The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10 The Expert on the Road: Some Travel Tips

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

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

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

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

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

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

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

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

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

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

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

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

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 common method of the lecture is replaced by another approach: the Socratic method of question and answer. The witness should be guided by the maxim: when entering the courtroom. This painstaking. be it moral or monetary. Once again. despite the convoluted.. one is guided by its rules. may be forced into limitations on this promise because of countervailing considerations of precedent. but the Socratic method is one of the mainstays of courtroom procedure. always seeking out verification. Because a patient in treatment is willingly coming for help. obvious self-contradiction. prejudice. and to maintain an appropriately skeptical posture. though under oath to tell the whole truth. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. corroboration. and similar signs. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. Yet the court may be driven by principles of fairness. do not demand to be heard: answer all the questions and then stand down when dismissed. — George Santayana Unlike the treatment context. 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. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. which preclude admission of certain kinds of data or evidence in the name of justice. detailed. In contrast. and the like (4). or discorroboration . absent clear delusions. fundamental fairness. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. hearsay. the forensic practitioner is wise to suspect everyone of having some stake in the matter. The Socratic Method Although expert testimony has been compared to teaching. hearsay-ridden trail by which it comes to the team’s attention.. 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.6 THE PSYCHIATRIST AS EXPERT WITNESS. experts in court must play by court rules.

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

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

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

2007 Barsky AE. 5. 8. Personal Injury and Other Civil Actions. Guilford Press. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 2003 Strasburger LH. 2006 Catto G: Acting as an expert witness. Gould JW: Clinicians in Court: A Guide to Subpoenas. British Medical Journal 337 (#7664). Williams & Wilkins. Williams & Wilkins (Wolters Kluwer). Hauser MJ.org/guidance/ethical_ guidance/expert_witness_guidance. Testifying and Everything Else You Need to Know. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 1998 Gutheil TG. Bull Am Acad Psychiatry Law 20:153–162. Expert’s Quarterly (Winter): 2. Suggested Readings Ackerman MJ. 7. 3. Wiley. J Am Acad Psychiatry Law 25:233–247. Harv Rev Psychiatry1:4–5. Accessed August 5. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Available at: http://www. 2005 2. New York. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. White MS. MD. J Am Acad Psychiatry Law 34:14–21.10 THE PSYCHIATRIST AS EXPERT WITNESS. Lippincott. Am J Psychiatry 154:448–456. DC. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Lewis Publishers. Kane AW: Psychological Experts in Divorce. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Psychiatric Press. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 2008.asp. 2008 . 6. et al: The “whole truth” vs. J Am Acad Psychiatry Law 31:422–427. Washington. Baltimore. Lippincott.gmc-uk. 4th Edition. August 2. Boca Raton. Baltimore. J Am Acad Psychiatry Law 33:55–58. Depositions. SECOND EDITION References 1. “the admissible truth”: an ethics dilemma for expert witnesses. 1992 Appelbaum PS. 1997 Gutheil TG. Simon RI: Narcissistic dimensions of expert witness practice. 1997 Gutheil TG. New York. 4. MD. Gutheil TG. FL. 2002 Bronstein DA: Law for the Expert Witness.

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

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” They may forget that this encounter is not therapy.. First. rather than help.” (1.” 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. their ultimate goals in the legal process. It is a control easily within the reach of every witness—the lever marked “truth. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. particularly an empathically attuned one. the ethical expert be13 . but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. and its results may harm.[Finally] I realized that each witness chair comes equipped with a stabilizer control. examinees being interviewed by a psychiatrist. S-3) THE EXPERT faces many challenges in forensic work.. In this chapter..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. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. p. 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.

