is an extract of the third. which in that jurisdiction is discoverable by the other side. It should contain everything that you need to support your opinion and no irrelevant material. Forensic report writing.. Consequently. It should stand alone. simplicity. which states all of your conclusions and the analysis of all the relevant substantiating data. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. then. I refer to him explicitly in the text). and humanity. General Remarks The report as a whole should meet certain criteria. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. the attorney may ask that you not furnish a report.
Smith v. Identifying data can be presented in a number of ways.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs).” The Database After identifying the occasion. that is. or the type of case in a civil matter (e..” • “I examined Ms. legal pleadings. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. sometimes called the referral. The Occasion The occasion. John Johnson). emotional injury or psychiatric malpractice). of the report should address the question of why you are writing this report. .. additions. Include any interviews per- . The heading should also include your letterhead and the date of the report. the charges in a criminal case.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report.. think of your report as a memorandum and use a standardized format. reasoning that the occasion is obvious from context. the case or docket number if known.” and subsequent contributions.” Some attorneys. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest .g. otherwise. police reports. Jones et al. 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). use a standard business letter format. or State v. One way is to provide the case citation or caption in whole or in brief (e... testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses... In that case. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. Resnick is included at the end of this chapter. I examined (name of examinee) with regard to (forensic issue).. or emendations should be titled “Supplementary Report. and depositions.g. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. One model by Dr.
(or. The remainder of the report is thus treated as optional reading. SECOND EDITION formed and their date and length. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge... it is my professional opinion. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. all medical reports. First. held to a reasonable degree of medical certainty. for example. and so on. chronologically. the overall basis is described as both the database (all the material reviewed in the case. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . logical grouping (e. attorney. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. Note the wording.g. including interview data) and your total clinical background of training (what you were taught) and expe- . all depositions). no convincing case has been made for the inherent superiority of either approach. The rationale for placing the conclusion last is that such a structure allows the reader to develop an evolving (and therefore deeper) sense of the expert’s reasoning as it may (or may not) lead to the conclusion. The expert escapes the accusation of being too conclusive in voicing the opinion by providing the steps and stages of reasoning that point to the outcome. . the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). A typical conclusion in a malpractice case. 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.98 THE PSYCHIATRIST AS EXPERT WITNESS. you are free to choose your favorite. Although each group has a rationale. that. about the disposition. in the treatment of (plaintiff ). or other) is free to stop there and make decisions about future directions in which the process should go. The documents may be listed alphabetically. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. or according to some natural.
although representing the core of your opinion. the expert should scrupulously avoid assuming one side is correct. standardized legal language). is essentially boilerplate (i. If your conclusion comes at the end of the report..” In every case. sometimes frankly contradictory. offer alternative opinions. Dr. but occasionally. and credibility as an expert witness. usually. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. it is predictable that plaintiff and defendant tell different stories. Resnick explains. the defendant usually has admitted the act for which he or she is charged. be it competence.e. Resnick states. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. As Dr. or other.. you can present the supporting material in several ways. Dr. “If there are two versions of the facts.” Multiple Realities In civil cases. effectiveness. 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). a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. this section should contain extracts of previous material directly supporting the points you are making. more likely than not). Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. “Reasons supporting opinions should be clearly and fully stated. Remember that the conclusion. If your conclusion is stated at the outset. insanity. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. The reader should not have to use his/her own inferences to understand the point. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. your conclusions should be presented in .e. Second. In these cases. Supporting Data After the conclusion. 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.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). sometimes different spins on the truth. Third. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. In criminal cases involving the insanity defense. Finally. malpractice.
. A challenging gray zone is negotiating about wording. on the contrary. then . you may receive requests to alter the report in some ways. Whichever approach you actually take in your written report. (Remember you must be candid about everything you believe to be true. asking for the addition of new material not supplied to you earlier. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. these should be recorded. Limits. and shortening the report by aggressive editing. or to change the substance of your opinions. summarizing. even if it has been removed from your report for brevity. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner.100 THE PSYCHIATRIST AS EXPERT WITNESS. but generally there is no inherent problem .if defendant’s version is true.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. and Rebuttals If there have been any constraints of time. and deleting. A case example was discussed in Chapter 3 (“First Principles”) of this volume. 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). judge. or agency for which it has been prepared. which make for a stronger report. it would be a weakness not to acknowledge these factors candidly. or data (such as inadmissible material.. These are not weaknesses of the report. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. SECOND EDITION the following form: “If the allegations are true. Some requested alterations are fully ethical. to alter or misrepresent facts in the database.. Constraints. interview of plaintiff blocked by attorney.” This approach prevents your seeming to side with one party in the case.. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. Postreport Negotiations After your report is finished and has been sent to the attorney. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording.. money. There is no absolute guideline for this procedure.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. then . then .. some are not. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case.
13. 14. and effect of emotional injuries—three common problem areas. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. 3. Be careful about changing wording concerning issues of causation. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 15.1 1. but it may get you started. 7. 16. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 6. 8. 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. 11. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. 17. Resnick’s outline for a typical criminal report. intensity (likely. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 5. 12. 2. The Criminal Report: An Example The following is Dr. 4. 10. extremely likely). . 9.
23. pp 577–605 Weiner IB: Writing forensic reports.102 18. 1986 Melton GB. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. pp 511–528 . 20. Wiley. Petrilla J. 3rd Edition. Hess AK. SEAK. Edited by Weiner IB. Falmouth. 21. Am J Psychiatry 143:164–169. 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. 19. et al (eds): Consultation. 24. 1987. New York. Guilford Press. MA. 22. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. Poythress NG. 2007. 25. THE PSYCHIATRIST AS EXPERT WITNESS. New York. in Handbook of Forensic Psychology. report writing and expert testimony.
CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses.) 103 . two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. “Yes! We (or the corporation) will take your case. We retained an industrial designer to help create a logo (highlighting crimson. a letterhead. and a typeface for our official stationery. (I believe this excluded only admiralty practice and the law of the sea. to connote the Harvard connection). We will let you know shortly which of our directors will be working with you. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. and inefficacies. In this chapter. Unfortunately. heard of. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. We sent this announcement to every attorney we had ever worked with.” The ability to say yes to all comers seemed like a good idea at the time. such an affiliation would mean that we would be able to say to any attorney who called us. In the late 1970s. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. and we drafted an announcement. embarrassments.
The Key Approach As time went on.104 THE PSYCHIATRIST AS EXPERT WITNESS. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. and expense resembled our own responses to offers that come in the mail to sell us insurance. . clinicians) led to forensic referrals: word of mouth. Ordinary advertising in Lawyers’ Weekly. is suspect and not reliable as an approach (see also Chapter 4. for example. The balance must be struck between dualities such as generating word of mouth versus hucksterism. inform. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. word of mouth). The Delicate Balance In all approaches to marketing.e. would you get a straight answer from the attorneys you would want to work for? Strategies Various approaches to building word of mouth are recommended as you develop and market your forensic practice: announce. opportunistic. We received a few form announcements from two or three firms about their offerings. “Types of Typical Cases. an expert’s marketing strategy shifts to generating favorable word of mouth. Support for this theory came from Harvey Research in 1994. that is. Based on this reasoning.. but the net effect for all this time. The result was tantamount to letting a drop of water fall into a large lake. and unspecialize. write. list. and pride and confidence in your work versus hired gun certainty or grandiosity.” in this volume). it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. Most recipients almost certainly awarded our announcement the coveted circular file disposition. commercialized hustling for business—or the appearance thereof. SECOND EDITION All this effort did nothing. thought. 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. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. speak. sharing useful information versus being pushy.
Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). If you are moving into a new town. the announcement should display the professionalism that you plan to bring to the work. Serving as a guardian ad litem (GAL. and factual. previous associations with the attorneys on the other side. or other reasons. Opposing attorneys. Describe those services you can authentically offer. 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. Although your forensic peers may seem to be your competition. Some experts replace the announcement with a minibrochure: a single. you may wish to send a short. of course. the GAL may do a preliminary survey of the psychiatric aspects of a case. trifold sheet of fine paper with a brief description of the expert and the services. It is unclear whether the brochure is superior to the announcement and may be better utilized as the second item of information sent after an initial communication. Avoid any hype. if you have one. and 4) judges. in effect. they may turn away a case because of a conflict of interest. Thus. First. they may think of you at that point. informative. Finally. too little time. it should be tasteful. . and lawyer neighbors and friends who might pass your name along. polite letter informing local judges of your availability for forensic services. Alumni bulletins and class reunions are also opportunities to get the word out. For your clinical peers. or use it in some other appropriate way. 3) attorneys. including listing services you are not truly expert in. then reporting to the court. 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. If you inform your peer groups about your availability. they will be useful to you in several ways. and send it to attorneys and clinicians. Attorneys whom you can inform include your own attorney. Among other roles. will see you in action in deposition or trial. hand it out at a lecture. 2) your forensic peer group. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word.
106 THE PSYCHIATRIST AS EXPERT WITNESS. or commentary and have it published. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. or established continuing medical education programs. The APA Public Affairs Office provides some guidance in dealing with the media. Write In our computerized modern age. which are often seeking a stable of experts to comment on medicolegal stories of the moment. 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. the topics of which appear on the screens of attorneys’ computer searches. Instead. You will be exposed to attorneys and legislators. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. SECOND EDITION List Listings can be effective as well. Finally. departmental conferences. may be helpful in dealing with the media. Although it is useful exposure and a valuable resource to write an analysis. and similar humiliations. such as clinicians and lawyers. sign up as an entry in an existing lecture series. but the wounds of experience are probably and ultimately the best teacher. review. these publications may be explored. and media exposure may open you to crank calls. no one will show. In my opinion. . One reference. Your podium demeanor may convey at least a little about your expected performance on the witness stand. Become active in your district branch legislative committees and processes. such as hospital grand rounds. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. Admittedly. this skill is acquired. ambush journalism. both of whom may be potential referral sources. 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. try to become involved in local media such as call-in shows. many referrals to psychiatrists come from publications. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). however. Beat the Press (2).
It does not matter if the case is trivial or small potatoes. based on your fine performance at the deposition. place in the profession.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. If you decide to use a Web site.” This is a losing strategy. but you will obtain valuable exposure. 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. even at the outset. 2. as it were—but the Web site is perhaps the most explicit. one turn to the Dark Side of the Force. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. Conservatively stating your incontrovertible credentials (actual appointments. skills. and interest. some broker organizations guarantee your opinion. wherein you follow the ancient maxim. I will work only on high-profile. widely publicized mass murders. You will derive no income. a point that cannot be overemphasized. by definition. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. and your course as hired gun may be marked. Consider taking on some pro bono work as well. 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. no matter how slight the issue. It may then take you years of work to unblemish your reputation. Beware of making or seeming to make extravagant claims for your knowledge. modesty. training. Begin your career by unspecializing. certifica- . Do not bend the truth to satisfy the attorney. In fact. integrity must be your watchword. and other aggrandizing statements that are. Have the site professionally designed with attention to taste. In the same vein. some critical considerations are the following: 1. extremely public. trivial cases allow you to be observed in action by potential employers. Be extremely careful about posting your qualifications. including this one. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. From the absolute onset of your career. No case too small. What About Web Sites? In the modern era the use of Web sites has increased for all professions. 3. Even minor.
choose only those experts whom you would be confident to have on your side if you were being sued for something. sound. recall the value of brokering. References 1.” Although you are feeding the competition. at times trying. specific required expertise). It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. Building a practice on word of mouth is slow. 2003 Fulton S. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. Salt Lake City. and effective. but its importance cannot be overstated: return telephone calls promptly.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. UT. including attorneys and fellow clinicians. SECOND EDITION tions. J Psychiatry Law 31:5–19. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. American Book Business Press. for referrals. 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. “I can’t take this case (because of time. you are also revealing yourself as a good first stop on the search for a good expert. You are saying to the calling attorney. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat.108 THE PSYCHIATRIST AS EXPERT WITNESS. conflict. Finally. Return telephone calls are the easiest marketing device and one of the most effective. . publications. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. In analogy with clinical referrals. 2002 2. etc. but no other method is as reliable. Sadoff RL. and demanding of patience. Remember to thank your referral sources. but I will take it upon myself to find somebody good who can. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. Guyant A: Beat the Press. Dattilio FM. Additional Pointers The issue may seem trivial.
these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. WW Norton.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. Massachusetts. New York.. 1997 Feder HA: Succeeding as an Expert Witness. CO. Inc. Glenwood Springs. out of Falmouth. . 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. Tageh Press.
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or interviews.C H A P T E R 10 The Expert on the Road: Some Travel Tips for Testifying Away Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy. the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips. this chapter will be too obvious and not relevant to your needs. I address some tips and strategies for the expert who is inexperienced in traveling to cases. William Reid. and his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter. Simon. seasoned travelers may skip the chapter entirely.. mockery. The author is indebted to Robert I. examinations. As always. and opprobrium. In this chapter.. M.D. 111 . IF YOU TAKE ONLY CASES in your immediate neighborhood (such as might happen when you work for a court clinic) or if you are already a seasoned traveler. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. M.D.
matches. Another useful reference is Jet Smart (2). Consult with significant others for their opinions if needed. cars.112 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION The basic situation I describe is one in which you travel by airplane to the city where the trial (or deposition or interview) is being held. especially if you have not worn it for a while. Opt for crushproof fabrics and materials whenever possible. the process takes even longer. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. and is in good repair. travel agents. Try on everything before you pack it. and hotels directly and save you much time and stress on the telephone or online. testify or interview the next day. and one pair of shoes. the Internet. Still other guides are provided in the suggested readings at the end of this chapter. to ensure that it still fits. and general information can be obtained from books. polished shoes for men and women). you may make the appropriate adjustments. Running shoes also allow you to sprint through airports to . These services can book flights. stay overnight in a hotel or similar setting. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. 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. 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. and your colleagues. especially in flight. Some General Recommendations Travel Information Travel guides are available everywhere. looks professional. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. 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. Alternatively. and return that day or the following one. on rare occasion. For cases that involve land travel. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. the emerging online travel services (Expedia and the like) may prove useful.
which are. or 2-hour long-distance calls to your paramour. 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. If the trial runs longer than a day or so. if you are flying to a case and use air travel time to review the case. It is possible. then. Seek equitable division of costs for multiple-case trips. but not alcoholic beverages. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. Separate business from personal comfort. The Ethics of Billing Bill strictly according to your fee agreement. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. and for the regular three meals.. Avoid checking baggage if you can. do not bill for sleep (you do it anyway). My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. in-room movies. the literature is relatively unhelpful (the issue of double billing.g. You have enough to worry about . is addressed nowhere in the forensic literature). do not bill separately for that work because you are already being paid a day rate. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. massages. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. for example. 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. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. you may bill for that time but not for the ticket because the first case paid the whole trip already. For example. for one telephone call to the family. Until data emerge. for one or two telephone calls per day to the office to check on things. a useful principle is to avoid double billing in any form. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. fortunately. 1 day at your day rate. If you review a different case on the way back. rare but extremely stressful when they do occur. because some law firms are slow to reimburse hotel and plane expenses).
