This action might not be possible to undo. Are you sure you want to continue?
The Psychiatrist as Expert Witness
This page intentionally left blank
M. Gutheil. Massachusetts Washington. England .D. Harvard Medical School Boston. DC London.The Psychiatrist as Expert Witness Second Edition Thomas G.
Title. Inc. Gutheil has no competing interests to disclose. Food and Drug Administration and the general medical community. ISBN 978-1-58562-342-6 (alk. however.. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. As medical research and practice continue to advance. The psychiatrist as expert witness / Thomas G. represent the views and opinions of the individual authors and do not necessarily represent the policies and opinions of APPI or the American Psychiatric Association. Gutheil. schedules. paper) 1.S. Dr. II. W740 G984pf 2009] KF8965. 2. cm.appi. p.G8 2009 614′. Expert—United States. Inc. 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. Gutheil. Moreover. Includes bibliographical references and index. and that information concerning drug dosages. Psychiatrist in court.Note: The author has worked to ensure that all information in this book is accurate at the time of publication and consistent with general psychiatric and medical standards. 1000 Wilson Boulevard Arlington. Inc. [DNLM: 1. Books published by American Psychiatric Publishing.org Library of Congress Cataloging-in-Publication Data Gutheil. I. Evidence. American Psychiatric Publishing. Gutheil. Copyright © 2009 American Psychiatric Publishing. For these reasons and because human and mechanical errors sometimes occur. Forensic Psychiatry. . Forensic psychiatry—United States. therapeutic standards may change. 2. Thomas G. specific situations may require a specific therapeutic response not included in this book. Thomas G. and routes of administration is accurate at the time of publication and consistent with standards set by the U. Expert Testimony. c1998. Companion to: The psychiatrist in court / Thomas G. VA 22209-3901 www.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. — 2nd ed.
To my children and the hope of the future. . truly the wind beneath my wings. To Shannon.
This page intentionally left blank .
. . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . .Contents About the Author . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . 1 The Adversarial Context. . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 The Expert on the Road: Some Travel Tips
for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
. Through more than 250 publications and many lectures and seminars in national and international fora. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. M.D. he has received local and national writing and teaching awards. M. Clinical Handbook of Psychiatry and the Law. and now in its fourth edition. Recipient of every major award in the forensic field.D. and a Distinguished Life Fellow of the American Psychiatric Association.. he has taught many clinicians about the interfaces between psychiatry and the law.About the Author Thomas G. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. Harvard Medical School. coauthored with Paul S. received the Manfred S. the textbook. 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. Gutheil. Appelbaum. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. xi .
This page intentionally left blank .
and many a practitioner feels the urge to try out this fascinating realm. From another perspective. Forensic psychiatry is growing in popularity. Moreover. that book is a good place to warm up. in fact. other changes in this second edition include: a glossary of useful terms.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. In addition. additional illustrative examples. if you feel shaky about the basics. besides the requisite updating of references and suggested readings. and at the request of past readers of the first edition. xiii . 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. interspersed with frenzied bursts of action. you might consider this book to be next in logical and chronological order to the companion volume in this series. an expanded discussion of bias in testimony. As an aid to present readers. before experience itself has had the opportunity to provide the most durable and valuable instruction. The Psychiatrist in Court: A Survival Guide. Such service presents many stresses and equally many satisfactions. 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. 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. expanded definitions of key concepts. a model forensic consent form for examination. and cases or principles that I have learned about since the first edition. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. 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. this edition also contains things I wish I had said in the first edition. it provides tedious stretches of waiting and inactivity.
The more seasoned expert may wish to skim over the more familiar material in the text. attempts to provide some of that practical.xiv THE PSYCHIATRIST AS EXPERT WITNESS. perhaps— dare I say it—interesting and even fun. This new updated edition. whenever possible. the later chapters may yet prove useful. in part because they represent material never covered in other sources. Gutheil. M. . Indeed. concrete advice replaces abstract theorizing. 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. I hope you find this approach useful. for such readers. and informal discussion in a user-friendly tone replaces scholarly discourse. You who are in that position are also my audience. SECOND EDITION If your early court experience has not been too traumatic. the novice court goer. drawing on developments subsequent to its first version. you. hands-on mentoring and guidance that were not readily available in the past. kicking and screaming. 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. Thomas G. but choosing to go.
Phillip J.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. Larry Strasburger.” James T. Stephen Behnke. Resnick. Harold Bursztajn. xv . Candace Love of On-Point Research for valued assistance in compiling resources.D. Esq. for permission to use some of his material on writing for court. Harvard Medical School. and Ms. and to Ms.. Ellen Lewy for absolutely indispensable assistance with the manuscript. I especially thank “Dr. Hilliard. and Shannon Woolley for their careful review and most helpful critique and comments. to Drs.. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. M.
This page intentionally left blank .
an expert witness may review a chart filled with other clinicians’ observations 1 . In the courtroom setting. to provide information and understanding relevant to the legal system’s concerns. Indeed. even if those conclusions are based on others’ observations. For example. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. that is. both clinical and nonclinical. 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. is a psychiatrist who uses particular skills.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. clinically defined. In this book. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. the concept of a psychiatric expert witness. This essentially didactic functioning—more closely resembling teaching than anything else—often requires intellectually bridging the gap between two widely divergent realms of discourse and th ought: psychiatry and law. knowing a lot about a certain topic and having extensive experience therein. the question “What makes an expert?” seems to answer itself: expertise makes the expert. More narrowly. in contrast the expert is entitled by the role to draw conclusions. the question of what makes an expert witness is more complex.
insanity. Under this model. some questions can only be answered by a specialist. it could be argued that this is the essential function of the jury system: a social mechanism to decide which side of a case is to be believed. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function.. are the very same ones who had retained me on a previous case. that is. What I find bemusing is the fact that.I do not want someone who [merely] teaches others about it. from ballistics to the temperature of coffee sold at fast-food franchises. However. such as competence or insanity. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. For that matter.” You want someone who will present in a way that the jurors would be inclined to say this. 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. because what an expert offers is “only” a witness’s opinion. the jury is free to accept or reject the expert’s testimony in whole or in part. I’d want to be treated by this person because he/she makes sense. I also want someone who has clinical experience and is doing that which he/she is testifying about. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. As a rule experts should limit themselves to criteria-driven. and so on. about matters that are beyond lay knowledge or decision making. if I had this problem... then the judge or jury. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. competence. or malingering. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. proclaiming their ultimate faith in the jurors themselves. the court system needs expert witnesses in a burgeoning variety of technical fields. incompetent. not the ultimate finding that a judge or jury decides. the expert is to educate the retaining attorney. Note in regard to the issue of ultimate findings. Indeed.2 THE PSYCHIATRIST AS EXPERT WITNESS. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. I believe this person. 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. . such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. at times.” This issue is discussed further in later sections of this text.
eyes glowing with interest. and an adversarial atmosphere are problems to be avoided. 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. at family functions. In one scene. pp. In this chapter. the emperor is initially resistant to Mozart’s novel music. demographics. 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. and the one often most troubling to clinicians. (2. 4) help the fact finder see the facts. are so essential to this work that I review them in the following discussions. Despite his doubts.Introduction: What Makes an Expert? 3 Another scholar. oppositionality. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. and the resulting probabilities. a law professor. causation. and 5) argue the case (1). is the adversarial context. some points. went even further by listing the functions of the expert as being to 1) tell the story. The emperor leans forward. statistics. syndromes. Mozart begins to describe the opening scene of The Marriage of Figaro. The power of storytelling was captured in a movie about the career of Mozart. consider this scene: In the movie Amadeus. 3) make sense out of the law. Showing pictures of the deceased at communion. conflict between the parties. “Where are the communion pictures?” Pressed for a less cryptic expression. and throughout this book. The foremost of these. . to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. and so forth would have accomplished this vital storytelling purpose. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. surmounted. however. although basic. The highly experienced defense attorney who had retained me was heard to mutter at one point. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. 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. clinical entities. or resolved or otherwise put to therapeutic use. with Figaro kneeling on stage taking the measurements of his marriage bed. he has become engrossed in the story.
Like other consultants. I define the term work product to include the notes. For example. This specialized topic is beyond the scope of this book. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. Note for completeness that certain forensic contexts. ambivalences may be divided between the two parties in the case rather than felt internally by either. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. memoranda. The Prime Question Any forensic psychiatrist. files. The usual guiding principle in such determinations is “the best interests of the child. in the forensic setting. Unlike the search for consensus in the clinical setting. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. Although there may be as many views of the patient as there are team members.. render highly complex the question of agency. In the legal context. 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. you work for the consultee (i. The question of whom you work for also will alert you to major pitfalls of bias. two of the victims of this concept are ambivalence and complexity.4 THE PSYCHIATRIST AS EXPERT WITNESS. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). in the clinical context. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. In other words. In medicolegal work. one loser. the court situation is a zero-sum game: one winner. Com- . the adversarial context is one of the “givens” in the situation. both of which reside in every case and every patient or litigant. such as child custody evaluations. you usually work for the patient. whether testifying or consulting. 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. must first ask the question. because that position confers greater neutrality and protection for your efforts. the retaining attorney or court).e. in a forensic setting. they are not case-related documents and therefore are protected from disclosure.e.” a mandate that may trump other claims on your agency. even if it is a compromise (3). as well as the usual lack of a physicianpatient relationship (i. for whom am I working? Your answer will clarify your location within the adversarial framework. and other papers that the attorney generates in the course of litigation. you usually do not)..
the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. Warnings are further discussed in later sections about the interview itself. The issue here is the tension. legal documents. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. 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. of course. or impression. The retaining attorney will guide you in this matter. As we will see later. lest they be exposed prematurely to the other side. The term also suggests that an expert’s opinion rests on a base. is private and confidential. defendants. my own or others’ interview notes. or basis. and relevant literature. fantasy. Therefore. it should. reports. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. court-related issues are often matters of public record and public exposure (in open court). with some exceptions. with exceptions. when in doubt. including records. convicts. your personal attorney can always give you advice on nondiscoverable matters. and captured as well in the consent form for forensic examination as Appendix 1. Although therapy usually transpires within the patient’s self-reported data. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. the forensic perspective almost always extends beyond the individual examinee. be carefully documented. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. 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. In contrast. One trenchant reason for this approach is to obtain corroboration or discorroboration. litigants. suspects. correspondence. Most attorneys know not to include details of their trial strategy in letters to you. . between the “whole truth” and the “admissible truth” (4). later addressed. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case.
one is guided by its rules. prejudice. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. always seeking out verification. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. hearsay-ridden trail by which it comes to the team’s attention. corroboration.. but the Socratic method is one of the mainstays of courtroom procedure. Yet the court may be driven by principles of fairness. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. Once again. absent clear delusions. detailed. or discorroboration . — George Santayana Unlike the treatment context. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. This painstaking.6 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. In contrast. experts in court must play by court rules. and to maintain an appropriately skeptical posture. the forensic practitioner is wise to suspect everyone of having some stake in the matter. hearsay. The witness should be guided by the maxim: when entering the courtroom. may be forced into limitations on this promise because of countervailing considerations of precedent. and similar signs. The Socratic Method Although expert testimony has been compared to teaching. do not demand to be heard: answer all the questions and then stand down when dismissed. 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 forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. obvious self-contradiction. be it moral or monetary. and the like (4). as reported by the mother to the social work intern and then passed on to the social worker who shares it with the team—may constitute valuable clinical data. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. fundamental fairness.. despite the convoluted. though under oath to tell the whole truth. Because a patient in treatment is willingly coming for help. which preclude admission of certain kinds of data or evidence in the name of justice. In practical terms the expert witness.
Introduction: What Makes an Expert? 7 for all important facts. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. All psychiatrists. Rather. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. for example. high-profile insanity cases. Other contextual clues about the hired gun are overly candid advertising in legal media (e. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. including forensic psychiatrists. makes forensic psychiatrists unpopular with their clinical colleagues. reasonable medical probability. or even reasonable psychological certainty).. but certainty is absurd. ask about the local variant. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. forensic work is a sideline to our clinical focus. Reasonable Medical Certainty Doubt is not a very pleasant condition. 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. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). sell time. regardless of its clinical or empirical validity. As a general rule. — 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. For most of us. and leads physicians of all specialties observing. honest experts should avoid these approaches to . a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. we are paid by time criteria. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular.g. Although some will cry that there are exceptions. Note that there may be some jurisdictional variation on this point. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires.
(By the way. “Developing and Marketing a Forensic Practice. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. For various reasons (5–7). Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. you avoid temptation to skew your opinion. If a clearly meritless case is offered to you for review. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. it is an excellent way to benefit from the teaching of colleagues and to share ideas. there are significant clinical.) 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.8 THE PSYCHIATRIST AS EXPERT WITNESS. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. First. SECOND EDITION finding work. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. the prime directive of the legal system is telling the truth regardless of whether it favors the welfare of the patient or severely damages it. summarized as follows (for more extensive discussion of this point. and corroborating data. although the clinician is obligated to place the welfare of the patient above other considerations. and ethical incompatibilities with serving as your patient’s expert. see reference 5 and the appendix to reference 3). legal. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. There are complexities in this area that should be addressed. Often no absolute standard exists by which to measure opinion testimony. Thus. and you maintain your ethical compass direction.” in this volume). 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. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. case materials. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. reasoning. 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).
the wish to avoid paying expert fees that are usually higher than those of treaters. constitutes a bias for forensic functioning. whether because of simple ignorance of the above distinctions. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book.” Although this last is true in certain respects. The Humility Factor Finally. Master forensic psychiatrist Robert Simon. rather than the entire forensic database. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. the therapeutic alliance. Attorneys seem to display a curious indifference to these incompatibilities. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. Second. 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.Introduction: What Makes an Expert? 9 the treater gives in court. even though this may occur appropriately under legal rules. M. From this viewpoint.D.” This provocative image should be kept solidly in mind. thus leaving the jury free to vote its “gut. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). Early in my career. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. not the engine. .. in contrast.” Even when the expert is the only source of data that the jury receives. as noted in the section on malingering above. 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. 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. though essential for therapy. Indeed. Third. the expert goes in skeptical. the treater has usually had only the patient’s reports on which to rely. 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.
gmc-uk. American Psychiatric Press. Hauser MJ. Kane AW: Psychological Experts in Divorce. 2008. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation.10 THE PSYCHIATRIST AS EXPERT WITNESS. 8. 1992 Appelbaum PS. Simon RI: Narcissistic dimensions of expert witness practice. J Am Acad Psychiatry Law 34:14–21. FL. Harv Rev Psychiatry1:4–5. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. New York. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. “the admissible truth”: an ethics dilemma for expert witnesses. 2006 Catto G: Acting as an expert witness. DC. Wiley. 2002 Bronstein DA: Law for the Expert Witness. MD. 2007 Barsky AE. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 1997 Gutheil TG. 4th Edition. Am J Psychiatry 154:448–456. August 2. Baltimore. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Baltimore. Expert’s Quarterly (Winter): 2. British Medical Journal 337 (#7664). Boca Raton. Gutheil TG. Testifying and Everything Else You Need to Know. White MS.asp. Depositions. Williams & Wilkins. Accessed August 5. New York. 1998 Gutheil TG. et al: The “whole truth” vs. 3. Suggested Readings Ackerman MJ. 2008 . 2005 2. 1997 Gutheil TG. J Am Acad Psychiatry Law 25:233–247. Bull Am Acad Psychiatry Law 20:153–162. Lippincott. 7. Lippincott. Washington. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Lewis Publishers. 4. 6. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 5. J Am Acad Psychiatry Law 31:422–427.org/guidance/ethical_ guidance/expert_witness_guidance. Available at: http://www. MD. 2003 Strasburger LH. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Personal Injury and Other Civil Actions. SECOND EDITION References 1. J Am Acad Psychiatry Law 33:55–58. Guilford Press. Gould JW: Clinicians in Court: A Guide to Subpoenas. Williams & Wilkins (Wolters Kluwer).