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

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

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

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

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

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

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

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

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

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

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

.e. Similarly. 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. Reviewing your own published work in a particular area is a worthwhile part of your preparation. Second. Time.g. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. credentialing problems in the past.26 THE PSYCHIATRIST AS EXPERT WITNESS. not for their time and clinical expertise. the court record chidingly notes. . Do your best to address this possibility early. for instance. juvenile offenses. contradicts your present position. you realize that the more you write. the more words you might have to eat on cross-examination. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. even if the issues are clinically or forensically totally different. (1) This quote is interesting from several viewpoints. the ultimate beneficiaries. have taken an opposite position or opinion.. for the first time while on the witness stand) is a major expert sin. Fees. Thus. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. including the speaker. are there cases in which you have testified on behalf of the other side. . SECOND EDITION history of problems in the military. Finally. attorneys are invisible within the court record.. knows that it was Smith’s lawyer who was derelict.In too many medical malpractice cases. unfortunately.. . As is often the case. 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. Belatedly surprising your attorney (e. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. who are the strangers in the courtroom. This issue is further discussed later in this chapter. If you write a lot. Are things you have written a problem for this particular case? Attorneys hate being surprised by the fact that an article you wrote 15 years earlier. in an economic sense. in the preceding quote. . “Smith failed to plead . a criminal record (no matter how minor). they are all corrupt). the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. 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. for example.” when everyone. or have been retained by one side more than the other? Review this with the attorney.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Types of Typical Cases

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

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

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

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

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

remember to consider diminished capacity as an intermediate condition. are the most significant. Out of the entire panoply of available material on a criminal responsibility case. and records of any treating clinicians from points close in time to the alleged acts. eh?” Presumably. or expert. namely. These unethical conversations usually have an informal tone: “So. in my (and almost everyone’s) view. statements of the arresting officers. I have had opposing attorneys telephone me directly on a “fishing expedition” to see what they could get me to disclose about a case without the trouble and expense of scheduling a deposition. The appropriate response is. On occasion. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. you can be drawn into the prose by the unfolding drama therein recorded. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. These would include witness and victim reports. weighing the logic of the deponent’s responses. SECOND EDITION Although the more information gathered. litigant. but still relevant. The truly challenging case lies between these extremes. Doctor. friendly approach into letting your guard down and discoursing freely on your opinions. Of second-rank importance. In those jurisdictions where the issue exists. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. your attorney’s confidential trial strategy. the more helpful it would be in forming your opinion. it is inappropriate to call or write directly to the opposing attorney. what do you think about this amazing case. a case wherein the defendant had or has a major. Is this defendant someone who seemed to show . and so on. data gathered at the time of the alleged act. you are lulled by this informal. is historical material. 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. credible mental illness (and therefore a likely defense) versus a case with none of these qualities.48 THE PSYCHIATRIST AS EXPERT WITNESS. Criminal Responsibility Cases In cases of criminal responsibility. exert the effort to stand back from the process. Because of the flow of material and its often fascinating content. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. To read critically. “I think you should talk to the retaining attorney. while reading a deposition. you may confront the classical poles of the issue. For example.” Attorneys who push this issue should be reported to their local bar association’s ethics committee.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

.” . The attorney may know the answer to a particular question from the expert’s report. equivocating hurts you. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. or publications. but in this instance it is not. “Although the present case is a clear exception to that rule.” are almost always answered yes on the theory that almost anything is possible). “that’s generally true” and you may be too flustered to challenge the action. however. isn’t that right. or alternatively. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. what you say is often true in other cases. SECOND EDITION Most often. 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.84 THE PSYCHIATRIST AS EXPERT WITNESS. which may be asked on cross. questions beginning “Is it possible. Throw it away. “That’s generally true.”) or exhibitionism (“Watch me shine!”). or the answer may be obvious from the question (i. It is better to say.. no problem. Even those attorneys who opt to engage in cross-examination are usually (but. can they not?” • “Another expert might come to a different conclusion. interrogatory. never ask a question to which you do not already know the answer. The following are some examples of the last (all are leading questions. deposition. ask only questions to which only one answer is possible (fittingly. surprisingly. The tight rein on which you are held may make it difficult to get your opinion out there. the attorney’s wish or need to have the client see the attorney doing something. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. and even the attorney’s competitive feelings directed toward the expert. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. If you want to say.e.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 question answers itself ). Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. attorneys do not perform this simple but effective maneuver. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. not always) aware of two fundamental principles that should guide this activity. the attorney asks closed questions. such as the previously listed leading questions..” the attorney may move on to the next question after you have said. First. Instead.