you may opt to wear the suit or outfit on the plane and guard it in transit. It is definitely a basic principle for assembling your kit. eyeglass screwdrivers and replacement screws. extra shoelaces. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. which may also be prepacked. these roll-alongs often fit either in the overhead compartment or. and cleaning. a small. These should include sewing items. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. Remember also that your kit should contain items that permit repair. light flashlight for power outages and searching under beds for lost items. decongestants. but you may wish to experiment with a friend’s suitcase. it is indispensable to your successful travel ventures. In general. What you take should have similar versatility. a small roll of duct tape. and pack the rest of the gear. In addition. The Kit Whether you call it a travel kit. Wear your workout or running shoes on the plane. makeup bag. or toiletries case. and extra combs. Dopp kit. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. remedy. such as a variety of buttons and threads to match your clothes. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. and rubber bands. and similar medications. not to mention the current airline custom of charging extra. safety pins in various sizes. with a little applied topology. A small. do not skimp or economize on the roll-along suitcase. multifunction “pharmacy” also should be included. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. In psychoanalytic theory. lotions. Current travel restrictions have shifted the allocation of liquids. 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. . Other useful miscellaneous items include adhesive bandages of various sizes and types. and creams to quart-size plastic bags. and string. antacids. the principle of multiple function is one of the basics of a dynamic understanding of mental life.114 THE PSYCHIATRIST AS EXPERT WITNESS. extra eyeglasses or contacts if you wear them. Alternatively. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. stain-remover sticks that do not contain toxic petrochemicals. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. even under the seat in some cases.
fails). try breathing through a moistened towel for short periods. call the airline early to check on facilities. testify. fly out. The traveling expert is sometimes torn between staying at a cold. Besides a small flashlight. although occasionally. The latter appears at first glance both socially desirable and economical. Seriously consider avoiding airline food entirely. First. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. in theory. and special arrangements. you are undistracted by social obligations and family strife or background noise.” this discussion will be helpful.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. If you have a disability. Secrets of Staying If you are unfamiliar with the expert art of “fly in. but you can buy your own compact version. experienced travelers can skip this discussion. Drink water steadily to avoid travel dehydration. it is more professional to meet with your attorney the night before the . I carry a compact “smoke hood. procedures. because someone else is paying your way to the location. You breathe through a filter that lasts long enough. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. but some precautions seem sensible.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. Almost all modern hotels in the United States have smoke detectors. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. or order special low-fat meals. I recommend the hotel or motel for several reasons. often hooked to a travel alarm clock. as well as extra disks and the instruction manual if not on the hard drive already. institutional hotel or motel and cadging free lodging with friends or relatives in the area. remember to carry light extension cords and voltage adapters. for you to get out of the toxic smoke and gases to safety. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. This item is available through a number of catalogs. on very dry flights. Second. Emergency Items Neurotic fears can certainly flower when you travel.
A simple but effective method is to soak a washcloth or hand towel in cold water. back up the call with your travel alarm. wring it out thoroughly so that it doesn’t drip. After the trial. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. but not all. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. SECOND EDITION trial in a hotel room or conference room. this is. of course. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . Some.M. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. a business trip. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. . and headachy on the stand. Remoisten it as needed. My first move on entering a hotel room. Secrets of Eating In traveling to court. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. congested. an essential part of effective testimony. Don’t forget to set the room thermostat to your accustomed household temperature. after all. is to make a beeline to adjust the hotel’s alarm clock or clock radio. 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. nausea on the witness stand also may be misinterpreted. have your martini on the airplane home after it is all over. If a paper clip or safety pin does not suspend the cloth or towel well. It is probably safest to avoid all alcohol during the trip before testimony. you can often wad up the corners and jam them between the top louvers of the inlet so that the cloth or towel hangs across the incoming air inlet. after I put down my luggage. if desired. the air is invariably dry in most hotels. obviously you should eat lightly and stick to what is familiar to you. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. Whether the room’s air system is heating in winter or cooling in summer. you are free to visit friends and family at your own discretion. a situation that can leave you hoarse. My second move often is to arrange a do-it-yourself humidification of the room. 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.116 THE PSYCHIATRIST AS EXPERT WITNESS. Experimenting with culinary exotica is asking for a case of turista at worst. hotels provide irons.
and with sleeping pills. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . the chatter of housekeeping staff just outside your door) is white noise. When you are up and awake. Examples include prescription medications that you need during the course of a long day. When possible. so you may have to carry some supplies in your pocket or purse. Setting the radio to a “nonstation” to generate static and the television to a “nonchannel” to get the sound that usually accompanies snow on the television screen (modern digital televisions usually do not permit this) are both methods of achieving this end. or even a different time zone. or others) at bedtime. benzodiazepines. Far better results accrue from sleep hygiene maneuvers. This term refers to sounds containing all frequencies. Catalogs sell portable battery-operated white-noise generators. breathing techniques. Many travelers find it helpful to block out morning sunlight with the drapes.M. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. What to Take to Court Courthouses are notably lacking in amenities. Ordinary AM radio static and the sound of surf are two examples of white noise. spending some time in direct sunlight may be helpful in adjusting your biologic clock.. hot baths. either by closing them completely or fastening gaping fabrics with safety pins. of course.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. I recommend it. just as white light contains all color wavelengths. including hangovers. without aftereffects. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. you can have a serious meal without ill effect. After court. also eat lightly. These have ill effects.” sleep sound machines. by using either alcohol or sleeping pills (barbiturates. plan your trip to allow time for recovery from jet lag. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. but all the data are not in. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. and similar relaxants. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. or similar terms. stain . usually described in catalogs as “sound soothers. actual memory loss can occur—the last thing you need. as noted.
Magellan’s International. Commons ML. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. I welcome your suggestions and favorite travel tips. Berkeley. Seattle. mints.118 THE PSYCHIATRIST AS EXPERT WITNESS. 1996 . 1998 Gutheil TG. 2003 2. References 1. 5. 3. 1988 (Incredibly detailed.) St. CA. CA. San Francisco. New York.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. J Am Acad Psychiatry Law 26:21–26.) Gutheil TG. Villard. Jossey-Bass. Flying Cloud Publishing. Ten Speed Press. sample wardrobes and general travel pointers included as well. Santa Barbara. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Celestial Arts Publishing. Revised. et al.: Expert witness travel dilemmas: a pilot study of billing practices. Berkeley. CA. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. 2001 Simon RI. Slater FE. Commons ML. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. Although some of the pointers in this chapter probably state the obvious. I hope that these tips make your travel easier and less surprising. and a headache remedy for the obvious problem. James E: The Secrets of Simple Packing (VHS videotape). Psychiatric Annals 33:302–306. or refreshment. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. 4. J Am Acad Psychiatry Law 29:202– 206. with the emphasis on safety and security issues. 1994 (An excellent guide to what to take and how to pack it. Miller PM: Expert witness billing practices revisited: a pilot study of further data. SECOND EDITION removal. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. cough drops. WA.) Savage P: The Safe Travel Book. or throat lozenges.
the courts will continue. M. which I cowrote with Robert I. As always. the more we serve this valuable and necessary function. If I have made too many assumptions about you. from all evidence. decry the expert witness function and voice arguments for its abolition. 119 . consider first reading the companion volume.D. or render this text more useful. The better we are at meeting the courts’ needs with ethical. I welcome comments and suggestions from readers to correct. the reader. Simon. including our medical colleagues. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). On the other hand. or have taken too much for granted about your background and experience in any portion of this text. effective. The Psychiatrist in Court: A Survival Guide. (American Psychiatric Publishing 2002). to require our services in increasing numbers. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. expand.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. and helpful testimony. if you wish to take your work to the next level. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Although some forces in society. That book may fill in some of the blanks. consider reviewing the successor volume to this one.
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and the examinee’s attorney’s attestation that the examinee understands the form (i. The main points about the form are the use of basic language.. I read it or have the examinee read it at the start of the interview and answer questions. supplied for consideration. clarification that the forensic examination is not the practice of medicine. is likely to be competent to consent to the interview).e. 121 .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.