1992 Dietz PE: The forensic psychiatrist of the future. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. American Psychiatric Press. 2001 Quen JM: The psychiatrist as expert witness. 3rd Edition. DC. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Bull Am Acad Psychiatry Law 15:217–227. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. pp 233–248 Rogers R. 1990 Gutheil TG. J Am Acad Psychiatry Law 30:10–13. 2005 Simon RI: Psychiatry and Law for Clinicians. Springer Science+Business Media. Psychiatric Services 52:1526–1527. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Washington. 2004 Slovenko R: On the therapist serving as a witness. Gold LH: Textbook of Forensic Psychiatry. American Psychiatric Press. NJ. Edited by Quen JM. 1989 . Int J Law Psychiatry 13:281–307. Washington. Behavioral Sciences and the Law 7:145–180. Bull Am Acad Psychiatry Law 2:119–132. New York. Hillsdale. 1994. DC. in The Psychiatrist in the Courtroom. 2001 Simon RI. Analytic Press.
This page intentionally left blank .
To prevent such inadvertent abuse or exploitation of the examinee. their ultimate goals in the legal process.[Finally] I realized that each witness chair comes equipped with a stabilizer control.. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. examinees being interviewed by a psychiatrist. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.. p. and its results may harm. the ethical expert be13 . rather than help.CHAPTER 2 The Expert’s Ethical Universe My first adventure in the witness chair convinced me that it was as unstable as a one-wheeled rickshaw on a downhill course. In this chapter. S-3) THE EXPERT faces many challenges in forensic work. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. First. particularly an empathically attuned one.” (1.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume.” They may forget that this encounter is not therapy. It is a control easily within the reach of every witness—the lever marked “truth. tend to drift unconsciously into a “therapeutic mode..
thanks you for your help. that the firm will not be using you as an expert. your attorney still may use your opinion or report to bolster one aspect of the case or to limit the extravagant claims of the expert on the other side. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. you must consider whether your threshold for case validity may be too low. who—in the ideal situation—accepts this view. defensible. Rather.) For example. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. (Note that even if you cannot support all of the claims proffered in the case. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. 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? . the attorney curses your name. After settling up any monetary adjustments. Turndown rates between 10% and 30% are not uncommon. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. either your threshold for validity is too high or you need to meet a better class of attorneys. this case is over and has been turned down. indeed. If you take every case you review. if necessary. you are friends with one of the defendants). Therefore.14 THE PSYCHIATRIST AS EXPERT WITNESS. this case might be called a defense case because the actions of the defendants are. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. and states. and slams down the telephone. scoffs at your qualifications. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. 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. For symmetry. If you turn down most cases you get. the turndown rate is the percentage of cases in which. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. after reviewing. impugns your ancestors. you decide you cannot support the retaining attorney’s position. The warnings (carefully documented. indicates the intention of explaining your information to the client. You pass this information on to your retaining plaintiff’s attorney. understandably.g. In a not-so-ideal situation.. denounces your integrity.
“White on this side. it is worthwhile keeping mental or written track of the number of cases you turn down and the percentage of the total as a kind of ethical filter. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. Consequently. Consequently. 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). say. guess. all of which you should turn down. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. One model holds that once the oath is taken. and the expert becomes the fully neutral observer and reporter.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. for example. that is. for a particular case outcome). Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). “White. “What color is that house over there?” The novice answers.” Your correct answer would be. the only touchstone is absolute truth as you know it or understand it. inpatient care. Nevertheless. only over those you elect to accept. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. Although these referrals are not strictly turndowns. This model is sometimes called the advocate for truth model. This model has been called the honest advocate model. 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. Partisan pressures from the adversary are put aside. speculate about. that position is always acceptable. all of which you might accept. or a number of invalid or meritless cases. 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. An author described the special sensitivity to what one can swear to in this way: You are asked. In forensic practice. The third model and the one probably in most common use might be called advocacy for your opinion (rather than.” Once under oath. you could receive a number of good cases. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. and so on.
and what you can and cannot testify to under oath. or make whatever use of your opinion that may be of service. .g. and admire him or her. similarly. thus. but the likelihood of identification bias would surely seem to be greater. with whom you have done many a previous case together. If the attorney. that is not your problem. just what does the expert owe the retaining attorney? Strictly speaking. The attorney is free to find another expert. You do owe it to your attorney to level with him or her about yourself (e. the skeletons in your closet. your opinion and its limitations. First. discussed further in Chapter 3. this factor would require greater scrutiny of the relationship by the forensic witness. you do not owe agreement with the attorney’s position or theory of the case. committed quality work. but two dimensions of the relationship pose potential ethical problems. under the rubric of loyalty. might extensive socializing with the retaining attorney—or. yours are providing ethical and valid consultation or testimony or both. out of feelings of being loyal to his or her retaining attorney. you owe only serious. is misreading the nature of the ethical contract between the two parties. 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. The varying forms of bias are discussed below. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. 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. As you work closely with your attorney. identification with your retaining attorney (discussed more extensively in ). A pitfall in this area might be called forensic countertransference. that is. is disappointed that your present opinion is unfavorable. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. Recall that the attorney’s goals are winning the case. settle or drop the case. respect. Extending this idea.” in this volume). this identification may compromise your needed objectivity. “First Principles. I suggest you also owe rigorous candor to your retaining attorney about what you can and cannot say and what the weaknesses in your own opinion are.. This difference is significant.16 THE PSYCHIATRIST AS EXPERT WITNESS. you may come to like.
In this model the attorney lavishes praise on the expert. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. Slovenko (5) has suggested: The adversary system of calling witnesses for each side and then examining them by direct and cross examination has evolved specifically for the purpose of exposing shortcomings and biases and probing the accuracy and veracity of opposing witnesses’ testimony. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. such as overidentification with the judge or the “system. and may add blandishments such as dinners at expensive restaurants and the like. you should refer the case. of course. (p. this effort may be termed nonsexual seduction. you may feel unable to examine objectively a child molester. 33) However. 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. bias can be exceedingly subtle. The fact that the position is more or less neutral does not. p. The . as a clinician. promises many future retentions. 337). The situation does reveal some complexity.The Expert’s Ethical Universe 17 Nonsexual Seduction and Other Forms of Bias One form of bias may be created by the retaining attorney in an attempt to influence the expert. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. An empirical study aimed at obtaining a sense of the prevalence of this and other attempts at influence revealed that 35% of the admittedly small sample had experienced such efforts “apparently aimed at obtaining a favorable opinion” (4. an attorney. for instance. Somewhat idealistically. If you are a victim of child molestation. eliminate other subtler biasing factors. you are expected to manage your countertransference toward the examinee or the examinee’s actions. 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. This neutral position is highly desirable for that reason. There is no shame in this. Similarly.” Note also that. although not common in practice. many expert biases are not detected either by the adversary system or even by the experts themselves. of course. if the countertransference is unmanageable. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial.
experts can be separated into two categories. the limits of your conclusions. Therefore. none of this information should be a surprise to your retaining attorney. the limits of your credentials. p. the limits of your data. expert testimony is like that. the limits of your knowledge.” Your retaining attorney exerts the pull of retention. the true extent of their opinions. Finally. both pull and push must be resisted. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. the opposing attorney exerts the push of attempted impeachment. In the process of cross-examination. while servants beat him with knotted towels.The Expert’s Ethical Universe 19 TABLE 2–1. 261. and the limits of your testimony. and their testimony is often unconvincing. The less admirable experts. defend those opinions passionately and fiercely on cross-examination. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. yes. 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. Again. likely be explored. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. and the hypothetical situations under which their conclusions would be different. Gutheil and Simon (6). if appropriately asked by the other side. Such candor may well enhance their credibility. 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. having become inappropriately enamored of their opinions rather than of the truth. . loyalty. and identification as above.
Simon RI: Avoiding bias in expert testimony. 2004 4. 2007 Gutheil TG. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Williams & Wilkins.20 THE PSYCHIATRIST AS EXPERT WITNESS. 1992 . Springer Science & Business Media. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 1992 Lynett E. 2001 Slovenko R: Discrediting the expert witness on account of bias. Miller PM: Withholding. 7. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. Gutheil TG: Clinical Handbook of Psychiatry and the Law. J Am Acad Psychiatry Law 29:336–339. Defense Research Institute. 8. Bull Am Acad Psychiatry Law 20:141–152. Int J Law Psychiatry 13:249–259. 3. 5. J Am Acad Psychiatry Law 27:546–553. pp 33. DC. Bull Am Acad Psychiatry Law 20:163–177. 39 Gutheil TG. 2002 Gutheil TG. J Psychiatry Law 28:449–457. 1999 Commons ML. 1990 Brodsky SL. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. Martinez R: Forensic Ethics and the Expert Witness. 36. 1983 Appelbaum PS. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Milwaukee. McKinzey RK: The ethical confrontation of the unethical forensic colleague. December 2004. New York. Commons ML. Gutheil TG: Expert witness perceptions of bias in experts. 2001 Miller RD: Professional vs personal ethics: methods for system reform. 2. Prof Psychol Prac Res 33:307–309. Weinstock R. Baker TO: Operator’s Manual for a Witness Chair. Psychiatric Times. 2008 Katz J: The fallacy of the impartial expert. Baltimore. Washington. 38. J Am Acad Psychiatry Law 32:70–75. objectivity and fair compensation. SECOND EDITION References 1. Psychiatric Annals 34:260–270. MD. WI. American Psychiatric Publishing. 4th Edition. 2004 Gutheil TG. Miller PM. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. J Am Acad Psychiatry Law 36:195–200. 6. 2002 Candilis PJ.
Behavioral Sciences and the Law 5:149–160. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. Greenberg SA: The expert witness.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. 2005 Rogers R: Ethical dilemmas in forensic evaluations. Leong GG. 1993 Shuman DW. the adversarial system and the voice of reason: reconciling impartiality and advocacy. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 1991 . Prof Psychol Res Prac 34:219–224. Bull Am Acad Psychiatry Law 17:189–202. 1987 Schultz-Ross RA: Ethics and the expert witness. J Am Acad Psychiatry Law 33:386–389. J Am Acad Psychiatry Law 36:167–174. Hosp Community Psychiatry 44:388–389. Bull Am Acad Psychiatry Law 19:237–248. 1989 Weinstock R.
This page intentionally left blank .
regardless of what is going on with other experts or treaters. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. prescribe. you should—be polite and supportive to your examinee. or perform some other such intervention with him or her. However. the patient is your employer. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. make recommendations. forensic work should thus always begin with the question. but you are not required to preview your findings. 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. as when a defendant. you still work only for your retaining attorney and. Your duty is to the person for whom you are working. considered for examination of competence to stand trial. that is usually clear. That relationship is also a source of certain pitfalls of bias.CHAPTER 3 First Principles IN CLINICAL WORK. share a copy of your report with the examinee. your employer is less clear. discussed in the previous chapter and later in this chapter. you may or may not owe a separate form of allegiance to that attorney’s client. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. that person is the recipient of your opinions. In the forensic relationship. Although you are usually working for an attorney. that attorney’s client. you may—indeed. is being treated in a hospital setting. treat. ineffectual testimony. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. 23 . indirectly. and compromised working relationship. When you examine a plaintiff at a defense attorney’s request.
an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. This telephone call is far from a mere administrative formality. I was asked. If this issue is in question. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . The Retaining Attorney’s Request After the first forensic question. the topic is extensively discussed in the companion volume. politeness dictates that you call the attorney Mr. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. Friendly.24 THE PSYCHIATRIST AS EXPERT WITNESS. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. or Ms. which—either by accident or. How you communicate with your attorney is important from the outset. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. The Psychiatrist in Court: A Survival Guide. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier.” implying venality and bias. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. “Have you discussed this with your attorney?” This threw me. and mastery of professional jargon. refer to those sources. more likely. this approach is self-defeating. Watch for this ploy. clinical experience. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. for whom am I working. informal discussion should be the format. This point came up in an actual cross-examination in a distant state. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. In this chapter. on purpose—he chose to characterize as “mine. not your personal counsel. though this distinction may be intentionally obscured as a cross-examination tactic. Instead. the term your attorney will be used to refer to the attorney retaining you as an expert. It became clear that the cross-examiner meant my retaining attorney. Smith until he or she invites you to call him or her John or Jane.
but subtler versions of personal resonance with a case are not uncommon. have you been the defendant in a malpractice suit. such cases should be reality-tested for the attorney. These issues go beyond mere conflict of interest. that is. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. Your Fitness as an Expert Should you. personally. which is usually (but not always) clear-cut. This example is fairly obvious. if you cannot or should not take the case. 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. board certification. In general. I don’t know a great deal about this specific subject. no matter how unfounded? Do you have a . 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. the attorney will not have revealed confidential information (the names) to you. 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.. Therefore. Note that your special expertise should exist against a backdrop of your general competence in the field. take on this case? Do you have some expertise in this general area or in this specific area? If you do not.First Principles 25 chiatrist actually has some knowledge about. however baseless? Are you now being investigated by the board of registration for some allegation. “Look. experience. and so on. For example. if your aged mother has just died in a nursing home. I recommend hearing about the broad issues of the case first and only then asking for people’s names. the hospital. The attorney can then take or leave this arrangement. 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.g. what is the psychiatric aspect of this case? A certain percentage of cases will turn out to be ones in which your role is presumed to be that of human lie detector. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. but I am willing to become familiar with the issue”). as indicated by publication. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example.
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. 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. the court record chidingly notes. 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. they are all corrupt). the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. Do your best to address this possibility early. including the speaker. for the first time while on the witness stand) is a major expert sin. 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. a criminal record (no matter how minor). are there cases in which you have testified on behalf of the other side. . Fees. SECOND EDITION history of problems in the military. even if the issues are clinically or forensically totally different. juvenile offenses. Time. you realize that the more you write. credentialing problems in the past. “Smith failed to plead . .g.. If you write a lot. the ultimate beneficiaries. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses.” when everyone. This issue is further discussed later in this chapter.In too many medical malpractice cases. .e. have taken an opposite position or opinion. attorneys are invisible within the court record. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. As is often the case. Finally. not for their time and clinical expertise. (1) This quote is interesting from several viewpoints.26 THE PSYCHIATRIST AS EXPERT WITNESS.. Belatedly surprising your attorney (e. unfortunately. 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. contradicts your present position. in the preceding quote.. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. Similarly. . Thus. or have been retained by one side more than the other? Review this with the attorney. . Reviewing your own published work in a particular area is a worthwhile part of your preparation. for instance. the more words you might have to eat on cross-examination. knows that it was Smith’s lawyer who was derelict. for example. Second.
Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. I tactfully suggest that. I know. is “I am not being paid for my testimony. without children bursting in to share their Nintendo triumphs with you). analyzing. this usually means that the client has hesitation or resistance about my rates. 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. whether for psychotherapy or expert witness time. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). Note also that time spent thinking.” Other witnesses may take this further: “My testimony is not for sale. or grasps the point.” or “Nothing” (and wait for the attorney to crack. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. and hires me anyway.” Yes. but you are made of finer stuff. Like the judge previously quoted. and try to maintain that rate. nit pick. I also recommend not “nickel and diming. “So. grits his or her teeth. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. Second. choose a fee that you would not be embarrassed to state. this is a pro bono case for you?”). or challenge the details. Don’t charge for a 90-second telephone call confirming the date of . allowing me to refer to a junior colleague. only for my time. attorneys have timers on all their phones and charge by the split second. Doctor. Indeed. The attorney either takes me up on this offer. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered.” or “I am paid by the hour. and organizing your forensic assessment is part of the work. First. meaning no offense. Use timers or check your watch at the start and end of a piece of work and write down the time. same as you.First Principles 27 not the forensic context. 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. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. planning. ideally delivered in a calm tone of voice and not through clenched teeth. since the doctor-patient relationship is not pertinent to the examiner-examinee one. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. Doctor?” The only appropriate answer. Therapists who are quite capable of taking an extensive. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony.