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

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

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

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

The Expert in Trial 2.

89

3. 4.

5.

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

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

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

CHAPTER 7

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

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

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

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

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

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

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

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

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

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

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

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

Falmouth. Wiley. Petrilla J. SEAK. report writing and expert testimony. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. SECOND EDITION Defendant’s account of the crime: Witness and/or victim accounts of the crime: Mental status examination: Physical examination and laboratory tests: Summary of psychological testing: Competency assessment: Psychiatric diagnosis: Opinion: Suggested Readings Babitsky S. MA. THE PSYCHIATRIST AS EXPERT WITNESS. pp 511–528 . 22. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 25. 1986 Melton GB. 3rd Edition. 20. 2007. et al (eds): Consultation. Am J Psychiatry 143:164–169. Edited by Weiner IB. 21. 19. pp 577–605 Weiner IB: Writing forensic reports. 1987. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. in Handbook of Forensic Psychology. 24. New York. Poythress NG. Hess AK. 23. Guilford Press. New York.102 18.

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

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

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

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

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

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

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

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111 . Simon.D. The author is indebted to Robert I.. mockery. In this chapter. this chapter will be too obvious and not relevant to your needs. As always. M. 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. 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. M. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. examinations. William Reid. seasoned travelers may skip the chapter entirely. I address some tips and strategies for the expert who is inexperienced in traveling to cases. and opprobrium.D.. IF YOU TAKE ONLY CASES in your immediate neighborhood (such as might happen when you work for a court clinic) or if you are already a seasoned traveler. 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.

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

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

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

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

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

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

or refreshment. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. 1994 (An excellent guide to what to take and how to pack it. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. CA. J Am Acad Psychiatry Law 29:202– 206.118 THE PSYCHIATRIST AS EXPERT WITNESS. Villard. Berkeley. and a headache remedy for the obvious problem. 3. Flying Cloud Publishing. Miller PM: Expert witness billing practices revisited: a pilot study of further data. 2003 2. 2001 Simon RI. J Am Acad Psychiatry Law 26:21–26. I welcome your suggestions and favorite travel tips.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag.) St. Berkeley. cough drops. Commons ML. References 1. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. 4. CA. Commons ML. San Francisco. 1998 Gutheil TG. or throat lozenges. Santa Barbara. Although some of the pointers in this chapter probably state the obvious. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. mints. sample wardrobes and general travel pointers included as well. SECOND EDITION removal. James E: The Secrets of Simple Packing (VHS videotape). with the emphasis on safety and security issues. CA.: Expert witness travel dilemmas: a pilot study of billing practices. 1988 (Incredibly detailed. Slater FE. WA. Revised. Psychiatric Annals 33:302–306. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. Jossey-Bass. New York. Seattle. 5.) Savage P: The Safe Travel Book.) Gutheil TG. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. Celestial Arts Publishing. Ten Speed Press. et al. 1996 . I hope that these tips make your travel easier and less surprising. Magellan’s International.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter 4 (reference 11). to say” but more relevantly. . discursive. Waffling An expert’s rambling. work product occupies a special category of privilege and is usually not discoverable. “The Problem of Evasive Testimony” in Suggested Readings.140 THE PSYCHIATRIST AS EXPERT WITNESS. 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. There are a number of possible causes. 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. literally “to see. This may apply to certain communications between expert and retaining attorney. evasive testimony designed to avoid answering a question directly or at all. See Gutheil 2007.

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

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

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

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

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

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

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

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

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

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