I understand. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. Dr. Dr. I agree to be interviewed. M. 3. Gutheil”) I. and I understand they will be part of the same examination and will follow all the above rules. I agree to give up my rights to have Dr. Gutheil will explain or has explained to me. however. Gutheil’s questions. in spoken depositions (where lawyers ask him questions). Gutheil will explain or has explained to me and I understand that Dr. or have no effect on my case that I can see. The examination will be one or more personal interviews. hurt my case. most of which will be very personal. Gutheil is a physician and a psychiatrist. 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. Dr. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. if needed. I understand that I can take breaks if I want to at any time during Dr. the following: 1. in connection with my legal case. Dr. Because I am being interviewed in a legal matter. 4. I also understand that I am not his patient in connection with or because of this interview or interviews. This means that Dr. Gutheil’s written report or out-loud statements for court may help my case. Gutheil. I understand and agree that Dr. Gutheil will not give me any medical or psychiatric treatment. Thomas Gutheil. agree to have an examination by Dr. (“Dr. nor will he suggest any treatments to me or for me. Dr. the person who has signed at the bottom of this letter. and I understand. . I understand that Dr. Gutheil keep secret what I tell him. 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 to additional repeat. I understand and agree that Dr.” or “update” interviews of me by Dr. SECOND EDITION Consent for Forensic Examination by Thomas G. that he is not acting as my physician or psychiatrist in doing this interview or interviews. Gutheil. Gutheil may write that down for the record. or out loud in open court in a trial. but if I refuse to give an answer or some answers. 2. During this interview or interviews I will be asked a number of questions about myself.122 THE PSYCHIATRIST AS EXPERT WITNESS. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. “follow-up.D. and I understand that no one can know which one it will be in advance. Gutheil’s interview or interviews.
20 . he/she appears competent to understand it. that individual is. Gutheil’s retaining attorney. a court officer.Appendix 1: Consent Form for Forensic Examination 123 5. free to show it to me. or the court as provided by law. I certify that I have answered any questions my client asked about the procedure. Attorney for examinee Print name Date day of . Any report in relation to my case will not go to me but will go directly to my attorney. to my assessment. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Signed. of course. Dr.
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Dr. Standard Letter of Agreement by Thomas G. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. at a rate of $ per hour plus expenses. Gutheil”) 1. (d) 125 .D. in addition. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. and $ per hour for trial. M. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. and the same due for cancellations that occur less than 72 hours in advance. Gutheil shall be reimbursed for all time spent on the case. $ for depositions.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). Gutheil. rescheduling is at mutual convenience. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. (“Dr. including portal-to-portal local travel (c). the radical revision presented here has evolved from that in the first edition for the same reasons.
Signed. Signature below indicates agreement with all (r) these terms. Failure to comply may void this agreement except for duties of confidentiality (l). For out-of-state travel. Gutheil’s FID# is . including travel by first-class conveyance and appropriate lodging if needed. prorated (k). is the sole responsibility of the retaining attorney or insurer (i). Gutheil by name (h). (s) Note: Please send all case materials to (address) Date . 5. 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). and as a condition for its specific to this travel is exbeing undertaken. The retaining attorney understands that my forensic work is not the practice of medicine. Before such travel is undertaken. 3. irrespective of case outcome (j) or defaulted appearances. Gutheil will be unavailable for testimony in person during the month of August (f ). Overdue accounts may accrue interest at 6% per annum. and examinations as discovery rules permit. Dr. SECOND EDITION per day 2. please return one copy to Dr. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). Gutheil. Attorney or firm representative as individual and on behalf of firm (signatory shall have the power to bind the law firm with regard to his contract). a retainer of $ pected 3 business days in advance. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. 4. as an advance against which expenses are billed (p). Please note that because of vacation scheduling. Dr. For out-of-state evaluations or testimony. made out to Dr. materials. (q) 6. A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. Payment in a timely (g) manner. any existing balance shall also have been paid 3 business days before departure (e).126 THE PSYCHIATRIST AS EXPERT WITNESS. The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents.
For unexplained reasons. m. attorneys are sometimes slow to reimburse travel expenses for interview. Some attorneys. you may decide to withdraw. This is a standard rate of interest on overdue accounts and an incentive for timely payment.” 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. If you know when your vacation is. Doc. You must be free to withdraw from the case if the contract is breached. for review. “portal-to-portal. others the same. h. that this is a formal contract. or trial. or even retain another expert. j. noncontingent. If you are the sole proprietor. or trial travel. this statement makes the attorney agree to that possibility. b. deposition. thus. k. If the retaining party is relentlessly slow. 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). the “clock” starts when you leave your home or office for court and stops when you return to office or home. will throw up their hands in mock exasperation and say. You have the right to request timely payment to prevent excessive backbalance buildup. I recommend asking for this secondary retainer before travel. f. . or a member of a corporation or group practice. A case decision that goes against the side retaining you is not grounds for nonpayment. but what can I do? That client just won’t honor his or her obligations.Appendix 2: Standard Fee Agreement 127 Annotations a. Working for the client. To cut through nit-picking. c. You are initially retained as a consultant. n.” d. Because you will be investing a fair amount in the travel costs. take a videotaped deposition. that does not mean you should not be paid for the work already done. e. deposition. as it ethically should be. Your fee is. this clause makes that explicit. can constitute a bias. g. moreover. l. This information frees up the attorney to ask for continuance or rescheduling. “Consideration” and “agreeing” are trigger words that signal to attorneys. it saves everyone time and heartache if you spell it out. i. “You’re right. make that clear so that you don’t waste a lot of time swapping checks between payees. If you do withdraw. Every agreement must have an exit clause such as this one. based on their training. dunned for appropriately earned fees. Some experts charge differing rates.
or has left the firm. You are here agreeing to accept signature from a different attorney or a paralegal. q. others ask for a second retainer (see also Appendix 3 in this volume). in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. alas. at no cost to the attorney but at lost time and possible income to you. The wording here. if the attorney is out of the country. and ethical incompatibilities. s. give you no work to do. Moreover. these events do not weaken the contractual ties with the firm. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. SECOND EDITION o. Such attorneys may pay the retainer. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. Making the retainer nonrefundable tends to eliminate such shenanigans. because you did no work. When this retainer is depleted. identifies the attorney’s understanding that this is not the case. . ask for their retainer back. r. On rare occasions. You have been sandbagged. legal. has handed the case to another attorney. making you ineligible for participation with the other side. after settling the case. parallel with the forensic consent form in Appendix 1.128 THE PSYCHIATRIST AS EXPERT WITNESS. for example. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. some experts simply submit additional invoices. attorneys may attempt to tie up (legally bind) an expert by retaining him or her on paper to prevent the other side from consulting him or her. The retainer is not only a means of establishing the contract but also an actual advance against expenses. p. and.
M. 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. the hourly 129 . if it appears that substantial services are yet to be rendered. LARRY H.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. If travel from my office is necessary to perform any of these services. STRASBURGER. I may require an additional retainer. This retainer will constitute a credit balance until exhausted. consultation with counsel. Thereafter.D. 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. and report preparation. Any credit balance remaining will be refunded upon the termination of my services. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. interviews with family members or other persons. psychiatric interview or evaluation. Psychiatric services may include an initial consultation. review of records.
Any excess over the retainer balance is due upon receipt. as prescribed by statute. SECOND EDITION rates will apply to portal-to-portal travel time. Strasburger. etc. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. literature research. postage. and all travel expenses will be reimbursed. no refund of the retainer deposit will be made. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. photocopying. Nor shall such failure relieve your obligation to have on deposit. Sincerely. please so indicate by signing this letter and returning it to me with your check for the retainer. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. prior to my testimony. expert or otherwise. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. Diplomate. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Please keep a copy of this letter for your records. court rule. court order.130 THE PSYCHIATRIST AS EXPERT WITNESS. along with a listing of out-of-pocket expenses. If the foregoing fee basis meets with your approval. M. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . long-distance telephone calls. All travel shall be by first-class conveyance. American Board of Psychiatry and Neurology Diplomate. messenger services. I will send you a monthly statement. including secretarial service.D. setting forth the nature of the services rendered since the prior billing. the retainer discussed above. 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). 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. Time spent in preparing for testimony shall be billed at the hourly rate specified above. Larry H.