Bitter experience teaches that it is critically important to have a standard fee agreement or contract signed by the attorney (or insurer) and to operate by retainer or payment in advance. I reported him to the Massachusetts Board of Bar Overseers. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. How much work or time should you devote to the case? This depends on your schedule. the good folks on L. of course. defaulted on payment) by their first attorney. but your consultation must be free of investment in any form in the outcome of the case. If you don’t have enough time. don’t take on the case. when you design your own fee agreement. It should. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. respectively. you can calmly state them without guilt. or for reading a one-paragraph letter. you are charging for time regardless of the outcome of the case. shame. your fee should never be contingent. and give the dates to the attorney. basically consultative services. I took my first major “stiffer” to court eventually and received some of my money. some of which never . Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. when asked about your fees on the stand. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. or other conflict. Urge your attorney to bring up your fees on direct examination to get it out of the way. You sell only time.A. ideally. failure to pay is reality. among others. Ethically speaking.28 THE PSYCHIATRIST AS EXPERT WITNESS. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. Keep your vacations in mind. To novice experts. they referred me to small claims court. Perry Mason. but in my experience. That august body opined that this was not an ethical problem but a business issue or a contract issue. SECOND EDITION a deposition. even if there is). are free to employ contingent fees. at the end of this book. Owen Marshall. Then. The attorneys. you will discover that every subordinate clause in each new version will be poured out in blood from your previous failure to anticipate duplicity by some attorney.. Refuse any other arrangement. the organization in charge of attorneys’ ethical issues. in addition. it is unfair to your attorney.e. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). 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. You give only testimony. for instance.
your consultative. is more accountable. Among other things. The Final Decision Putting together everything that you now know—what you charge. 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. going to testify. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. working for the attorney or insurer is a far better idea than working for the client alone. often in orange-crate–sized lots. what your skills or knowledge support. You simply may be a consultant to the attorney on the merits of the case at the outset. Moreover. defendant. that is. Which comes first boils down to a matter of individual preference.First Principles 29 lead to the courtroom. or will your opinion be used by the attorney to strategize without a report. how free from bias or conflict the situation is—finally ask. which the attorney decides to forgo because it might have to be supplied to the other side? All these considerations affect not only your clear sense of role but also practical matters such as your time allotment and scheduling. testator. how you feel about the attorney. In other cases. your attorney. someone who has to generate a written report. 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. for that matter). As a rule. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. that role would be ethically incompatible with the objective testifying role. You may provide rebuttal material for use by others. nontreatment role is clearer. at some point. Do one or the other. If you are. The usual next step begins with your receipt of written materials on the case. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. as a professional. what your time permits. or even witness. You may be needed to evaluate a plaintiff (or a defendant. . or is the matter likely not to go to trial? Are you going to be a reporter. rarely. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. You might advise the attorney on how to cross-examine the other side’s experts or litigants. your first task might be an evaluation of plaintiff. Will you be expected to testify at trial. an individual client.
including by obtaining expert consultation. the attorney may be employing you in a desperate attempt to clutch at some faint hope. There is nothing inherently wrong with this desperation. However. followed by review of the documentation. In any case. you may be the ninth expert the attorney has consulted. his dangerousness was the crucial issue. The point is perhaps an obvious one. For example. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. The attorney presented the case to me by telephone. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. of course. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously.30 THE PSYCHIATRIST AS EXPERT WITNESS. attorneys would call you only for ironclad solid cases in which they have every confidence. stating that the patient’s dangerousness flowed from his being charged with slashing tires. even in a consultative sense? In the initial telephone call. Regrettably. or a tendency to want to withhold information. does the attorney have merit? As a rule. On perusing . a tendency to assume you will give the “desired” opinion no matter what the material shows. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. you must ask the question. though you would not necessarily know this. for that matter. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. in relation to which. 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 next task is clear. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. compared with some other behavior. 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). a behavior that certainly did not seem all that threatening. the emotional pressure of the attorney’s desperation should not alter your objectivity. I recommend listening for indexes of venality. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. the minority are the ones who pose the problems. Scheduling considerations may determine the first task. In reality. it may be easier to clear 3 hours for an interview than 6 hours to review a chart.
however. If he or she withholds or distorts information or lies to you initially. arguments are the attorney’s attempt to browbeat you into changing your mind. faced with this disappointing fact. will argue with you at this point. after you have given your verbal report. 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. a document often difficult to unearth but essential to the full evaluation.” After mulling this over. in a competence assessment of an elderly woman. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career.) The second red-flag situation occurs when. 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 wording in which your opinion is couched and the substantive alteration of your opinion. Some attorneys. therefore. I told the attorney that she possessed “islands of competence. the malignant category. Expert witness work is hard enough without bad faith. I telephoned the attorney and demanded to know why he had withheld this history. based on your review of the database. In the first.First Principles 31 the old record. the attorney wants to be sure you understand the import of certain data. 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 decided those were near-enough equivalents. the only safe course is not to work with that attorney. In the second. A delicate balance must be struck between reasonable flexibility about. Obviously. however. Somewhat annoyed. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. the benign category. and the result may be your withdrawal from the case. and the arguments fall into two categories. You cannot afford to embark on a course of work with someone such as this particular attorney. which happen to be unfavorable to the retaining attorney’s case. Another less knowledgeable group of attorneys will be educated by your discussion.” He wondered if that could be equally well expressed by “areas of competence. (Note also in this example the value of the previous record. then you have to expect the same in the future. wants to be certain you took note of a particular record entry or deposition statement. 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. based on the patient’s history of significant violence. such pressure should be resisted. for instance. For example. but I emphasized that he and I needed to be clear about the fact that I would testify . you give your conclusions. Most ethical attorneys.
I did not recall because I do not keep that kind of record. and did not stop until I said. Although delighted with this level of detail. hung up. and testify to if asked. I said I would change nothing. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. tactfully. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. I could not ethically omit it. In yet another case. his senior partner wanted to deemphasize the subject by changing some wording. an opposing attorney asked me on the stand when I had received various parts of the database. to “go over” my report. This was trivial. rather than Volume I. Volume II. multimillion-dollar will contest. in an extended phone call. Your request should be global.32 THE PSYCHIATRIST AS EXPERT WITNESS. wanted. inclusion of somewhat negative evidence would show objectivity. moreover. and so on. . Since only the final (or courtroom) opinion is determinative. This suggestion was acceptable. in a high-profile. The attorney said he was offended that I should even think he was suggesting omitting something. and I accepted. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. In a variant on this issue. Agreement was struck. finally. and withdrew from the case. The attorney made a big show of my “concealing” this information. He asked me to use the dates of the depositions I had reviewed. that since I had read it and thought it relevant. The attorney asked for major cuts or deletions. even if some material is irrelevant and other parts are inadmissible. One attorney nearly drove me mad by releasing dribs and drabs of material. in any way. however. only the final opinion really matters. shape or form whatsoever. the remainder of the opinion. in fact. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. I had prepared a 22-page single-spaced report. I told him. It is important to ask for everything from the attorney. under the specious rationale that this method would permit seeing the evolution of my opinion. this rationale is especially ill-founded. In another case. regardless of what may be precluded by rules of evidence and discovery. This is the final opinion I am giving here and now. The negotiating discussion moved into argument. the retaining attorney. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. after discussion I accepted that. “withholding” important data from the jury. and so on.” The attorney moved on to other matters.
I have found that attorneys for some reason often fail to send the exhibits to depositions. and connections that can be checked against the primary record data and flag those in some way. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. “Look. because I’ve got nothing. Recall that a plaintiff can claim anything at first. He was photographed doing the crime. This ethical dilemma arises when the attorney says. after your report. look critically for claims. but you can only imagine it because the actual document has not been provided. I think this guy is probably not insane. Either undertaking or turning down such a case is a defensible position. check the documents you receive against the cover letter to be sure you have everything you should. it is up to you. However. As you go through the documents. for example.” 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. feel free to use it if it suits your own preferences. This problem is a variant of a countertransference issue. you are creating a checklist. 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. directed not toward the patient or examinee but toward the attorney. Forensic countertransference is further discussed in reference 2. each element of which may be confirmed or disconfirmed by other material in the database. long pages of deposition testimony drone on about the exhibit. My own approach is as follows. if you will. Reviewing Cases Critically When the attorney sends you a crate of records and you review them.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. but you 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. even data of dubious validity. Referral to another or an additional expert also may be indicated. Second. you would expect the attorney to accept the limited contribution you may make (if indeed it is limited) and not to attempt to persuade you to amplify or distort your conclusions. As you read the complaint. In general. you should consider some important points. but I’d like you to do this evaluation on him anyway. I find it helpful first to read the complaint so that you know what the basic issues are. a situation sometimes occurs that requires special mention. facts. . First.
cold. or with only the complaint reviewed. . makes it harder to focus on hot spots of the case or areas of contradiction in the database. exert every effort through your attorney to obtain enough time to do an adequate examination. third.g. accept it as a limitation. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. and be prepared to acknowledge this constraint as a limitation on the data. A laptop computer for this task may be quite helpful. for example. however. advance screening. The attorneys on either side of the case may limit the interview time available. I strongly recommend reading large chunks of material at a single sitting. Such an examinee-first approach. you will want to interview the plaintiff. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk.. If the appropriate amount of time for your examination cannot be obtained. 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). no matter how difficult the scheduling might be. This permits. you are familiar with basic interview approaches). Some discretion. insanity in a criminal context). At this point. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. I read the medical records and clinical material or the equivalent. if you have not already done so. SECOND EDITION Second. or whoever is involved in the case (presumably. then to check the record to determine whether the complaint or issue has any validity. 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. including your own. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. you also may want to review relevant literature on the subject. Note for completeness that some experts like to start by examining the litigant first. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. the witness. the depositions or witness reports. and selection of a safe environment may be required for examining potentially dangerous examinees. you may also request that the attorney’s office create the timeline. The Interview After reading the materials. perhaps by a paralegal. your interview queries would thus arise directly out of the material. Given the complexity of many psychiatric malpractice cases. the defendant.34 THE PSYCHIATRIST AS EXPERT WITNESS. the testator.
for some experts. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. 2. but I strongly recommend opposing their occurrence through your attorney. Inappropriate interruptions and objections. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. If you are unable to prevent the above intrusions. then to examine him or her again to clear up matters raised by the written material. 3. be spared this burden. For example. more authentic) responses to your inquiries. inhibit free-ranging inquiry. Jurisdictional rules may make one or all of these procedures mandatory. although this irritates some examinees more than writing during the interview. to have the interview audiotaped or videotaped. For a number of circumstances. the absence of this datum must be factored into the opinion. an audiotape or videotape of an interview may be constructive. This decision is legitimate but bears consequences. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. 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. Examinees commonly play up to the audience or recording device. the expert will receive a request to have an attorney or paralegal present during the interview or. “You wouldn’t let me!. it is certainly beneficial for teaching and for self-review for quality assurance. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- .First Principles 35 If the witness lives locally. presumably. in one case. that side’s attorney may refuse to allow you to do so. Examinees who must travel to see you should. focusing on making a recording. Verbatim material also can be obtained in this way. based on the belief that such an examination can only hurt the case. and suggestions from the attorney present may contaminate the process. Note that when you are retained by the defense and wish to examine the plaintiff. exaggerating symptoms. then to read the database. However. it might be effective and appropriate to examine him or her first. Not uncommonly.” My immediate response. when examining for the opposite side of a case. unobtrusive note taking probably represents the optimum compromise among choices. The fundamental reasons are as follows: 1.” was appropriately disconcerting. cuing. The occasional plaintiff ’s attorney will openly state that he or she never allows an IME (independent medical examination by an expert) of the client-plaintiff. alternatively. however. as a rule.
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.. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. March.. . and so on? .36 THE PSYCHIATRIST AS EXPERT WITNESS.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. The following are four of the principles that I apply as a generic framework for this purpose. as when the complaint boils down to.Attorney Larry Cohen (personal communication. “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. warn once.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. 322) To offer a structure for this stage of the inquiry.. 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. distortion. (4. This subject is addressed extensively elsewhere (3)... in the unpublished 1996 case of Lailhengue v. and I want to sue him. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. a mass tort in Louisiana. p.g. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. a psychiatrist interviewed plaintiffs with an attorney present. Do the deviations from standard of care sound hokey. is whether the case is fundamentally plausible. behind the examinee). 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. but the following vignettes make the point clearly: For example. Plausibility The first question to ask of the case. Mobil.. be it civil or criminal. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.
observations. 1978). he had made several outgoing calls during the time period of the alleged molestation. or the alleged damages? For example. or for some criminal claims of insanity. The phone records aided in challenging the claim by providing a time stamp. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. MGM/UA. she assumed the doctor was not present and could not refute her claim. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. Alternative Scenario In the film The Great Train Robbery (Crichton M. in a sexual misconduct claim later proven groundless. the following dialogue occurs between the trial judge and Edward Pierce. the outcome. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. The notion of the alternative scenario can be essential for assessing civil claims. is the disability due to an actual mental disorder or an avoidance of work for defensive reasons? Is the examinee attempting some sort of retaliation against the defendant for some perceived offense or slight other than that which is claimed? Given the perpetual problem of malingering and baseless claims that are part of the backdrop of every forensic assessment.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. remember not to offer any treatment or treatment recommendations to your examinee. however. even if asked to do so or tempted by medical ne- . how might it have occurred alternatively? Is there another way of explaining what happened. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. If the situation did not occur in the manner claimed. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. or statements of others? Was either the plaintiff or the defendant out of town on a reasonable alibi at a critical point when negligence was claimed? For example. such as sexual misconduct. Finally. She had apparently established these referents by calling the office and receiving no answer. 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. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. about the historic English crime. as well as disability evaluations and similar tasks.
you can ask for a break (water. Note the fully intentional structural resemblance of the above paragraph to informed consent. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. and you must keep several issues in mind.38 THE PSYCHIATRIST AS EXPERT WITNESS. the other side of the case. what we talk about here is not confidential because I am not your treater. and if you do not. she had plausible answers for all my questions. Do you have any questions about what I have told you so far? If the person has questions. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. but since I can only be useful if I am objective. hurt your case. you will interview the subject (plaintiff. you do not have to answer any of my questions. Other warnings. although I hope you will do so. unlike what you may be familiar with from other doctors or therapists. Her emotions were strong and appropriate to the content. such as informing the examinee which side has retained you. my testimony may help your case. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. in both civil and criminal cases. Is the patient convincing and plausible? Do the words match the music. compare the consent form in Appendix 1. seem to be called for out of fundamental fairness to your examinee. The relationship is not a medical one. I am entitled to make note of that. the court). as noted early in this text. and others) as part of your exhaustive review of the database. Only when I subsequently read her deposition did her entire . I have been retained by (your side. if not. recall that anyone can really be fooled. or have no visible effect on your case—only time will tell. please sit down” but before anything substantive has been said: Before we start. there are some things I need to inform you about. that is. As you are interviewing the examinee. Third. Second. and treatment offers are inappropriate. move on to the substance of your interview. 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. answer them as best you can. Fitting Together the Interview Commonly. defendant. You will be challenged to weave interview data into the totality of the case. First. or in an open courtroom. SECOND EDITION cessity as treatment issues emerge in the interview. you are attending to his or her demeanor and its relation to credibility. in a deposition. restroom) at any time. what you say may come out in a report. possibly with reporters present. And finally.
in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether.. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. Besides serving as a valuable lesson in humility. a defendant may be mentally ill. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. on the other hand. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. The plaintiff ’s failure to take those remedial steps does count against him or her.e. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. 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 . but those efforts may fail or be misdirected and may even make things worse. Smith did X at this point. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. Jones did Y and the plaintiff did Z. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria.” In the civil system. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. Similarly problematic is the matter of intervening causes: “Dr. but then Dr. believe deeply in their position. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. because of their psychopathology. but did that deviation cause the damages. particular plaintiff vulnerability for which the defendant must be held responsible. the case was highly instructive: interviewees can be extremely convincing. For example. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. The Causation or Connection Dilemma In many forensic cases. because the defendant is not causally responsible for what happened earlier. Such distinctions are extremely significant in the hard monetary realities of the legal case. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. it only means that you’re being conned into thinking that you’re not being conned. especially when they themselves. the preexisting condition must be deducted from the damages. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions.First Principles 39 case fall apart.
because they would be hard to replace. . Washington. and then has other symptoms or more of the same symptoms. 2. 1994 Gutheil TG. SECOND EDITION were of a particular deviation. event. Or. 63 Ohio Misc 2d 533 at 534.40 THE PSYCHIATRIST AS EXPERT WITNESS. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. Another good rule is to discard. What portion (usually. although it has not yet gained broad enough acceptance to be generally admissible as evidence. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. they may serve you to recall the case at a later point for research or publication purposes. or 2) return the materials to the retaining agency. with permission. Kirby v Ahmad. work by Pittman and Orr (5) on differentiating serial trauma shows promise. and what the exacerbations were of preexisting conditions. and your interview notes. In addition. Even if a case seems “over.” there may be subsequent posttrial motions. all case materials except your reports. appeals. and so forth that require revisiting the materials. If you are discarding case materials. what the results were of subsequent events. or incident. two major approaches apply: 1) shred or have a reputable company shred the paperwork. 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. J Am Acad Psychiatry Law 31:6–9. 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. American Psychiatric Publishing. mistrial claims. if any. Further research may reveal other promising approaches (6). 2002 Gutheil TG: Reflections on coaching by attorneys. References 1. then is sexually abused by a treater. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. keep the latter indefinitely. 2003 3. DC. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas.
J Am Acad Psychiatry Law 31:232–238. MD. New York. 1991 Lees-Haley PR. Guilford Press. Feinbloom RI. & Hall. et al: Response bias in plaintiffs’ histories. Medical Chances: How Patients. 2008. 1993 Deaton JSD: Toward a critical forensic psychiatry. Zasler ND. Lippincott. 1997 Pittman RK. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Bull Am Acad Psychiatry Law 21:37–52. Routledge. 2005 . 1993 Bursztajn HJ. Hamm RM. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. et al: Medical Choices. 1990 Suggested Readings Appelbaum PS. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. Otto R. Brain Injury 11:791–799. in Clinical Assessment of Malingering and Deception. Baltimore. Gutheil TG: Clinical Handbook of Psychiatry and the Law. J Am Acad Psychiatry Law 33:158–175. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application.First Principles 4. Brunner/Mazel. Williams CW. 2003 Group for the Advancement of Psychiatry. J Psychiatry Law 24:3–25. 3rd Edition. 2007 Borum R. Families and Physicians Can Cope With Uncertainty. 5. 3rd Edition. Chapman. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. 41 6. Williams & Wilkins. 4th Edition. New York. Assessment 4:321–324. New York. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. Guilford Press. New York. Edited by Rogers R. J Psychiatry Law 21:33–76.
This page intentionally left blank .
Sometimes forgotten is the fore43 . Generally. and 4) proximate cause. you already know the person is dead. this bias means that the outcome of an event appears as though it had been far more foreseeable. for example (the most common claim against mental health professionals). In a suicide malpractice case. 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. than was actually so before the event in question occurred. 2) breach of duty. I provide several examples of cases—and some of the nuances unique to each type of case—that illustrate and clarify the spectrum of the expert’s work. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. More practically. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. 3) injury to the patient. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. once you know it has already happened. in this chapter.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of
Types of Typical Cases
course, it is quite a different matter if the on-site treater’s conclusions are internally inconsistent with his or her own contemporaneous observations or are egregious distortions of the diagnostic or therapeutic process. But absent such extremes, great primacy should be awarded to subjective, nondocumented material that is observed and enters into the decision making by the on-site personnel at the relevant time. It is therefore important to suspend your judgment while reading a case until the whole has been reviewed. Each side can be surprisingly convincing when assessed in a vacuum (such as the complaint or interview alone) so that premature closure of your opinion is a great hazard of the trade. Resist this temptation, and flag those claims that need to be checked against other parts of the database.
The Standard of Care
The question of the standard of care is a complex but central issue in malpractice; it is the benchmark against which deviation (i.e., negligence) is measured. Unfortunately, the official standard of care or the wording in which it is couched may vary between jurisdictions. As an expert, you must, of course, familiarize yourself with the relevant local standard and its wording early in your work on the case and apply it to your review of the database. Massachusetts case law, for example, has a rather elaborate definition; the standard of care is that of “the average reasonable practitioner at that time and under the circumstances and taking into account the advances in the field.” By inference, this is a national standard, because advances in the field are professionwide, not regional. Other jurisdictions may have what is called a locality rule, which is a standard drawn from the practice of clinicians in that locality. For example, part of my qualification process in testifying in Durham, North Carolina, which has the locality rule, was to demonstrate the various ways in which I was aware of what clinicians do in Durham. In light of some recent American Psychiatric Association (APA) publications articulating diagnostic and treatment guidelines, how are these guidelines to be construed in relation to standards of care? The average guideline is not itself a standard; rather than describing average actual practice, the guideline often identifies what care ideally should be, that is, best practices. For example, if you write a textbook of psychiatry and law that proposes certain recommendations, those are not the standards of care. Those recommendations are called precatory or preaching; that is, they preach what the best care should be, rather than the required average reasonable care. Those recommendations do not pretend to be the standard of the average reasonable practitioner. All of these citations may be legally considered “evi-
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.
Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
and others. these may not necessarily be the questions you would want to ask. but depositions consist of attorneys’ questions to various parties. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. opposing experts. after the records. of your thoughts and reactions. if present. In the process of reading.” However. you are seeking consistency and credibility. 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. I find it valuable to look at the social service history. The point may seem obvious. make some sort of notation each time you read through the record. 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. the next time you read this document for deposition or trial may be 7 years away. On some occasions. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. of course). or whatever. any forensic document) without making some sort of notation of what is significant. as different things may strike you on subsequent review. . or it can be a highlighted entry. plaintiffs. Because keeping a medical record is itself part of the standard of care. for example. you may be tempted to say to yourself. nor are the queries necessarily posed the way you would do so. an underline. or a folded corner of the page. you may have to pose your own questions to the parties. a post-it. as a separate document. This notation can be on a separate sheet of paper of similar notes. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. Next. defendants. To save yourself reading everything from scratch each time.Types of Typical Cases 47 the tests ordered. you read the depositions of witnesses. of any queries or signs of missing data that the record generates to be checked later or elsewhere. The intrinsic problem is that the deposition usually takes place long after the incident occurred and certainly after litigation has been initiated (a problem that potentially biases or distorts the issues. There is something of a translation burden on you to read between the lines to determine the issues. the expert may draw conclusions from the record alone. When reading the deposition. a marginal scribble. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. of what this record entry contradicts or supports in the deposition. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. through your retaining lawyer’s permission and intercession. “This is so clear and memorable that I will naturally recall it later.
credible mental illness (and therefore a likely defense) versus a case with none of these qualities. your attorney’s confidential trial strategy. statements of the arresting officers. namely. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. For example. remember to consider diminished capacity as an intermediate condition. The truly challenging case lies between these extremes. what do you think about this amazing case. “I think you should talk to the retaining attorney. is historical material. or expert. in my (and almost everyone’s) view. while reading a deposition. you may confront the classical poles of the issue. friendly approach into letting your guard down and discoursing freely on your opinions. you can be drawn into the prose by the unfolding drama therein recorded.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. Criminal Responsibility Cases In cases of criminal responsibility. These unethical conversations usually have an informal tone: “So. Out of the entire panoply of available material on a criminal responsibility case. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. a case wherein the defendant had or has a major. 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. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. but still relevant. These would include witness and victim reports. To read critically. SECOND EDITION Although the more information gathered. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. Of second-rank importance. Doctor. Is this defendant someone who seemed to show .48 THE PSYCHIATRIST AS EXPERT WITNESS. In those jurisdictions where the issue exists. litigant. are the most significant. exert the effort to stand back from the process. the more helpful it would be in forming your opinion. weighing the logic of the deponent’s responses. Because of the flow of material and its often fascinating content. data gathered at the time of the alleged act. it is inappropriate to call or write directly to the opposing attorney. On occasion. eh?” Presumably. and so on. you are lulled by this informal. The appropriate response is. and records of any treating clinicians from points close in time to the alleged acts. 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.
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. and so on. the result of the crime. a plaintiff drank from a chemically contaminated bottle and burned his mouth. This issue of proportion is a common pitfall for the novice plaintiff ’s expert.8). largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. the interview in a criminal responsibility case has the least power of all the data collected. some on . The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. Because of the seriousness of criminal penalties. malingering is especially common and problematic in this assessment. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. In one case. as with all forensic evaluations (6). who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. The interview also gives you a chance to assess what might be called a sense of proportion. although mandatory and irreplaceable. for example. an injury from which he recovered rapidly without lasting effect. 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. All the interview data must be fitted to the totality of the database. The plaintiff who claims that his or her major posttraumatic stress disorder (PTSD) and all of his or her subsequent emotional problems were caused by a tiny plastic bottle of vodka striking him or her when falling out of an airplane’s overhead compartment might raise some issues of proportion. The novice expert should become familiar with useful publications on the subject (7. an unrelated accompaniment to the crime. Finally. a surprising number of individuals avoid treatment. I find the interview for an emotional injury case to be of primary value. the cause of the crime.Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery.
50 THE PSYCHIATRIST AS EXPERT WITNESS. as a result of the mugging. consider the so-called strip search case in which store employees suspect the plaintiff of shoplifting goods and perform an embarrassing or inappropriately confrontational public search or semi-strip search. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security.e. and startle responses. especially idiosyncratic history. The interview took place in his basement recreation room. This history may represent the plaintiff ’s “thin skull” (i. but they may also be relevant to assessing damages or preexisting conditions. “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. History. Such a search can be embarrassing and humiliating to anyone. too. with intrusive flashback memories. preexisting vulnerability.. For example. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. you again often encounter the previously described problem of factoring out the effects of serial trauma. SECOND EDITION their own accord and some when given this advice by their attorneys. in regard to which the defendants must “take the plaintiffs as they find them”). I had to interview him in his home because he claimed to be phobically homebound. The shopper then may sue the store for harassment and consequent emotional harms. A question you should ask your interviewee is. He claimed to have full-fledged PTSD. Finally. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. however. The response “My attorney told me not to” conveys its own obvious message. In this situation. I . Next to the small table where we were sitting. may be relevant. 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. but you might discover on questioning the plaintiff that the extreme subsequent trauma and dysfunction flow from a history of sexual abuse or public exposure and humiliation. These “critogenic” (“law-caused”) harms often cloud the picture of the claimant’s actual damages caused by the defendant(s) alone (9) and must be factored out. only to find that the goods are legitimately accompanied by a receipt. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. Not only might these provide a context for the injuries claimed. avoidance.
On the surface of his story. he would have said calmly. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. ate like a lumberjack. He gave the impression on interview that if you fired off a . 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. usually not.Types of Typical Cases knew this because. dying. it turned out. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. the plaintiff or prosecutor can say anything. the case certainly seemed meritorious in theory. that is. Boston Harbor with freezing. fellow passengers. On detailed examination. It is. who. but at incredibly high levels. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. on careful inquiry. and. not totally probative. There is a fundamental asymmetry about media coverage in almost every case. injury. 51 This observation was potentially valuable and worth recording. the alleged malpractice. he saw a jagged metal edge and below that edge. however. yet the observation is valid. In a famous incident. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. unimaginative. High-Profile Cases At one point or another. I myself jumped in my chair. As the “moving . it seemed to me that this incident would induce PTSD in a stone statue. don’t assume—examine. He slept like a log. the former passenger was revealed as a serious. you may be asked to review a case that has been extensively covered in the media before you have been retained. which the average member of the public really doesn’t understand. then you get the case. therefore. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. and did not dream. An apartment dweller sued her landlord for failing to respond to the infestation. to get the actual data. One of my cases raised this issue. without warning. looking straight down past his toes. This passenger.357 Magnum close to his ear. He was strapped into his seat. Initially. of course. stoic fisherman. or crime has generated publicity first. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. the jury ultimately decides. This case also illustrates the maxim. the nose of the plane fell into the harbor. perhaps so. had no signs of trauma whatsoever. had been in the front row of seats just behind the break in the plane.
and spill hot coffee over their thighs and sue McDonald’s.” the attorneys have to create the case from scratch. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. the plaintiff and prosecutor inevitably bias the public’s perception. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. None of this trumpeting means anything. however. pushing the case for all it is worth. 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). in hopes that some of that public will later become jurors. rip off the covers in moving cars. “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.” in this volume provides more reliable methods of publicizing your practice. SECOND EDITION parties. there is no case until it is brought. for example. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. Therefore. but so do a number—perhaps a greater number—of venal witnesses. for example. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. of course. Some attorneys may try. 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. Ninety-nine percent of the time. lest your review should begin with a one-sided perspective. you simply may be reading your newspaper before you are asked to consult on a case. In short. consciously or unconsciously. you have to be alert to this potential biasing factor and be aware of the media asymmetries. The defense attorneys must say “no comment” each time. Even though you may try to tune out the media. the defense attorneys cannot answer the media’s questions. until it is proven in a court of law. In malpractice cases. (Chapter 9.) Another stigma of the hired gun is the counsel of perfection. but this principle may be readily overlooked in a media frenzy. By doing this. “Developing and Marketing a Forensic Practice. A plaintiff can say to the media. the standard references the average reasonable . selling testimony instead of time. because they don’t want to give away trial strategy. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media.” In another case. a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue.52 THE PSYCHIATRIST AS EXPERT WITNESS.
. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care.. but no one lives real life like that. it’s a very serious situation.” This testimony is a classic hired gun claim. Some experts believe that physicians are never wrong and always justify whatever the physicians do. whereby the hired gun whips a standard out of thin air to justify his or her position in the case.” Many “good ideas” theoretically might have contributed to the patient’s care. An even more malignant twist is the made-up or artificial standard. “They (the defendants) should have done more.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. Another variation on this theme is. The hired gun often advances a perfectionistic standard as though it were the average. “If the care had been adequate. I personally have never heard of or read that standard anywhere.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. Waffles are evasive. For example. Anyone always could have done more. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. Indeed. the likely explanation is that the treaterexpert made it up to suit his views of this case. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen. in the real world. The real issue is: does the standard of care require more. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker. The 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. the counter to such claims often begins with the phrase “Well. but malpractice litigation hinges on what is required by the standard of care. . prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11).
of unpredictability. reasonably would have been. then committed suicide. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. but. took some blood pressure pills one time in [city]. the mental state and what’s gone on in that patient’s mind is very uncertain. actually. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. that this is a patient with some history of a. but that is the answer to a different question. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. 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. he gets frightened. a reasonable history. In the following example. The entire answer took four full deposition pages. it seems nearly impossible to extract the actual opinion from the thicket of prose. specifically. rather than ideally.54 THE PSYCHIATRIST AS EXPERT WITNESS. there is a lot of despair and a great deal of thought disorganization in the patient. . an emergency petition ideally would have been. he has taken in despair 10 lithiums some years back. we don’t know whether he stops or doesn’t stop and get [drug] or not. the standard of care required that he be] involuntarily admitted to a hospital before [month] of [year]? Answer: It is my opinion that one of the possibilities that should have been seriously considered would have been an involuntary hospitalization. a patient had escaped from the hospital. goes all the way to [another city]. I am not in a position to tell you that that would be the only choice. More to the point. an hour before that or less signs a 3-day statement and then just disappears. Getting the feel for how the waffle works takes a certain amount of reading of case material. 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]. Note that this entire chunk of testimony is one run-on sentence. That was the answer in toto. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. he should have been [that is. Also note that the failure to consider a valid option indeed may constitute negligence. It certainly should have been considered. Is that a yes or a no? In fact it is neither—it is a waffle. and where I believe the standard of care was breached was that the patient. 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.
1991 Fischhoff B: Hindsight. note that one cannot. J Exp Psychol 1:288–299. Brodsky A. Science 211:453–458. Conceivably. 1975 Tversky A. Int J Law Psychiatry 6:317–329. which makes sure the patient is safe within a structured environment. Edited by Simon RI. and that includes they would be safe within or without the community. 3rd Edition. Gutheil TG. New York. 6. 4. II: clinical uses of legal standards in the interpretation of subjective data. a trend of such waffling answers in deposition does set off my hired gun detector. we must consider another possibility regarding the above examples. DC. Williams & Wilkins. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. 7. I: malpractice prevention and the use of subjective data.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. Baltimore. 2. References 1. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. et al: Decision-Making in Psychiatry and Law. foresight: the effect of outcome knowledge on judgment under uncertainty. for better or for worse. Bursztajn H. Shuman DW. Guilford Press. we may be dealing with an incompetence issue. 3. Bursztajn H. 2008 5. . Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Washington. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. I would prefer never to assume malice when incompetence would serve as an alternative scenario. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. Int J Law Psychiatry 6:331–350. Finally. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. 2002. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. 1983 Bursztajn H. 1981 Gutheil TG. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Yet. Kahneman D: The framing of decisions and the psychology of choice. MD. Gutheil TG. American Psychiatric Press. with impunity. In fairness. but that doesn’t mean that it’s without supervision.
1993 . Psychiatry 1:26–28. Viglion DJ. 1987 11. Legal Studies Forum 9:41–53. Bull Am Acad Psychiatry Law 20:409–418. 1995 9. Psychiatr Clin North Am 17:439–446. J Am Acad Psychiatry Law 34:215–223. et al: Detection of malingering in competency to stand trial evaluations. Law and Human Behavior 19:493– 505. 2004 Knoll J. DC. 2000 10. American Psychiatric Press.56 8. insanity. Meloy JR. SECOND EDITION Gothard S. Washington. 1992 Gutheil TG: A confusion of tongues: competence. 1999 Gutheil TG: Fundamentals of medical record documentation. psychiatry and the law. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity.” J Am Acad Psychiatry Law 35:112–117. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Washington. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. 2nd Edition. THE PSYCHIATRIST AS EXPERT WITNESS. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. Psychiatric Services 50:767–773. DC. Gutheil TG: The problem of evasive testimony: the expert “waffle. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. American Psychiatric Press. 2005 Simon RI. J Psychiatry Law 28:5–18. Bull Am Acad Psychiatry Law 21:23–36.
there is the period known as discovery. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. Attorneys probe and define the limits of their cases. preparing for what to expect from the various witnesses and documents. if any. From the viewpoint of the expert. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. the attorney will likely write the actual prose of the 57 . 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. Note that some jurisdictions practice “trial by ambush” without expert discovery. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand.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. In both cases. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. Under some circumstances.
guided by your input as to what you expect to testify to at trial. obtaining admissions. Depositions The second major area of discovery is the deposition. that is an attorney’s function. The Psychiatrist in Court: A Survival Guide. For example. This approach saves you from having to retract misstatements on cross-examination. In addition. Opposing attorneys usually follow one of three agendas. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. your attorney will advise you as to what requests for information or documents will be objected to or refused. even worse. review Chapter 5 in the companion volume to this book. without retaining you at all. you do not want to be associated with this attorney. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). attorneys sometimes ask you for your tax returns of the last 5 years. On occasion.58 THE PSYCHIATRIST AS EXPERT WITNESS. read every such document before it is turned in. If you discover this to have occurred. reasoning that they can always modify their opinions at trial when the right questions are asked. . 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. either from clinical evidence or experience or from facts in the database. However. If you have never given a deposition or you feel a bit shaky about the procedure. It is critical that everything in your interrogatory be something that you have already decided you are able to support. Do not attempt to decide what is or is not objectionable yourself. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. the expert. 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. based on his or her interpretation of the rules of evidence. hyperbole hurts you. I advise you to withdraw from (or refuse to take) the case. the interrogatory is sworn testimony. it is always unethical. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). SECOND EDITION answers for you. and painting you into a corner. or some combination of the three: getting your opinion.
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). Attorneys also stress that the deposition is their one chance to find out what you have to say. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. the plaintiff. Just answer the question. however. to empty your wordhoard. The attorney can then prepare cross-examination. over and above what has been conveyed in reports or interrogatories. Of course. if any. the attorney. admissions and concessions of points or . but not ideally. inform his or her experts about facts or issues to pay attention to. the attorney is not averse to discovering precisely those points that will help his or her side of the case. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. select rebuttal witnesses. In this latter context. taken before the entire database has been acquired or reviewed by the experts. scheduling problems. a witness’s deposition or medical record that you had not seen before your own deposition. during the course of the deposition. or a full-fledged repeat deposition. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. for instance. This information may or may not trigger a supplemental step for you in the form of an interrogatory. On the other hand. 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. When you subsequently receive. the police.Discovery and Depositions 59 Getting Your Opinion First. you are ethically obligated to so inform your attorney. the defendant. and deadlines may dictate this suboptimal condition. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. but this is a subintention within the larger discovery framework. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. as the Anglo-Saxons phrased it. as a way of ensuring that your opinions may be brought out at trial. This ploy usually can be defused by your attorney. time considerations. a telephone conference. and so on. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. depositions are occasionally. This discovery function is a completely legitimate task and one with which you should cooperate fully. who is in turn obligated to inform the attorney on the other side of your new opinion. and so on. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition.
This procedure elicits sworn testimony. also under oath. Accuracy addresses the clarity of your vision in relation to the known facts in the case. conceptually. SECOND EDITION views detrimental to the other (i. Truth. and accuracy (3). that is. to kill coworkers. even though it was the preadmission history. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness.60 THE PSYCHIATRIST AS EXPERT WITNESS. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. negligence. The answer was no. any contradiction is obviously damaging to your credibility: “You swore this now and that then. fairness. of course. In a wrongful commitment case against the hospital. On arrival at the hospital. The points may relate to guilt. your) side of the case. insanity. although the history. When you later give testimony in court. You are locked in to that testimony. For example. so that your opinion is constrained or limited in a way that decreases its impact. 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. raised many possibilities.. Your Goals for the Deposition One scholar has described the witness’s goals as truth. not the mental status by itself. based on paranoid-sounding content. At trial. he denied to the admitting physician that he had any violent intent. His mental status was not particularly demonstrative of symptoms of mental illness. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. what are we to believe. 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. is the final standard. under oath. Indeed. or damages—the entire gamut of forensic possibilities. however. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. that justified the admission.e. of course. 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. competence. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. . A patient was committed because of threats. much was made of this testimony.
try to eliminate distractions. if more time turns out to be required. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. 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. Get enough sleep the night before the deposition. aware of the serious weakness of the substantive aspects of their case. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. it is an essential part of the evolution of a case and thus your role in it. To do your job. looking for dirt before even addressing the instant case. Rather. another deposition date can be scheduled. hoping to hit the key points if only by accident. A small number of attorneys attempt to wear down the expert by sheer passage of time. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. and your planned testimony. you were probably not paying sufficiently close attention. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. as noted above. this also takes a toll on the court reporter. If you do not go home after a deposition feeling tired and drained. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. will spend hours inching through the expert’s credentials. several factors urge clearing substantial blocks of time for deposition. Some attorneys will have such a primitive view of the essentials of the case that they will flail about over the entire field of psychiatry. Occasionally. intense concentration sustained over hours is hard work. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. Still others. however. The expert should clear a full day for the deposition to be on the safe side. you must be rested. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. Unfortunately. focused. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). . More details about this necessity are discussed later in this chapter. and vigilant at all times.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. alert. your opinions (and their limitations). Prepare for this.
warning. this could be used to instruct both the forensic assessor and the treating clinician as to a means of determining the capacity to enter into informed consent. so you were negligent. Note. ask to hear it again or have it read back. no. therefore. the case manager’s lack of understanding might be negligent. 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. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. First. If the question is compound or complex. but it is quite risky and may compromise clarity. Question: So. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. I don’t—I wouldn’t agree with you there. If there is the slightest doubt. they have to enter into a dialogue with their patient. it is serious. Second. which I codirect. are you seriously telling this court that that sentence [quoted from an article] is one which instructs the forensic witness and the medical health [sic] treater that. let me answer all three components. I am serious. to be an appropriate way of determining competence in the clinical situation. in the following example.62 THE PSYCHIATRIST AS EXPERT WITNESS. On rare occasions. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. yes. ask that it be broken down. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. And the third part of your question is. in order to determine competence.] Answer (by case manager): I don’t think I would agree with that. you can give a useful compound answer to a compound question. A more effective answer might have been. 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. yes. so you were negligent. or evidence of a propensity for violence. or you knew and didn’t act. “The patient gave no sign. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. Question (attorney for staff member): Knowing what we know today. his act could . SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked.
vulgarity. making a chart entry based on what you were told by other staff —for example. of course.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. testifying 5 years after a suicide. The following excerpt of testimony given by a naive fact witness. a patient with apparent bipolar disorder challenged an involuntary commitment. Clinical data also can be cut into discrete segments to attempt to refute. I sure hope I saw him because I usually don’t write things unless they are true. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns.”] Question: Is that the procedure in which you make notes.Discovery and Depositions 63 neither be foreseen nor be prevented. from a previous shift—is universal practice. In addition. you write down what you have observed. not what others have told you? [The attorney tightens that very screw. Obviously.] Answer: Right. paranoia. did not constitute sufficient evidence of bipolar disorder (although. not the individual element. the answer. Her answer ignores the fact that the record does not always note the source of the clinical data. right. social obnoxiousness in various ways. the witness should decline to answer yes or no to such a question.” would be perfectly okay. Question: Did you observe [patient] attending those meetings. or weaken certain conclusions (4). [This is not an answer to the question.] Yet another deposition tactic is what I call gerrymandering the data.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. “In a vacuum. which might be used against her nursing colleagues. But this witness has set a standard for herself: “hope for truth. challenge.] Answer: Gee. 5 years and hundreds of patients later. and grandiosity. not the only possibilities. reveals the hazards of too effusive. [The witness sets her own standard of care. or did you make that entry based on information given to you by others? [These are. too discursive. in a vacuum. no. When seen. that the witness specifically remembers such a detail. For example. the totality of symptoms did so). Gee. . Note that an excellent and self-contained answer to such a question or line of questions is. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. “I don’t recall. of course. the patient manifested rapid press of speech. It is unlikely. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. and too extensive an answer to deposition questions. moreover. any good nurse does that. The deposing attorney inquired.
The pause also allows other attorneys to object. your attorney may be trying to call your attention to something. or you might infer something useful from the type of objection posed. in the belief that your pause means you have finished. Speak slower than usual. Some key points made in that volume are the hazards of guessing. who cannot take down two simultaneous conversations and produce a clear record. Insist on finishing your answer to your satisfaction. Attorneys may sometimes interrupt your answer. shakes. The Psychiatrist in Court: A Survival Guide.) Your answers must be verbal and aloud. usually accidentally. “yes. 2. in essence. nods. Pausing allows you to replay the question in your head and to think about your answer. instruct you not to answer. Spell unusual names.” “I don’t recall. Correct any errors. Also remember to listen carefully to the objection. review the corresponding discussions in the companion volume. immediately correct . drugs. and so on. terms.64 THE PSYCHIATRIST AS EXPERT WITNESS. not your glib response in the deposition room.” reflect a moment on why the time frame might be important in relation to that particular question. a garbled record from too-fast speech wastes everyone’s time and money.” or a short narrative response that contains the question so that the response. Do not tolerate this interruption. and carefully for the stenographer. Recall that the written transcript is the durable version of the deposition. insist on a time frame. If your attorney says. and the importance of speaking slowly. If any of these summary phrases do not trigger recognition. and other myoclonic responses. They are. pause a moment. but sometimes they do so deliberately to distract you or to break your concentration. shrugs. “Objection. the trap of double negatives in the questions. Other useful basic tips include the following: 1. cannot be quoted out of context. incomprehensible questions. each speaker should finish before the other begins. Be careful about overlapping speech. whose written record will be the actual form of the deposition in all future contexts. Overlapping dialogue is awkward or impossible for the reporter. (See also Chapter 5 in the companion volume. and the like. Answers Deposition answers are drawn from a surprisingly shallow pool. lack of time frame.” “I don’t know. clearly. not only for the spelling of your name but for contact after the deposition for questions. 3. SECOND EDITION The Pregnant Pause After the question is asked. Giving the stenographer your business card before the deposition is a highly useful courtesy. in effect.” “no. If your concentration slips and you give an answer that you later believe was wrong or even misleading. because the stenographer cannot record winks.
this may be phrased as when to throw away the “throwaway” questions. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. but I can’t say that any of them were [sic] precisely like this one. Therefore. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. No.” (3. the deposition may be paused for that consultation. Therefore. Second.Discovery and Depositions 65 it on the record. (The question of coaching is more extensively addressed elsewhere [5. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. As a deponent witness. . 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.. the doctor might answer: “Well. for example..6]. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. I find that the most common error the beginning expert makes in a deposition is the failure to concede an obvious and irrefutable point out of misguided loyalty to his or her side of the case. the entire deposition takes place under oath and under penalty of perjury. Therefore. would you agree that a patient’s sui- . have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. I’d be lying. However. but leaving the error on the record means having to retract it on cross-examination. . To err is human. . . . he could accurately answer in the negative. “Doctor. In a suicide malpractice case. where you are retained by the defense. exercise this option. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor.. pp.) When to Throw It Away In my consultative experience.If I said that.To tell the truth. if you are concerned specifically about a matter of privilege that may govern your answer. the deposing attorney may ask. First. . When in doubt. I tell a lie. because no two fractures are exactly alike. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer.” Of course. Two points about this problem should be kept in mind. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting.
in the colorful argot of the national pastime. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query.66 THE PSYCHIATRIST AS EXPERT WITNESS. It is not the defendant’s negligence that is at stake in this situation but your credibility. but the lack of the note did not cause the suicide. Your retaining attorney may also get into the act. Remember that the failure to write something down may be below the standard of care. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. an attorney. and we’ll be done. With an encouraging smile the attorney looks expectantly at you without saying anything. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. on the record. The attorney asks a question. “Just a few more questions. have some water. wait until it gets ridiculous. may attempt to get some off-the-record insight literally in the doorway. the novice witness relaxes and loses focus. thinking about dinner and work to do later. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. and you answer it. check your watch. having inexplicably found his or her second wind. just one more thing”—contain vital material. an attorney may look ostentatiously at his or her watch and say. 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. throw it away. influenced by the TV show Columbo.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. but you know enough not to get involved in that “thing. Occasionally. Subjected to the silent treatment.” At that point. When the answer is that clear.” Wait to relax only after the stenographer has put away the machinery. is “It ain’t over till it’s over. by the way. Doctor. The moral here. make the concession. and move on. Quibbling over the possible exceptions or equivocating in some way helps no one. of course. still. now begins to fire rapidly at the witness. . not unlike some patients in psychotherapy whose doorway pauses—“oh. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney.