The Psychiatrist in Court: A Survival Guide. as well as those found in the companion volume. MA. MA.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. MA. this has many useful tips on trial demeanor and related issues. however. 2008 Ball D: Theater Tips and Strategies for Jury Trials. National Institute for Trial Advocacy. 1997 (Though aimed at attorneys. provide at least some information useful for the psychiatric expert. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. South Bend. Babitsky S. MA. IN. MA. All. Falmouth. Mangraviti JJ: How to Become a Dangerous Expert Witness. 2005 Babitsky S. 2002 131 . Falmouth. MA. 1997 Babitsky S. Falmouth. not just psychiatry. SEAK. SEAK. SEAK. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. 2007 Babitsky S. 2003 Babitsky S. SEAK. their quality is variable. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. 2002 Babitsky S. Inevitably. SEAK. SEAK. Falmouth.) Binder RL: Liability for the psychiatric expert witness. Am J Psychiatry 159:1819–1825. Falmouth. Falmouth. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. These sources are meant to supplement those provided at the ends of the chapters in this book.
New York. NJ. at a more advanced level. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. Tageh Press. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. New York. Covise LL. 2001 Isele WP: Under Oath: Tips for Testifying. Routledge/Taylor & Francis. J Am Acad Psychiatry Law 34:482–491. American Psychiatric Publishing. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. Edited by Jackson R. Mechanicsburg. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Danvers. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Santa Ana. 1993 Gutheil TG. et al: Expert Witnesses: Direct and Cross Examination. useful for checking credentials. Washington. pp 565– 588 McHale MJ. Wiley Law. Commons ML. Guilford Press. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. New York. Horsham. Baltimore. Williams & Wilkins. LRP Publications. 1994 Rabinoff MA. Pennsylvania Bar Institute. 2nd Edition. 2008 Rogers R. 2007. Adams KM. PA. J Am Acad Psychiatry Law 29:313–318. Simon RI. Diamond.) Dattilio FM. MA.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. James Publishing. 2006 Feder HA: Succeeding as an Expert Witness.) Gutheil TG. in Learning Forensic Assessment. 1908 (Purely for antiquarians and those interested in a classic from the last century. New York. LRP Publications. New York. Springer. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Oxford University Press. Glenwood Springs. Analytic Press. 3rd Edition. Mulligan WG. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law.132 THE PSYCHIATRIST AS EXPERT WITNESS. 2007 (Focuses specifically on the testimony phase of expert work. 2002 (This is designed as the successor book to the present one. CA. MD. 1995 Kwartner PP. New York. DC. American Psychological Association. PA. Washington. CO. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Hillsdale. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony.) Gutheil TG. 2003 . 1993 Dattilio FM. DC. McClure Company. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. Lippincott.
and links. American Psychiatric Press.com: Web site of author’s colleague HJ Bursztajn.com: A host of resources by two top attorneys. Falmouth. Kochansky J: The Complete Psychiatric Examination (videotape).com: A resource-rich site with articles. DC. links. VA. Gutheil TG.org: The main Web site for the American Academy of Psychiatry and the Law. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. American Bar Association. Mahwah. the national forensic psychiatric organization. and links. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. http://forensic-psych. http://www. J Am Acad Psychiatry Law 35:346–349. discussions. 2001 .com/forensic/f_psych.) Simon RI. New York. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. Anderson RM: Mastering Expert Testimony. A compendium of sources. publishing a vast range of information and offering excellent training courses. Erlbaum. http://tncrimlaw. American Psychiatric Press. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. American Psychiatric Press. 1997 Younger I: The Art of Cross Examination. http://www. New York. Harvard Medical School. WW Norton. http://pipatl. Disclosure: This author is a founder. SEAK.SEAK. DC.html: Another multiple resource site. Washington. MA. 2003 Simon RI. Shuman D: Clinical Manual of Psychiatry and Law. DC. articles. Wiley. Section of Litigation. 2007 Tsushima WT. with multiple resources. Washington. Washington. All experts should join.org: Web site of the Program in Psychiatry and the Law. DC. 2nd Edition. MD. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness.reidpsychiatry. Beth Israel-Deaconess Medical Center. NJ. and postings. 1976 Zobel HB. 1993 Other Media http://www. 2004 (Study guide available since 2006. Lightfoot. Washington.aapl. Gaynor Publishing. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence.
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” that is. lab results.e. for example. Decedent The person related to the case who has died. Instead. In case of ambiguity.” Deposition Usually believed to be the actual ceremony.” it is always “competence for what?” The criteria for the different competencies are often distinct. that is simply plugged in to the appropriate place. and so on. on mainframes) and may be used in attempts to impeach the expert at trial. it is usually “court-tested. 135 . Boilerplate Standardized legal language. the plaintiff is the (live) person bringing the suit. In reality the actual deposition is the transcript of the deposition. the criteria for competence to make a will and for competence to stand trial are quite different. it may consist of records and documents. case law. Thus in a suicide malpractice case. it has been accepted in actual cases that validate its use. It is not derived from the facts of the specific case at hand. or tradition. in which the witness. there is no generic “competence. Competence The capacity or ability to deal with a certain task. Database This author’s term for the totality of material that the expert has reviewed to form the opinion.. interview data. the person who committed suicide is the “plaintiff’s decedent. two or more lawyers.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. Competence is decision-specific and usually based on criteria. which will live on in perpetuity (i. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. the practical and relevant definitions are provided. such as relatives or executors. in the context of discovery. consult your retaining attorney. usually derived from statutes. legal documents such as depositions and interrogatories.
disability. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker.g. The GAL is usually an attorney. Finding See “Opinion. in which information is gathered by the attorneys in order to prepare the case. interrogatories. . may be used as well. Novice experts see this as a misnomer. and the like. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i..” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. this limitation constrains the data gathering and the conclusions that may be drawn from the database. thus decision maker rather than fact finder.” Discovery That early phase of litigation. the judge(s) and/or jury. usually exchanged between opposing attorneys to alert them to your projected opinion. Depositions. to visit a nursing home where resides a person whose competence is being challenged) and other duties. and various motions accomplish some of this phase. The role may include representing an unrepresented party (e.e. since the goal of the process appears actually to be a decision. borrowed from western and noir fiction and film. The GAL may be thought of as a kind of utility infielder for the court. less ordinary procedures might include covert surveillance of a suspected malingerer. use of a private investigator to obtain information. IME (independent medical examination) An important part of the discovery process in malpractice. in “trial by ambush” jurisdictions this step is skipped. Fact finder Practically speaking. The IME may be resisted by some attorneys. but this is the established term. but a psychiatrist. “Hired gun” A term. investigating in the field for the court to determine the situation leading to the proceeding (e. and other medical contexts not limited to psychiatry. or an attorney-psychiatrist team. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. says what the attorney wants said rather than objective truth).. the fetus in an abortion decision).g. challenging the party moving for a particular result. after the civil or criminal matter is set in motion..136 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. See also “Trial by ambush. if so.