The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can. that we can’t isolate ourselves with notions of “I’m not part of our society.. as is “That is outside my area of expertise. rather than asking about.” Avoid the narcissistic trap of “I can answer anything. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. No expert is expected to be an expert in everything or to remember everything.” . and answer that part.. Some questions are curious because the attorney appears to be flailing at. For example. and this response is perfectly appropriate. if you’re grossly suicidal and you have access to guns and drugs and alcohol. but I’m in favor of sensitivity. “I understand you to be asking me.. 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.. “I don’t know” or “I don’t remember” is a fully appropriate answer. they often fail to realize that they do not have forensic evidence to back up those notions.and the answer to that question is . make sure you include the question in your answer on those occasions so that no one is misled.Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. The only valid answer is that those questions are outside your area of expertise. was the widow wrong to do what she did?” or “Was this defendant wrong to feel a desire for revenge?” or “Is that something a child might think?” (assuming you are not a child psychiatrist).. the subject matter. isn’t it a greater hazard to you as a person doing those things—and isn’t it a fact your duty at that point as a psychiatrist arises [sic] to a higher level because of your knowledge of these conditions? Answer: You lost me. This method sometimes involves carefully answering the question that the attorney should have asked. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. I find your question a little confusing.” in a manner to ignore those feelings. using categorization. Note how the first question was a total loss and had to be rejected completely. therefore..
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. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. so I assumed that they knew what they were doing. clear. The two sides. you assumed it was a medical record in good faith. or facilitate calm negotiation. I know that’s a good hospital. and you might well know some of them. you will make it worse. As noted. you will be addressing him or her in slow. A situation that. Your attitude should convey. The only vital difference is the way in which you speak. authentic or merely theatrical. Because the stenographer (and not the jury) is your audience. “Did you make any assumptions about the case before you began?” You may be tempted to say. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. . “I can continue until midnight. That is as it should be. more technical. after which the expert examines for evidence either way. fortunately. stand up in their chairs. heretofore quiet and almost appearing bored by the proceedings. for example. careful speech that may be more formal. never losing your cool. “Well. and demonstrate other regressive behavior. In the specific malpractice context. and so on. and far less friendly and instructional than it would to a jury.” This position of timeless patience puts the onus appropriately on the attorney to move things along.” as it were). the next question will be coming your way. firm. When everyone is through. stay seated and keep quiet until it is over. If the admission note turns out to be a forgery. should that become necessary. more boring. In one deposition. This fight is an attorney-to-attorney matter. Clinicians may be tempted to call on their clinical skills to temper violence. that is not your problem. unfailingly polite. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. The only assumption you should make is good faith. threaten to go before the judge to plead their points. more pedantic. the parties are really the parties in the case. clear. mediate the debate. scream at each other. occurs rarely may throw the novice witness: a roaring fight between attorneys. There are good hospitals out there. but your belief might interfere with your detection of negligence in this case. meaning that you assume that the documents are what they seem to be. no matter how generic or basic it may seem.” This assumption is dangerous because it suggests bias. Do not do anything.68 THE PSYCHIATRIST AS EXPERT WITNESS. Assumptions The deposing attorney may ask. this implies arranging coverage for your patients should a crisis occur.
The pitfall here is that to declare a text authoritative is to endorse it in its entirety.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. to make an informal clinical diagnosis. Novice experts.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. desperate for stable islands of consensus in the tossing seas of uncertainty. Remember. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . the parallel assumption would be “Sane. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. of course. have their limits. this is a matter of risk management for the pharmaceutical companies. inescapably. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. may imitate the attorneys by overvaluing these texts and ignoring their limits. and DSM gives the formal criteria for diagnoses. note whether you agree or disagree in general with the stated points. 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. and innocent until proven otherwise. but ask to be shown to which one the attorney is referring. Moreover. the examining attorney may ask you if a specific text (book. these publications are not uniform in authoritativeness. However. In one limited sense. including those parts which conflict with your testimony. the disclaimer at the front disavows its applicability in many forensic contexts. you may be asked to supply the names of authoritative texts yourself. or article) is authoritative in the field or in the subject of the current case. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. you cannot take the position that no text is authoritative. Most modern books and articles have multiple authors or editors. Alternatively. then. Be sure to maintain a sense of proportion about these references and their utility. After reading the entry carefully. merely official. competent. chapter.” Learned Treatises In the course of a deposition. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. But both. In a criminal context. both sources are “authoritative”: PDR contains the actual package insert information about drugs. yet the clinical diagnosis and treatment still may meet the standard of care. For example. no one wrote a previously published book or article with the exact case in mind in which you are involved. Some experts respond that the DSMs are not authoritative. Comparably.
Frankly admit if anything has been removed from your file. in the video deposition. laboratory values. The Video Deposition A modern wrinkle on the procedure is the video deposition. rehearse—the details of the links between your conclusions and the facts. remember to go to bed early. review your files as diligently as if you were going to trial. Arrange to do so with the attorney sufficiently early. In some cases. you also may want to meet one more time with the attorney’s client before the deposition. 571) Final Predeposition Preparations Before the actual deposition. and you may have to furnish copies to opposing counsel. and so on so that you can buttress all your conclusions with specific elements from the database. Meet with the attorney and review the issues. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. If you are really unsure about something.A good rule to work by is that the statements you make in court should be of the same quality and reflect the same scholarship as if you were making them at a scientific seminar or publishing them in a reputable journal. In addition. actually visiting a site may be important.. the camera is . outlines or summaries for quick reference) may be subject to subpoena for the deposition.. Many attorneys anticipate this problem and send only bland correspondence. summaries. some discuss details of trial strategy in their letters to you. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. record notes. this conversation is protected. statements. it is wise to review—and if necessary. but this is not your problem. Above all. be balanced and accurate.e. The latter may be privileged. or “cheat sheets” (i. Under some circumstances. (8.. Any notes. police reports. check the accuracy of any numbers (9). Obviously. you will need to review a wide array of information. Give both (or several) points of view if they exist. p. whose transcript will endure and be used for any impeachment possible.70 THE PSYCHIATRIST AS EXPERT WITNESS.. You must exercise some care in these discussions as they may be discoverable. SECOND EDITION When quoting the literature. consult your own attorney. well before the deposition. Also. especially if details remain unclear or if over time the clinical condition has changed or evolved. The usual audience of the standard deposition is the stenographer. In contrast. Your attorney then can communicate with the retaining attorney. let the attorneys determine whether it is discoverable.
Despite the fact that there may be movement of various sorts by others in the deposition room or studio. jargon-free. In the current economy. checking for errors and typos. At least one copy of the transcript is returned either to the court reporter. and the deponent signs under pains and penalties of perjury. trial-suited English. the only vehicle) for the expert’s testimony. and pedantic level of the ordinary deposition but in basic. instead of—your personal appearance in court. but errors can creep in. not at the ponderous.” and rendering. of the word “not. the expert may wish to retain a copy for teaching purposes after the case is over. who may see the video displayed in addition to—or. “irresponsible” as “responsible” are small changes with profound results. As in the trial described in the next chapter. the deponent expert should always ask for a personal copy to review in preparation for trial. Remember to keep your language level. 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. This approach risks eventually being papered out of house and home. juror-friendly. at times. the retaining attorney. My personal favorite is when the phrase. say. the video may also serve as the vehicle (in this case. representing the jury. careful. you should try to direct your gaze toward the camera lens.” 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. but under some circumstances the notarization can be waived. If the expert is known to be unavailable for the trial dates. Recall that omission of a comma. “It’s an us-and-them situation” was rendered “It’s an S and M situation. you are under constant scrutiny. Most court reporters are extremely good at their jobs. . a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. and must beware of inappropriate gestures and personal bodily attentions. or the deposing attorney for distribution to the parties. The video deposition presents a number of possible pitfalls. read it very carefully. When you receive the deposition transcript. After the Deposition Always ask to read and sign the deposition. this time in a permanent record. If the deposition has been particularly instructive or noteworthy.Discovery and Depositions 71 the audience.
Gutheil TG. Baltimore. Child Abuse Negl 17:571–572. 2008 Rice B: Malpractice: how to survive a deposition. Vols 1 and 2. Williams & Wilkins. 5. Simon RI. Willliams & Wilkins. IN. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. Current Psychiatry 7: 25–28. J Am Acad Psychiatry Law 34:18–22. MA. 39–40. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. National Institute for Trial Advocacy. Falmouth. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). SEAK.72 THE PSYCHIATRIST AS EXPERT WITNESS. Simon RI. MA. 36. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. 6. 2003 Kaplan HI. WI. J Am Acad Psychiatry Law 31:6–9. 1983 Gutheil TG. 7. 1982 Gutheil TG. Milwaukee. 2001 Baker TO: Operator’s Manual for a Witness Chair. Bull Am Acad Psychiatry Law 10:17–27. 4. MD. 2007 Gutheil TG: Reflections on coaching by attorneys. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Suggested Readings Babitsky S. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. 1996 2. Baltimore. legal fictions. The Practical Lawyer 33:69– 78. 1999 Babitsky S. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. The Practical Lawyer 39:55–63. Med Econ 82:45–48. 9. 3. Defense Counsel Journal 4:174–179. Lippincott. 2006 Gutheil TG. 1987 . J Am Acad Psychiatry Law 29:313–318. South Bend. 6th Edition. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. Mills MJ: Legal conceptualization. Falmouth. 8. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. 2005 Suplee DR. Woodruff MS: Deposing experts. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. SEAK. MD. Defense Research Institute. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 1993 Malone DM. SECOND EDITION References 1.
If you are testifying away from home. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. 2. 73 .CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. 1. examining the companion volume. review that chapter. Planning. I review some of the basic courtroom procedures. preparation means not only reviewing the entire database with great care but also thinking through the story you plan to tell by means of your direct testimony. and devising means of locating key passages in the database quickly. Nevertheless. pled out. settled. Preparation. The Psychiatrist in Court: A Survival Guide. I addressed the six Ps of trial preparation. and they are the subject of this chapter. trials do come around every so often. is recommended as an orientation. In this chapter. For experts who have spent little or no time in court. For the expert. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. For the expert witness. the same six Ps should be reviewed but with a slightly different emphasis. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. If you are uncertain about the guidelines for trial preparation.
4. If you have a disability.74 THE PSYCHIATRIST AS EXPERT WITNESS. Confirm travel arrangements and other details. and what the emotional climate of the courtroom is. 7. 3. location of restrooms. and all such details. the unknown issues. . Insist on this conference if the attorney is equivocal or resistant to the idea. your publications (especially those relevant to this case). if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). Clarify and confirm your travel arrangements. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Practice. parking arrangements. what previous testimony has been given. 5. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. the contradictory evidence. Consider taking a taxicab to local courts to avoid parking hassles. practice sketching any visual aids you will need for the courtroom blackboard. Even more distressing. and the data relevant to the other side of the case. Define the limits of your testimony. It is not enough to know the database. You also need to hear how the trial is going. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. and the expected cross-examination. and select useful examples from your experience to make central points. Pitfalls. Build in contingency plans for the possibility that the trial extends into the next day at least. and your past experiences. Review the weaknesses in your opinion. the floor of the courthouse on which the courtroom is located. On cross-examination. Presentation. the relevant literature. what the judge is like. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. you need to know through choice and practice how you will convey your opinion to the jury. Pretrial conference. Clarify in your own mind how you plan to deal with questions about your fees. 6. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. the location of the trial. The pretrial conference is probably one of the most important stages of preparation for trial. some attorneys for the other side have been known to stall or drag out their questioning of you for the explicit purpose of rattling you with the need to make stay-over arrangements. You should rehearse ways of expressing information to the jury. Most of these matters are best handled on direct examination where some measure of control can be exercised.
named for the plaintiff in an important U. Wait in the public seats until actually called to the stand. and to ensure that recognized approaches to the subject matter are chosen.e. particularly experts. much valuable information can be gained and the tone of the room determined. Once in the courtroom. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base.. you will find it valuable to locate the restrooms and telephones. the best approach is to exercise care about the methods used to reach conclusions. Such a hearing.S. this kind of potentially valuable hearing and screening device can also be abused (2). 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. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. but if you are the only one standing. where the jury will be and what . It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. Supreme Court case. its methodologic reliability. Regrettably. When you are allowed to hear the testimony of other witnesses. 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.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. to be able to articulate the bases and reasoning behind those conclusions. which are sometimes in obscure locations in older courthouses. Practical Matters Preparing to Go On Many courts sequester witnesses. that is. experts are not allowed to be present in court for the testimony of any other witnesses. and whether the testimony will fulfill the legally required expert function in the court. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). rise for the judge’s entrance. From the viewpoint of the expert. Before going into the courtroom. sit down. 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. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. may occur prior to trial (occasionally. The topic requires more extensive discussion (1).
2) as noted. When no documents are before you on the stand.76 THE PSYCHIATRIST AS EXPERT WITNESS. the opposing attorney cannot search through them for something with which to impeach your testimony. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. The expert appears more confident and knowledgeable about the case. and ensures the accuracy of your recollection by direct verification. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. What to Bring Experts and their retaining attorneys vary in whether they prefer. only a copy of the expert report that is already in evidence or only a curriculum vitae). yellow self-stick notes. a particular citation is.g. in an often extensive chart or deposition. if needed. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. SECOND EDITION the room looks like from the hot seat). On the other hand. tabs. as are all the substantiating data. The downside is the need to remember a vast amount of detail and to recall where. or your own table of contents devised for more extensive documents. because his or her opinion is being given from memory. having the whole database on the stand permits greater support of your testimony with specific data from the documents. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. dog-eared pages. essential medical records . Note again the importance of having and practicing a plan of organization. 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). the entire database is usually present at both the attorneys’ tables and therefore is immediately available.. even for experienced experts. 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. and 3) you may become lost in excessive data. while the experts are testifying. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. Each preference has its pros and cons. The expert should determine which of these two approaches is more suitable. Recall that in almost every case. Note that some anxiety is normal. Key documents might include my report and interview notes. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. the attorneys will have it). My own preference is to strip down what is brought.
eccentricity. do not wear new clothes. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. affidavits. I can use my table together with the attorney’s copy of the deposition. in the sense that you are usually under observation by someone—the bailiff. ornamentation. Arrange appropriate coverage so that you do not have to worry about being reached. or if you must. This table of contents enables speedy reference to key facts. your mode of dress should convey the fact that you are a professional in the courtroom on business. If I need the actual page or quote. 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. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. Demeanor Being on the stand is not unlike being filmed. Stick to the conservative business mien. during breaks. 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. or carafe of water is an excellent idea. glass. if you must. Do not wear or carry your cellular telephone or beeper. testifying is thirst-provoking work. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. Finally.. Above all. perhaps comfort should rule. showing off how busy you are and how court is taking you away from really important matters. For depositions of less central players in the case. A handy pen or pencil. highlighting marker. the bailiff usually will keep it filled.The Expert in Trial 77 (pruned to relevant periods if needed). and cutting-edge high-drama fashion or excessive informality. ensure that they are turned off. and you will not go wrong. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. and check in. the bored juror. Indeed. If you are completely uncertain about what to wear to court. Avoid either ostentation. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. the defendant or . what you wear should fit well and be well broken in.e. depositions. It is unclear whether either strategy is superior to the other. 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. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. and similar data. I take to the stand a one-page table of contents (i. Arranging for a cup.