elaborate dinners and entertainments. the witnesses are to testify in court only with testimony that they can swear to. these are prepared jointly by attorney and expert. its influence should be resisted by the expert. the oath is a place of safety to which. The “seduction” may involve flattery. the insanity evaluation is retrospective. experts should review these carefully for accuracy as to their opinions. Negligence In a medicolegal context. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. governed by legal criteria that vary by jurisdiction. and widely misunderstood by many of those. the expert. the expert can retreat when in doubt about what is going on or where the inquiry is going. tell the narrow truth. Interrogatories A set of formal. Of course. and let the chips fall where they may. See also “Standard of care. One of the most challenging assessments in all of forensic psychiatry. and nothing but the truth. often stereotyped questions put to each side of a civil case by the opposing side to develop answers under oath as a part of discovery. sometimes without even informing. Like other sources of bias. when confusion sets in. but without actually retaining. the whole truth. The expert offers an opinion derived from the database and training and experience. disliked by almost all parties in a case as well as the general public. the whole truth is often supplanted by “the admissible truth. “Phantom expert” An unethical ploy by some attorneys that invokes the expert’s name and/or reputation as a supposedly retained witness to intimidate or persuade the other side to drop or settle the case. and the like. promises of much future work if the opinion in the present case is favorable. In a practical sense. the court makes the finding that defines the outcome of the case. retreat to the oath.” 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.” of the expert’s efforts. because variations from these answers at trial will be used actively in attempted impeachment.” In practical terms.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. falling below the standard of care in the care rendered in the instant case. the “bottom line. Opinion The final phase. There are several . In addition.
the origin of the frequently invoked mantra. 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.” Though most attorneys are responsible. to prevent the experts from hearing other testimony. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. 2001: “The Phantom Expert. SECOND EDITION variations on this ploy.” “reasonable psychological certainty.” “reasonable medical (or psychological) probability.” “51% certainty. .138 THE PSYCHIATRIST AS EXPERT WITNESS.” in suggested readings. hearings. Pro bono Short for pro bono publico (for the public’s good). Sequester The separation of witnesses. “get the money up front. The expert should be familiar with the relevant local standard and its definition.” An expert testifying about a case must be familiar with the relevant standard. privilege is narrowly construed as applying in legal or quasi-legal contexts only. thus an attorney or an expert might perform a relevant duty for free.” and so on. particularly experts. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. administrative law procedures. the standard is usually national but may be local—the “locality rule. See Gutheil et al. which broadly applies to information that should not be shared with others in many contexts. Several jurisdictional variants include “more likely than not. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. and the like. Unlike confidentiality.” which the expert must also know. this term usually refers to service without payment. by excluding them from the courtroom. but they cannot by themselves reform the exploitative personality. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. 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. Appendix 4.
Tarasoff v. which involve a victim in addition to the treater and patient. Because the usual duty of clinicians is to the patient alone. these cases. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. not as a valid method of determining one’s standards of acceptance. Turndown rate The ratio of cases that are. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. discovery proceedings such as interrogatories. not those that come in for review. depositions. insane. In the majority of situations.Glossary 139 Stipulate To concede or agree to a challenged issue. etc. guilty. such as whether a witness should be accepted as an expert for the court. but the plaintiff has a thin or “eggshell” skull and is severely injured. are sometimes referred to as “third-party cases. “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. The image is that of a defendant giving a trivial blow to the head of the plaintiff. after review. The expert proffers an opinion. but the fact finder renders the finding that embodies the “ultimate issue. This rate should be seen as a rough guide. Ultimate issue The final outcome of the legal process: negligent. The expert has control only over those accepted or rejected. competent. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. (See also “Opinion. accepted as meritorious versus those rejected as invalid. a blow that would ordinarily not be expected to cause harm. Regents of the University of California) in which the clinician is held liable for the actions of his or her patient (usually acts of violence). and expert disclosures (see “Disclosure”) inform the other side in advance.”) . this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant.” or “duty to warn third-party cases. usually based on criteria. Among other goals such as saving time.” Jurisdictions vary widely as to the applicability of this principle.” Experts should refrain from stating the ultimate issue in their testimony.
SECOND EDITION Voir dire An expression from the French. 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. in the present context. discursive. See Gutheil 2007. Waffling An expert’s rambling. “The Problem of Evasive Testimony” in Suggested Readings. to say” but more relevantly. There are a number of possible causes. work product occupies a special category of privilege and is usually not discoverable.140 THE PSYCHIATRIST AS EXPERT WITNESS. evasive testimony designed to avoid answering a question directly or at all. literally “to see. Chapter 4 (reference 11). . This may apply to certain communications between expert and retaining attorney. Work product A designation of privacy for material that is part of the attorney’s trial strategy. the purpose is to allow preparation of cross-examination or rebuttal.
117 “Alibi” issues. 74. 15 Agency relationship. 17 problems of loyalty and identification. 105–106 Analogies and metaphors. 100–101 Alternative scenarios. 3–4 Advertising. 82 negotiations with retaining attorney. 61 retainers. 105 Assumptions. 16 treater bias. 115 courtroom. Dress and appearance Attorneys communication with opposing attorneys. 60 Addressing judge at end of testimony. 115 Alarm clocks. 121 American Academy of Psychiatry and the Law (AAPL). 62 needed for forensic functioning. See Ethics informing of availability as forensic expert. 116 Alcoholic beverages. 115 meals. 74 Accuracy. 35 Background of expert. 106 Beepers at trial. 100 of expert opinion. 30–32 misunderstanding of clinical issues. 68 honesty of. 104 Advocate for truth. 77 Bias. 105–106 loyalty to retaining attorney. ethical model. 23–24 Air travel. See also Demeanor 141 . See Clothing. apparent. 16 work product privilege. 115 airline guides. 47–48 depositions. 24–29 social relationships with. 9 nonsexual seduction. 105–106 American Board of Forensic Examiners. 26–28. 4–5. 16–18. 52. 82 of reports. 18 Billable time. 63 Blackboard illustrations at trial. 82–83 Announcement of forensic practice. 37–38 Ambivalence. 7. 113 Bipolar disorder. 16 meeting with before deposition. 106 American Psychiatric Association (APA). 52. 45. 70 merit of retaining attorney.” 106 Audiotaped interviews. 4. 112 first class. 87–88 Admissions. 37 Alterations ethical. use of. 44. 14 Adversarial context. 25 Beat the Press (Fulton and Guyant). 68–69 Attire at trial. 4. 49. consulting with retaining attorney during.Index Accessibility airplanes. 49. 65 fighting at depositions. 59–60 Advances minimum fee. xiii. 19 hindsight bias. 8. 80 Body language. 4–5. 70 “Attorneys’ Guide to Experts. 78. 32.
or data. 108 Browbeating by retaining attorneys. 77 Change of opinion. 65–66 Confidentiality breaches as basis for suit. 85–86 Brokerage organizations for expert witnesses. 135 . litigants. 66 Concessions at depositions. 121–123 Constraints on time. 34 misunderstood by attorney. 34 Compound questions at depositions. 62. 18–19. example of outline. 39–40 Cellular telephones. 103–108 Camera. 86–87 Cross-examination. 86 Borderline personality disorder (BPD). SECOND EDITION Complaint. 77 unpacking at hotel. 32. 118 Counsel. 13–14. 65. 100 Consultation services. See also Video depositions gazing into the lens. 70–71. 116 Coaching. review of. 14 criminal responsibility cases. 81 Communication with opposing attorneys. 101–102 Crises while testifying at trial. 69 Concentration at depositions. 38 Conflict of interest. 47–48 Competence issues. 48–49 involving the insanity defense. 83 Courtrooms. 24. 74 Code language between attorney and expert. xiii. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 16. 99–100 Consent Form for Forensic Examination. 29–40 documents. 59–60. 33–34 merit of attorney. 61. 137 report. 107 Brokering a case when unable to handle it personally. See Attorneys Countertransference. 99. 82 Clothing packing for travel. 71 Candor. 113–114 Case name or citation in written report. 30 validity of case. letters to. 83 breaks and recesses during. 33–34 threshold question. 82 Breaks and recesses depositions. 82 Child abuse issues. 30–32 “nothing to go on” problem. 28 Correction of answers at depositions. 17. 95 Court reporters. money. or experts. 25 Conflicting stories from parties in case. 73–79. 5. 7–8. 19 Capital criminal cases. legal. 32 Building a practice. 28–29 Contingent fees. 48–49. 44 nonconfidentiality warnings.142 THE PSYCHIATRIST AS EXPERT WITNESS. 14 Carry-on luggage. 30 Causation. 77. 33 The court. 40 Child custody cases. 85–86 code language between attorney and expert. 61 trial. 33 scheduling. 81 delaying tactics. 64–65 Cough drops or throat lozenges at trial. 4 Class action cases. 58–59 avoidance by attorney. 4. 23 Clinical material. 97 Case review. how to handle in written reports. 116–117 metal detectors at. 118 Criminal cases capital cases. questions about. 113–115 trial appearance.
85 quotes. 92 Disabled individuals access to airplanes. 31 Database. 34. 83–86 “yes” or “no” questions. 77–79 Departure from courtroom. 62–63 reviewing. review of. 66 concessions. 59–60 assumptions. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 68 final preparation. 58–60 goals of opposing attorney. 61. 34 stenographers in. 114 . See also Interviews. Records leaving behind after trial. 64 opinions and their bases. See also Depositions interrogatories. 65–66 consulting with retaining attorney during. Privilege Discovery. 135. 83 trial. 74 Disclosure issues. 68 of experts at trial. 69 Direct examination. vast amounts of now stored online. 58–60 inappropriate questions. See Parties in case Demeanor cross-examination. 80–82 leading questions. 58–70. 26 pauses before answering. 64 objections. 135 admissions in. 65 correction of answer. 91–92 privileged information. 135. 68 fighting by attorneys at. 79–80 restructuring. 57–58 nondiscoverable material. 116 Drinking.Index demeanor during. 117 Drugs. 75 Decision to take case. 64–65 later evidence affecting opinion given at deposition. 34 assessing. 29 Defendant. 113–115 trial. 64. 64–65 curious questions. 66–67 locking in/limiting expert’s testimony. 77 unpacking at hotel. over-the-counter. 115 access to courtroom. 61 compound questions or answers. 64 language/word choice. See also Confidentiality. 97–98 Daubert challenge. 69–70 videotaping of. 113 Dress and appearance packing for travel. 68–69 breaks and recesses during. 60 malpractice suits. 64 priority. 70 “gerrymandering” clinical data. 38 of experts at depositions. See Records. 85 Dangerous examinees. 4–5. 66–67 143 interruptions. Written documentation Doing no harm. 80–82 of examinees during interviews. 59 limits of expertise. 8 Double billing. 85 reasons for. 62–63 concentration during. 135. 59–60. questions about. 5–6. 65 questions and answers. 68 treatises. 47 nonverbal responses. 59 past. 76–77 written documentation to give listing of. See Privilege Documents. Reports. 66–67 demeanor of deponent expert. 73 use during trial. 57–72. 63 goals of expert being deposed. 87–88 Depositions. 88 trial preparation. 84 pauses before answering.
sample. issuing. 136 spotting the other side’s. 9 Humor. 112–113. 113 Fitness as expert. 15 loyalty to retaining attorney. See Countertransference Forensic practice. 37 Eye contact at trial. 47–48 cross-examination. 8 Hearsay. 17 special expertise of. 1 functions. Reimbursement for travel Expert witnesses. 115 Feedback. 112 Failure of retaining attorney to pay fee. 7–8. sample. sample. 61. xiii–xiv evidence in. 36 “False memory” cases. 52–55 History of expert. 115–116 Humility factor. 28. principles of. 125–128 Gestures at trial. 1–3 Experts honesty of. 80 Fabrics. 28 Fairness. 28. 62 Hired guns. 129–130 standard fee agreement. scholars in. 113 contact with opposing attorneys. 25 Flashlight. sample. 2 Forms detailed fee agreement. 88 Fees. 28. 33 oaths. 67 marketing. 15 social relationships with attorneys. 14–15 Etiquette at trial. ethical model. 75 Ethics. 25 Honest advocate. 129–130 standard fee agreement. 15 Honesty. See Meals Forensic countertransference. principles of. always soliciting. 95–96. 16 turndown rates. See also Conflict of interest advocate for truth model. 5. deposition and trial. 30–32 of experts. staying with. 100–101 billing. 60 False allegations. importance. or experts. 18–19 honest advocate model. 49–51 examples. 107 new facts at trial. 80 Flying. 38. 82 nonconfidentiality warnings. 13–14. of sexual misconduct. 15 altering reports. 49–50 Employment relationship. 13–21. 15 remaining neutral. 26–28 detailed fee agreement. for travel. 16 marketing a forensic practice. 24 Entrance of judge. SECOND EDITION Family or friends. 38 “nothing to go on” problem. 82 Hotels. 51–52 Hindsight bias. 6 High-profile cases. See Fees. See Meals Emotional injury cases.144 THE PSYCHIATRIST AS EXPERT WITNESS. 78 Eating. 25 External consistency of story. 28. doing none. 61. 78 Global requests. 125–128 travel costs. 96 Harm. 87–88 Evidence. See also Hired guns definition. 103–108 Forensic reports. 75–79. 44 . 67 Expenses. See also Ethics of attorneys. 115 Flip charts at trial. 44. 32 Good writing. See Air travel Food. See also Written documentation Forensics. 6. 50–51 interviews. litigants.
36 Internal consistency of story. 18 Integrity. 45 locality rules. 106 specialization. 49 demeanor of examinee. 47 standard of care. 6–7. 38 note taking. 105 Judgment. 87–88 dismissal by. 49. See Attorneys Leading questions on crossexamination. 115 Lawyers. review of. 36 nonconfidentiality warnings.Index Identification with retaining attorney. level of scrutiny. 34 . See Hotels Loyalty to retaining attorney. 34 depositions. 36 internal consistency of story. 37. 138 Marketing a forensic practice. 75 informing of availability as forensic expert. 53. 47 elements of malpractice. 107 lecturing. 35 Involuntary gestures at trial. 107 Interference of attorneys during interviews. 36 presence of attorney. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 106 listings. 103–108 announcement of practice. 16. 40 videotaping or recording. suspending. 112 Meals airplane food. 115 during trial. 137 Intervening causes. 34–35 plausibility of case. 35 retention of records. 45 records. 45 Juries. 137 Insurance challenges. 106 Locality rules for standard of care. 36 Interrogatories. 52 Malpractice suits. 99. 7 Listings as a marketing tool. 34–35 plaintiff. 82 Jet Smart (Fairchild). 57–58. 45–46. 34–38 “alibi” issues. 39 Interviews. 106 Letters to attorneys. 78 Jargon. 38 emotional injury cases. 79. 48–49. 18–19. for travel. 46–48 social service history. 105 ethics. 79–80 Jurisdiction-specific language. 43–48 creating timelines for. 6 entrance of. 86 Malingering. 95 Likelihood principle. 116–117 Media coverage and cases. 75 respect for. 107 strategies. 106 publishing/writing. 37–38 criminal responsibility cases. 87–88 Lecturing as marketing tool. 112 Judges addressing. 83 testimony before. 2 entrance. 51–52 Medical records. 119 Materials. 45 Lodgings. 91–92 recording. 98 145 Laptops. 37 alternative scenario. 35 order of. 16 Insanity defense in criminal cases. 49–50 external consistency of story. 86. importance of. 97 to the court. pros and cons. 84 Leaving courtroom. 35 priority. 37 interference.