Beware of “involuntary” gestures. If the attorney is hostile. humor directed against yourself may show that you do not take yourself too seriously. not of the attorney in question. or obtuse to the seriousness of the issue. however. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. and sarcastic. it is important. but of the jury or the entire process. an attorney—at all times. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. and you are unfailingly polite. Avoid personal body attentions (such as scratching) as much as possible. Be clear. There is no reason for a teacher to get mad. impugns you. you are likely to be too involved and therefore possibly biased. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. obnoxiously facetious. A witness with an apparent chip on his or her shoulder (and in court. or degrades you. for example) as body language consistent with candor. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. demeans you. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. Even when an attorney attacks you. you win the exchange. not credible. With discretion. flip. attorney moves on to another subject]. even when someone else is speaking. all such chips are apparent) is particularly unconvincing. Your identity on the stand is that of teacher. 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. and stuffy. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. Without such alliance. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. Make your point because it matters. and you want the jury to understand it. Doctor?”). .78 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION plaintiff. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. sneering. Attorney (with a slight sneer): Isn’t it true. Doctor. If you become huffy or outright mad. you know or should know that it is not personal and has nothing to do with you. as follows. Scholars recommend keeping the front of your body open (by not folding your arms. humor may seem disrespectful. Such reactions may be misconstrued as disrespectful. get interested in what you have to say and stay interested. fluffy.
Because jurisdictions differ as to the precise definition.e. even inhibited souls will nod if they can hear. the concept is sometimes rendered mathematically as a 51% certainty. the trial is a human process. evasive. In general. Although you are a teacher.The Expert in Trial 79 Being fluffy means being too abstract. They are not excessively academic. Keep in mind the expert’s role in telling the story in a coherent. blunts your argument and weakens your credibility. Speak to the most distant juror to be sure your voice is audible. not stuffy. project. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. making roving eye contact with various jurors whenever possible. Finally. and to admit that rules have exceptions. As occurs during the depositions noted in the previous chapter. theoretical. to accept a possibility as such (almost anything is “possible. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. explain. they are usually poorly received by juries. but without intimidating staring. a juror who cannot hear may be hesitant about saying so in open court. concede a remote possibility and move on. If you must use. the most common beginner’s error in the courtroom is the inability to “throw it away. Haggling with the attorney over a tiny abstruse point. Testimony Direct testimony should unfold in an organized manner.. as a result of your careful and thoughtful preparation with your attorney. what fools these jargonists be). or waxing argumentative rather than instructive. or prone to nit-picking. and “waffley. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide).” that is. pedantic. If in any doubt about your speech volume. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. If no microphone is provided. jargon laden. to agree that some things happen sometimes. If a microphone is available. or respond to jargon. Direct your extended remarks to the jury. to concede a point that really doesn’t mean much. yet may ultimately give up on your testimony after straining to hear for too long. understandable manner that brings the details together in a recognizable gestalt. good teachers are lively and interesting. ask if you can be heard by the farthest ranks of jurors. not just a classroom exercise. It is not the same as “certainty” (100% sure). .” but only a few things reach reasonable medical certainty).” Make your point as concretely as necessary and back it up with hard data from the database. avoid discussing unconscious dynamics unless absolutely needed for your point.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Unlike formal, even pedantic deposition language, which is directed to the court reporter and aims at clarity above all to develop a valid transcript, trial language is juror-friendly, basic, and may be more extensive than the austere, brief answers from deposition. Asked an open-ended question (“Can you describe that process?”), answer until the matter is complete; if the jury appears to be losing focus, or if you see the dreaded “eye glaze” sign, wrap up your answer and wait for the next question. Remember that no matter how intensely you may feel about anything, you must scrupulously avoid any of the mildest forms of profanity or blasphemy, even as rhetorical devices. Recall that, in some parts of the country, and for some jurors, saying “Lord, no!” for emphasis in answer to a question involves breaking one of the Ten Commandments. There are various reasons for the expert to use a blackboard, marker board, or flip chart (for further discussion, see Chapter 6 in The Psychiatrist in Court: A Survival Guide). The expert should prepare some information that can be presented effectively by using one of these aids, if only to break the talking-heads monotony of witness after witness. Make sure you can be heard when using the blackboard, marker board, or flip chart because, if there is a microphone, you will now be away from it. Do not be ashamed to boom it out. Similarly, be sure to write large enough to be read by the farthest juror; ask the far ranks if they can see the first letter or picture you write or draw. If not, increase the scale. Novice experts may not be aware that the witness who faces the blackboard and mumbles the sound-track accompaniment to his micrographia is not only ineffective but also actively alienating, possibly even insulting, the jury. The companion volume makes the following point:
In addition, when you pick up a piece of chalk in your hand and you stand in front of the blackboard, you become, as a transference object, the most trusted figure in common human experience: the teacher. The teacher knows. The juror may not know what the capital of Virginia is—or what chlorpromazine is used for—but knows the teacher knows. The power of the image transcends what you actually draw; what counts is the apparent effort to get your point across, because juries respond to the idea that you are trying to help them understand. (3, p. 62)
When responding to cross-examination, maintain the identical level of interest, animation, politeness, and responsiveness as you demonstrated on direct examination (although you are allowed to become more alert). The expert who is warm, winning, and discursive on direct examination only to turn crabbed, argumentative, defensive, and guarded on cross-examination is communicating only bias. You are telling the truth; what difference does it make which side is asking the questions? The hostile, attacking attorney who
The Expert in Trial
meets with your unfailing politeness and persistent civility is perpetrating suicide, not homicide. If either side asks a genuinely excellent question, say so but only if you mean it. Answering cross-examination questions does not require that you help out the attorney with various possible misunderstandings he or she may have about psychiatry; just answer the question. The only exception to this rule is when so profound a misunderstanding of some fact is taking place that for you to answer the question would merely precipitate and perpetuate a French farce situation of two parties on totally different wavelengths; this situation is not funny in court. Clarify the point, then wait for the next question.
Some experts develop a code with their attorney to aid covering certain points brought out on cross-examination. For example, expert and attorney may agree that if the expert prefaces an answer on cross-examination with, “Well, that’s an interesting point...,” it means that the expert wishes to be asked about the issue on redirect. Such an arrangement may be considered, but in practice it may be more cumbersome and distracting than it is worth. In a personal communication (K. Lipez, November 1996), an experienced judge noted that his opinion of an expert falls if the expert has failed to anticipate, and seems unprepared for, an obvious line of questioning. For example, in a criminal trial with a proposed insanity defense, the question of malingering is highly relevant. An expert who seems surprised at this issue being brought out on cross-examination reveals serious lacunae in understanding the forensic issues involved. The same judge cautioned against too facile a psychiatric or psychological explanation of human behavior. The posture that everything can be explained (or even worse, “I can explain everything”) is unconvincing to juries and may even imply that the examinee has succeeded in manipulating the psychiatrist. Finally, I suggest giving up the fantasy of being able to predict entirely the effect of what you say on the jury: the jury will decide how the jury will decide. In a case in which a psychiatrist was being sued for malpractice in a patient’s suicide, I gave extensive defense testimony and remarked, strictly in passing, that, although it would not be ethical to give my own independent diagnosis—because I had not seen the patient—the diagnosis given by those who had seen the patient was fully consistent with the recorded symptoms. A poll of the jury after the defense verdict revealed that the jury had been impressed and perhaps even swayed by the fact that the only witnesses who used the word ethical were I and the physician-defendant.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine . In fact, given the actual frequency of sexual misconduct complaints by BPD patients against their therapists, patients with BPD are statistically more likely to be initiators of true claims than false ones.) Horrified at this evolving debacle and unable to stop it or even comment on it until the next break, I took refuge where all witnesses in such a spot should take it: the absolute narrow truth. The attorney might catch on or might not, might be baffled or might not, might be annoyed with you afterward or might not, but those are not your problems. The oath always provides sanctuary in a storm. A similar dilemma faces the testifying expert when some significant fact is revealed for the first time during trial testimony—a fact that changes your opinion. Do not panic and feel guilty, abashed, or inadequate. This revelation may be the lawyer’s lapse, but it is not your problem. Your job is to tell the truth; if the facts substantively change, an ethical expert’s opinion would be expected to change.
Remember to keep your testimony basic and jargon free. Illustrate your points with analogies and metaphors that you believe the average jury will follow. The following is an example of how you might discuss in court the mechanism of action of a selective serotonin reuptake inhibitor:
You know that the spark plugs on your car work by sending a spark across a narrow gap (show by using your fingers). Well, the nerves in your nervous system, including the nerves that control your mood, communicate in the same way (sketch a synapse). The upstream nerve sends an electrical current (draw a lightning bolt) down to this spark gap called a synapse (write word on board), and when it gets there, the current releases little blobs of chemicals like tiny water balloons. These float across the spark gap and hit certain “hot buttons” on the end of the downstream nerve and set off the next electrical current (draw another lightning bolt in the downstream nerve). Now that these chemicals are out there, how do you turn them off for the next bolt? The upstream nerve sucks them back up like a vacuum cleaner, and the system is ready for the next nerve impulse. Now this medication blocks
In the same way. Over the years. may record every pause. such an avoidance of cross-examination is sound trial strategy. The jury hears the testimony twice—an aid to both memory and persuasion. stutter. some scholars assert. 83 Although this mode of explanation may seem cumbersome. 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. and the expert has theoretically prepared to tell the story in a coherent manner. any testimony from this witness would be bought and meaningless. do not underestimate juries. Respect the juror. I have been impressed by their ability to grasp what is at issue. This is a powerful argument for at least organizing your thoughts before you begin to testify. grunt. the chemicals stay in the spark gap and keep working so that your mood is lifted. “I have no questions for this witness. as if to convey. Um—as the events became closer to the—um—incident itself [the murder]. even if the technical details are lost in the shuffle. As you can grasp by merely reading this response aloud. 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. That is how this kind of antidepressant or mood elevator works. Consider practicing such a description with your attorney or colleagues or friends. .—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. and slavishly but perfectly appropriately. the jury usually appreciates being given the “inside story. Recall that this is direct examination by his own retaining attorney.The Expert in Trial (draw a barrier) this process.” Realistically. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed.” but this appreciation is lost if the jury cannot understand or follow your description. Adventures in Cross-Examination For experienced experts. “I don’t care to waste my time on this whore.” preferably said in a mildly contemptuous tone. and throat clear that you emit on the stand. just like putting your hand over the vacuum nozzle. depressed— um—and seeking help. the best cross-examination is. if you do that. the dirt stays on the floor. it is numbing to a jury. The hazards of lack of practice are revealed by this following segment from an actual murder trial. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. The expert is on direct examination by his own retaining attorney.
as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). deposition. such as the previously listed leading questions. the question answers itself ). forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. the attorney asks closed questions. or publications. never ask a question to which you do not already know the answer. ask only questions to which only one answer is possible (fittingly. The following are some examples of the last (all are leading questions. however.” the attorney may move on to the next question after you have said. or the answer may be obvious from the question (i. Instead. but in this instance it is not. and even the attorney’s competitive feelings directed toward the expert. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. “That’s generally true.84 THE PSYCHIATRIST AS EXPERT WITNESS. The attorney may know the answer to a particular question from the expert’s report. the attorney’s competitive strivings with the opposing attorney or firm. or alternatively. no problem. equivocating hurts you. “Although the present case is a clear exception to that rule. interrogatory. The tight rein on which you are held may make it difficult to get your opinion out there. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony.” are almost always answered yes on the theory that almost anything is possible).e. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. “that’s generally true” and you may be too flustered to challenge the action. questions beginning “Is it possible. First. surprisingly.. not always) aware of two fundamental principles that should guide this activity. attorneys do not perform this simple but effective maneuver. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. isn’t that right. what you say is often true in other cases. If you want to say. can they not?” • “Another expert might come to a different conclusion. It is better to say.. SECOND EDITION Most often. Even those attorneys who opt to engage in cross-examination are usually (but. Throw it away. which may be asked on cross..”) or exhibitionism (“Watch me shine!”). The second fundamental principle of expert cross-examination is keep the expert on a tight rein.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 attorney’s wish or need to have the client see the attorney doing something.” .
because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. the attorney may quote something that you wrote or lectured on. a judge may even decide to declare a recess: “While you are thinking. if not. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- .” and do so. After Rodin Pause briefly before answering each question to allow replay of the query in your mind.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. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. Practically.” Listen with intense attention to the question.” “no. Always ask to see the context if you do not immediately and completely recall it. if needed. If either will do so. We’ll reconvene in 15 minutes. The key word is truthfully. say it. and a mere yes or no may fail to convey the “whole truth. some attorneys advise not discussing your testimony. Scholars liken agreeing to this either-or approach to signing a blank check. “I’m going to take a moment to think about that.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). or have you dozed off? It is best to state. 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 sources suggest answering at the outset. Quotes On cross-examination. a question will require more time for prolonged thought or searching of your memory. consequently.” This response may be foreclosed by the judge directing you to answer anyway. to consider your answer carefully. Doctor. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. we are going to take our midmorning break right now. At times. and think seriously about whether yes or no will represent the whole truth. state that you cannot answer yes or no. to be sure you are clear about the question. Breaks During breaks that occur in the middle of cross-examination. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex.” The break gives you ample time to think. You took an oath to tell the whole truth. and to allow your attorney to object. this type of questioning means that you have only three answers available: “yes. At such moments.
in the trunk of your car. . Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. you may have been deposed. Your final opinion. you may have written a report after reviewing some quantity of material. Some experts want to call their offices during breaks. others find telephone calls distracting and let whoever is covering for them handle things. you would have been obligated to so inform your attorney. In theory. An aid to this conceptualization is to label your first report. I recommend avoiding eating heavily. Later. The thrust of this line of questioning is to convey that your opinion is premature. but let’s assume it did not). is your actual trial testimony. Now you must testify on the witness stand. even worse. Use your own judgment and knowledge of your biorhythms. This change is as it should be. Subsequent communications may be labeled supplementary reports to keep the sequence clear. The Final Opinion During the course of expert consultation. incomplete. and some additional material may have come your way just before the trial (which. the one that counts. as a “preliminary” report. because it is based on data. SECOND EDITION sions with your own personal lawyer are protected). Crises Various crises may strike while you are on the stand. For the lunch break. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. if requested. had it changed your opinion. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. or inadequately grounded in data. Some experts have only an iced tea for lunch and forgo any other intake to avoid postprandial torpor and the dulling of attention that may accompany it. you have confused loyalty to your attorney with the oath to tell the truth. such as the discovery that you have left a key document in your suitcase across the courtroom or. your opinion.86 THE PSYCHIATRIST AS EXPERT WITNESS. These include biological and physiological crises or circumstantial ones. 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.