unfailing. 49–51 Morality. 86 Nonconfidentiality warnings. 137 depositions. 91–93 Precautions. 40. 39 vulnerability of plaintiff (“thin skull”). 30 Occasions. 57–58 trial. 77 keeping notes. 24 request of retaining attorney. 54. 82 interrogatories. 88 The Packing Book (Gilford). 58–60 Opposing expert witnesses. 65 work product privilege. 97 . 106 Negligence. 25 bias. 66. 74. 74 Prior testimony by expert. 68 Pauses before answering cross-examination. 137 Note taking importance of. 114. 77 Personal injury cases. 65. 138.146 THE PSYCHIATRIST AS EXPERT WITNESS. writing for. 44 Melatonin. 113–115 Parties in case case name or citation in written report. 70 Medication issues as basis for suit. 64 interrogatories. not compromising. 50 Preliminary reports. See also Web sites storage of past depositions. SECOND EDITION Online. 137 Negotiations with retaining attorney. 26–28 Networking. 52–55 contact with. 15. 112 Packing for travel. 25 initial contact. See also Confidentiality deposition. 91–92 Privilege. 117 Pretrial conferences. 85 depositions. 80 Misunderstanding of clinical issues by attorney. 118 Metaphors and analogies. See Emotional injury cases Physicians’ Desk Reference (PDR). 97 communication with opposing party. 24–25 timing and scheduling. 13–14. 17–18. 24–29 background of expert. See Parties in case Plausibility of case. 5. 82. 64 Peer review for testimony. while traveling. 35. 26–28 fitness as expert. 100–101 Posttraumatic stress disorder. goals of. 34–35 Patience. 29 fees. 71 Oaths. 47 during interviews. 115 Preexisting illnesses or conditions. 82 Mitigation of damages. 117 Metal detectors at courthouses. See also Marketing a forensic practice New facts at trial. 49–51 Practice pointers. 82–83 Microphone use at trial. 45. 38 Nonsexual seduction. 81 Postreport negotiations. 104. 36 Politeness. 24 decision to take case. 16–18 clinical and forensic issues. 16. 14. 97 Preparation for trial. 67 National Forensic Center. consulting with retaining attorney at. 4–5. effect of. 47–48 Outcome of case. 57–58 Objectivity. 8 Pens and pencils at trial. questions of. 47–48 plaintiff interviews. See Trial preparation Prescription medications. 69 Plaintiff. 15 Objections depositions. 26 Opposing attorney. 25–26 Priorities. use of.
131–133 travel books. 112–113 Santayana. 5–6.. 115 Rental cars. 73–74. 68 Storytelling. 75–76 Seduction. 28–29 Running shoes. response to. 54. 40 social service histories. 48 Sleeping. reasonable medical certainty. 7. 131–133 travel books. 75 Sexual misconduct cases. 66 Simon. 25 Reasonable medical certainty. 106 Publicity and cases. 6–7. review of. 35 Records. 97–98 Supporting data for written reports. 49 Sequestration. 34 malpractice cases. 112 Reports. 92. 47 Referrals. See Breaks and recesses Recorded interviews. 97 Rehearsing testimony. See Oaths . suggested. negotiations with. level of scrutiny. 82 Silent treatment. showing toward juries. 36. nonsexual. 112 Reality-testing. 17–18 Self-serving behavior. 9. 33–34 CATO model for. See also Written documentation Reputation of expert. traveling with. 44. 95–102. See also Malpractice suits Suitcases. George. 81 Sworn statements. 91–93 personal conflicts. 16 Social service history. 46–48 medical records. 34 retention of. 138 Rebuttals. 113–114. 18. 26–28. 40 case review. 31–32. 40 Returning calls. 70 Skepticism. 7. 99 Surprised expert. 54 Resources for suggested readings. 3. 113 Relatives. maintaining appropriate. review of. 108 Roles of expert. 83 Retainer. 46 criminal responsibility cases. 49 database of. 53. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 104–106. importance of. 14 147 Retaining attorney. 138 of witnesses. 9. 25–26 as marketing tool. 138 Professional meetings. 138 Standard of proof. 45–46. staying with. 47 Socratic method. 93 Seating at trial. 106 Psychiatric malpractice suits. 112 Respect. power of. 6. See Negotiations with retaining attorney Retention of records. 25 Required action. xiv. 107. 15. 33. See also Court reporters in depositions. 79 Stenographers. 51–52 Quoted passages. 117 Social relationships with attorneys. 6 Scheduling issues. 24 Publications by expert. 119 Site visits. See also Packing for travel Supplementary reports. 107 Standard of care. 3 Suicide malpractice cases.Index Pro bono work. 82. 74 Reimbursement for travel. 85 Readings. obtaining in advance. 100 Recesses. 38–39. 43–45. 108 written documentation. Robert I. 79. 6 Specialization. 64.
112 Travel expenses. 80. 111–118 billing. 74 Teaching role. 51 evaluating. marker board. 118 crises while testifying. 86–87 cross-examination. 116 Treater. 55. versus expert. 19. 108 wake-up calls. 37–38 Trial. 115–116 meals. 14–15. 61. 112 Traveling. 74 pitfalls. 75–79. 73–74 language/word choice. 60. 34 for depositions. 86 cellular telephones. effect on standard of care. 79–80 timing and scheduling tips. 76–77 water. Honesty Turning down cases. 44 Throat lozenges or cough drops at trial. bringing into. 77. 73–74 practice sessions. questions about. 77 pointers. 77 courtroom. 86 pens and pencils. 113 Travel service. 81–82 priority. 80 humor. 77. 44. 92. See Meals packing. effect of. 86. 85. See also Cross-examination prior testimony by expert. 87–88 dress and appearance. 117–118 Trial preparation. See Crossexamination demeanor at. 49–51 Tarasoff-type cases. 78 illustrations. See also Ethics. 82–83 lunch during. 115 lodgings. 73–90 beepers/cellular telephones. 74 planning. 82. 13. 69–70 Treatment recommendations. 76–77. 48–49 emotional injury cases. 117 time planning. 113 examinees. 116 Testimony at trial. 139 Type of practice expert has. 35 flying. 91–92 seating at. 112 Traumas. 8. 139 Taxicabs. 39–40 Travel books. 77 what to bring into court. blackboard. 80 language/word choice. 26–28 travel time. 43–56 criminal responsibility cases.148 THE PSYCHIATRIST AS EXPERT WITNESS. 8–9 Treatises. 74 rehearsing. or flip chart. 80 pretrial conferences. 80 new facts coming to light. 116–117 microphone use. 118 Time creating timelines. 77 returning calls. 45–46 Types of cases. 79–80. 77 etiquette at. 112 unpacking. 112–113 travel information. SECOND EDITION cough drops or throat lozenges. 87 . 35 keeping track of. 78–80 Telephones calls during trial breaks. 75–76 supplies. 85–86 conclusion of questioning. 74 using database during. 74. importance of. 25–26 roles of expert. 77 breaks and recesses during. 112–115 sleeping. 28–29 Third-party cases. 74 presentation. 82. 87–88 eye contact. 74 Truth telling. 64 for interviews. 74. 77–79 departure from courtroom. 117–118 testimony.
99–100 constraints on time. 82–83 149 Word-of-mouth referrals. 97 conclusion. example of outline. 98–99 conflicting stories from parties in case. misunderstanding by attorney. 98 letters to attorneys. 97 opinion. 96 rebuttals. 116 Water during air flights. See also Records. 97–98 headings. 67 Video depositions. how to handle. 97 principles of good writing. 117 Word choice depositions. 97 occasions. questions of. 99 .” 18–19 “Ultimate issue. 97 interviews/items reviewed. 74 Voltaire. 79. 43–48 “Ultimate ethical test. Reports case name or citation. 53–54 Wake-up calls. 77 Web sites. 44 White noise. 140 Written documentation.Index high-profile cases. 100 referrals. 4–5. 35 Visual aids. 70–71 Videotaped interviews. 7 Waffling in answers. money. 74.” 2. 98–99 postreport negotiations. 100–101 trial preparation. 97–98 jurisdiction-specific language. 97 supplementary reports. 95–102. 51–52 psychiatric malpractice cases. 139 Understanding of clinical issues. 100–101 preliminary report. 82 Values. 100 criminal case. 101–102 database listing. 104–105. 97–98 supporting data. 115 in courtroom during trial. 140 examples of. 64–65 reports. or data. 107 Weight to be given to on-site psychiatrist’s observations. 70. 108 Work product privilege.
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