Doctor. fans!”).” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). What do you care what happens? You only testify under oath.” At this point you say. or weak. Do not be inhibited by fears that. it is preferable just to hang in there. If you do shake hands. measured breathing. you seem to be acknowledged . The judge will almost always grant this. and serious distractions impair your work. for example. Focus on slow. and go.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. sickly. conservativeness is probably better (the discreet nod rather than the glad-hand wave). as always. entitled. you will appear inept. No one knows the effect of these gestures. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. it poses a dilemma of a no-win situation. On occasion as I have left the courtroom. The judge dismisses you by saying. Some more extroverted experts thank the jury out loud. Do not hang around to hear what other witnesses say. If a delaying tactic is not used. wave at the jury box (“So long. one of the parties or even one of the attorneys reaches out to shake my hand. Deal with the problem and then continue with your task with restored focus. that’s all. More troublingly. The End of the Affair Finally. nod politely to the jury. by needing to go to the bathroom. and sit more upright to relieve tension. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. While this is a common and respectful courtesy. or emit other social behaviors. and both grudgingly acknowledge that neither has any more questions for you. when you are through. or to learn of other subsequent activity. Do not stop to chat or debrief with the attorney. Your Honor. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. it invariably conveys the strong suggestion of partisanship. Ask the judge if you may take a brief break for personal reasons. “You (or the witness) may step down” or “Thank you. stretch your limbs behind the screen of the stand. you exit. “Thank you. Your job as expert is important to the case. Forensic etiquette requires that you just leave. childish. This behavior conveys too much interest in the outcome for someone who is not a party to the case. at odds with your objectivity. get down from the stand. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. to see the outcome.
SECOND EDITION for good (but partisan) work. Because this brief volume can serve only as an introduction. 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. always seek feedback and reactions to your participation. Surprisingly. I recommend instead treating each testimony experience as a kind of continuing education: What did you learn? What questions were you asked that caught you by surprise? Which crafty attorney’s gambits succeeded and which failed during your crossexamination? Did you in fact get to make the points that you believe needed to be made? Did you feel you were clear to the jury? Was there a better way of explaining or describing something other than the way it came out in court? These questions and their thoughtful answers are the true indexes of your success in trial. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. For your personal development as an expert. by letter or telephone. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. Finally. J Psychiatry Law 28:235–251. “juror countertransference” toward the attorneys. you seem rude. Gutheil TG. Most courteous attorneys will inform you later. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. 2000 . Take only your report. the best teacher. this task is for the lawyers. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. A far more detailed analysis of testimony can be found elsewhere (5). and the like—impinge on trial outcome.88 THE PSYCHIATRIST AS EXPERT WITNESS. If you have traveled far with a heavy load of database materials. as much as possible about what happened and why it happened. while acknowledging that experience is still. some forget. References 1. however. Forces beyond your control and outside your testimony—such as the demographics of juror selection. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. as always. 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. It is perfectly appropriate after some time has passed to call and ask the outcome. if you do not or you ignore the outstretched hand.
The Expert in Trial 2.
Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993
Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.
It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91
. If a trial and a deposition are scheduled for the same time. Large numbers of people are involved. An attorney who planned to have you “bat cleanup” (i. hours. You can count on your eyeballs the number of times this clockwork model actu- . Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. which also require several people to synchronize their schedules. As a rule of thumb. sharp. but during the very week that you have scheduled four weddings and a funeral. and telephone calls to resolve them. the hierarchy of urgency and therefore attempted postponement (or at worst. the other side may be willing to have your testimony inserted into their side of the case. tops. theoretically.92 THE PSYCHIATRIST AS EXPERT WITNESS. flexible. so let’s put you on first at 9:00 A . he or she will be exerting the greatest efforts to make it all work out. You must do the best you can with what you’ve got. the trial should take precedence. add another layer of challenge. Travel glitches (discussed in Chapter 10.e. two trials in different states will be called simultaneously. and accommodating. testify last in order to summarize) may be willing to move you earlier in the case and somewhat restructure your direct examination to compensate for this maneuver. maybe 2. The tension here is that some courts. “The Expert on the Road. comes before a report.M. The second priority is depositions. for example: “Doctor. of course. Because your reports can be done at any time of the day or night.. and other-side attorneys are reasonable. with a deposition for a third case. You’ll be out of there by lunchtime. I can’t imagine my direct examination taking more than an hour. although obviously fewer persons and a shorter time frame are involved than are for trial.” in this volume). and serious matters hang in the balance. SECOND EDITION for months without any forensic activity whatsoever. This type of schedule is close to reality. requiring two parties to match schedules. I know you have a busy schedule. others are not. Trials take first priority. court dockets are crowded and leave little flexibility. a forensic interview. You may have a little room to maneuver in terms of the order in which you testify. attorneys. with suitable preparation of the jury. Because your attorney has the most interest in your presence. cancellation) is as follows. negotiation. You’ll probably be cross-examined for 1. The last two priorities are interview and report. but things happen. In extreme circumstances.” Smile politely when you hear these words but make expansive plans. Such a conjunction of scheduling conflicts requires a great deal of diplomacy.
it is not uncommon for an out-by-noon case to extend into the next day.Some Pointers on Expert Witness Practice 93 ally occurs. DC. In the end. Washington. J Am Acad Psychiatry Law 32:356–358. the odd juror gets stuck in traffic. no clear conclusions can be drawn. The judge assigns a long lunch and hears another few motions just afterward. 2006 . Commons ML: Trading forensic and family commitments. Gutheil TG.) 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. partner. Gutheil TG: “Paraforensic” aspects of expert witness practice.” In addition. difficult choices may have to be made. (More suggestions on scheduling are included in Chapter 10 in this volume.M. negotiation may be possible for some scheduling conflicts but not always. References 1. J Psychiatr Pract 12:50–54. 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. a judge will treat the time between 9:00 and 9:30 A . 1996 Suggested Readings Gutheil TG. Why? Although some judges are scrupulously punctual. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. American Psychiatric Publishing. 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. The attorneys wrangle over whether some document relevant to the next witness is admissible. However. Although my colleagues and I tried to study this issue formally (2). Occasionally. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. The subject may represent some kind of taboo because it is rarely discussed. 2. 2004 Kearney AJ. Thus. 2002 Reid WH: Forensic practice: a day in the life. The jury takes a long midmorning break. and family. Bull Am Acad Psychiatry Law 24:533–546. some are not.
This page intentionally left blank .
for a worker’s compensation claim. an attorney. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. to serve as a witness. In this chapter.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. 95 . Examples of such writing include a letter providing an assessment of a person’s fitness to drive. In The Psychiatrist in Court: A Survival Guide. I focus on writing the full-fledged forensic report. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. or to serve on a jury. or a full evaluation of a person’s competence to stand trial. or for a disability determination. a description of an independent medical examination for a personal injury suit. allowing careful legal analysis and reflection on whether you will be helpful on the case. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. some basic principles on letter writing to the court are described and are not repeated in this chapter. In all such cases. a court. a defendant’s criminal responsibility. or a physician’s deviation from the standard of care. 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.
. M. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. I refer to him explicitly in the text). These are all powerful arguments for careful thought. has generously and graciously granted me permission to cite some of his advice on report writing. In this chapter. Forensic report writing. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. It should be just long enough to cover the essential information but not so long as to exhaust the reader. for which I am most grateful (where I cite his material. For similar reasons. Consequently. It should contain everything that you need to support your opinion and no irrelevant material. painstaking preparation. General Remarks The report as a whole should meet certain criteria. and 3) the full. all should govern the form of the report. of course): 1) no report. Critical documents should be briefly summarized within the report. which states all of your conclusions and the analysis of all the relevant substantiating data. Resnick also identifies the “four principles of good writing”: clarity. SECOND EDITION Alternatively. Resnick. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. then. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. Obviously.96 THE PSYCHIATRIST AS EXPERT WITNESS. Resnick. According to Dr.. the attorney may ask that you not furnish a report. the report may present materials or approaches that the attorney does not wish to share with the other side.” Dr. Without referring to other documents. which in that jurisdiction is discoverable by the other side. because the first is self-explanatory and the second is an extract of the third. I emphasize the third form.D. 2) a summary 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. In other situations. the reader should be able to understand how the opinion was reached from the data in the report. Despite these useful functions. brevity. without detailed discussion of the bases or reasoning behind those conclusions. and humanity. simplicity. “Reports should be self-sufficient. It should stand alone. which presents your database and conclusions only. Phillip J. detailed report. may take three major forms (with variations possible. and meticulous proofing and review of any report you produce.
the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records.” and subsequent contributions. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest .” • “I examined Ms. In that case. John Johnson). sometimes called the referral.. I examined (name of examinee) with regard to (forensic issue). that is. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses.” Some attorneys.g. The heading should also include your letterhead and the date of the report. or the type of case in a civil matter (e..” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). . additions. The Occasion The occasion. Resnick is included at the end of this chapter. legal pleadings. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. One way is to provide the case citation or caption in whole or in brief (e. One model by Dr.. the case or docket number if known. otherwise. and depositions. or emendations should be titled “Supplementary Report.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report. think of your report as a memorandum and use a standardized format.. Identifying data can be presented in a number of ways. Smith v. emotional injury or psychiatric malpractice). police reports. the charges in a criminal case. Include any interviews per- ...g. reasoning that the occasion is obvious from context. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents.. use a standard business letter format.. or State v. Jones et al. of the report should address the question of why you are writing this report. what is your standing in the case that justifies this missive? How and why did this examinee get to your doorstep? Examples might include the following: • “At the request of Attorney John Smith (or Judge Janet Jones).” The Database After identifying the occasion.
you are free to choose your favorite. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . The documents may be listed alphabetically. A typical conclusion in a malpractice case. no convincing case has been made for the inherent superiority of either approach. (or.. or according to some natural. logical grouping (e. or other) is free to stop there and make decisions about future directions in which the process should go. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience.g. the overall basis is described as both the database (all the material reviewed in the case.. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. 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. 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. 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. 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. SECOND EDITION formed and their date and length. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. that. chronologically. Although each group has a rationale. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. . First. and so on. Note the wording. attorney. it is my professional opinion. all depositions). including interview data) and your total clinical background of training (what you were taught) and expe- . about the disposition. in the treatment of (plaintiff ). held to a reasonable degree of medical certainty. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). all medical reports. for example.98 THE PSYCHIATRIST AS EXPERT WITNESS.
Resnick suggests using subheadings to organize the information and facilitate the flow of the report. standardized legal language). “If there are two versions of the facts. the expert should scrupulously avoid assuming one side is correct. and credibility as an expert witness. it is predictable that plaintiff and defendant tell different stories. Dr.. Finally. insanity. Resnick states. sometimes frankly contradictory. sometimes different spins on the truth. “Reasons supporting opinions should be clearly and fully stated.e. Supporting Data After the conclusion. the defendant usually has admitted the act for which he or she is charged. Second. In these cases. Remember that the conclusion. If your conclusion comes at the end of the report. Resnick explains.e. this section should contain extracts of previous material directly supporting the points you are making. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. usually. be it competence. more likely than not). you can present the supporting material in several ways. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. If your conclusion is stated at the outset. effectiveness.” Multiple Realities In civil cases. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. 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). malpractice. In criminal cases involving the insanity defense. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. The reader should not have to use his/her own inferences to understand the point. is essentially boilerplate (i. 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. although representing the core of your opinion. Dr.. offer alternative opinions. but occasionally. As Dr. or other.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). your conclusions should be presented in . Third.” In every case.
) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data.” This approach prevents your seeming to side with one party in the case. some are not. Limits. Some requested alterations are fully ethical.. Whichever approach you actually take in your written report.. There is no absolute guideline for this procedure. and shortening the report by aggressive editing... Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner.. Constraints. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. on the contrary. A challenging gray zone is negotiating about wording. asking for the addition of new material not supplied to you earlier.. (Remember you must be candid about everything you believe to be true. then . Postreport Negotiations After your report is finished and has been sent to the attorney. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. which make for a stronger report.if defendant’s version is true. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. or agency for which it has been prepared. you may receive requests to alter the report in some ways. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. even if it has been removed from your report for brevity. then . SECOND EDITION the following form: “If the allegations are true. or to change the substance of your opinions. and Rebuttals If there have been any constraints of time. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. interview of plaintiff blocked by attorney. these should be recorded.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. to alter or misrepresent facts in the database. summarizing. judge. money. These are not weaknesses of the report. then . but generally there is no inherent problem . and deleting. 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).100 THE PSYCHIATRIST AS EXPERT WITNESS. A case example was discussed in Chapter 3 (“First Principles”) of this volume. it would be a weakness not to acknowledge these factors candidly. or data (such as inadmissible material.
intensity (likely. 12. very likely. 7.1 1. 2. 9. . 6. 8. Be careful about changing wording concerning issues of causation. 13. Identifying information: Source of referral: Referral issue: Sources of information: Qualifications of the examiner: Statement of nonconfidentiality: Past personal history: Family history: Sexual and marital history: Educational history: Employment history: Military history: Relevant medical history: Drug and alcohol history: Legal history: Psychiatric history: Prior relationship of the defendant to the victim: 1Used with permission. The Criminal Report: An Example The following is Dr. 14. 16.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 4. 5. and effect of emotional injuries—three common problem areas. but it may get you started. 11. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 17. Resnick’s outline for a typical criminal report. 10. extremely likely). I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 15. 3.
2007. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. MA. 25. 22. 19. Hess AK.102 18. report writing and expert testimony. New York. 24. 20. Petrilla J. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. Edited by Weiner IB. THE PSYCHIATRIST AS EXPERT WITNESS. et al (eds): Consultation. 21. pp 511–528 . Poythress NG. Wiley. in Handbook of Forensic Psychology. Falmouth. 23. 3rd Edition. SEAK. 1987. pp 577–605 Weiner IB: Writing forensic reports. Am J Psychiatry 143:164–169. 1986 Melton GB. New York. 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. Guilford Press.
two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. and inefficacies. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. “Yes! We (or the corporation) will take your case.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. Unfortunately. embarrassments. to connote the Harvard connection).” The ability to say yes to all comers seemed like a good idea at the time.) 103 . In addition to the (largely fantasied) corporate benefits we dreamed we would derive. In the late 1970s. and we drafted an announcement. We retained an industrial designer to help create a logo (highlighting crimson. heard of. In this chapter. and a typeface for our official stationery. such an affiliation would mean that we would be able to say to any attorney who called us. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. We sent this announcement to every attorney we had ever worked with. (I believe this excluded only admiralty practice and the law of the sea. a letterhead. We will let you know shortly which of our directors will be working with you.
” in this volume). that is. The Key Approach As time went on. and expense resembled our own responses to offers that come in the mail to sell us insurance. . Based on this reasoning. an expert’s marketing strategy shifts to generating favorable word of mouth. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. list. thought. and unspecialize. The balance must be struck between dualities such as generating word of mouth versus hucksterism. 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. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. opportunistic. is suspect and not reliable as an approach (see also Chapter 4.104 THE PSYCHIATRIST AS EXPERT WITNESS. 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. Most recipients almost certainly awarded our announcement the coveted circular file disposition. The result was tantamount to letting a drop of water fall into a large lake. commercialized hustling for business—or the appearance thereof. clinicians) led to forensic referrals: word of mouth. SECOND EDITION All this effort did nothing. write. We received a few form announcements from two or three firms about their offerings. 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. Support for this theory came from Harvey Research in 1994. speak. Ordinary advertising in Lawyers’ Weekly. for example.e. word of mouth). inform. and pride and confidence in your work versus hired gun certainty or grandiosity. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. The Delicate Balance In all approaches to marketing. but the net effect for all this time. “Types of Typical Cases..
If you inform your peer groups about your availability. they may think of you at that point. . the GAL may do a preliminary survey of the psychiatric aspects of a case. if you have one. they may turn away a case because of a conflict of interest. Although your forensic peers may seem to be your competition. For your clinical peers. Thus. and factual. trifold sheet of fine paper with a brief description of the expert and the services. Finally.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). then reporting to the court. 2) your forensic peer group. informative. and 4) judges. the announcement should display the professionalism that you plan to bring to the work. 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. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. they will be useful to you in several ways. and send it to attorneys and clinicians. judges may need your services. or other reasons. Describe those services you can authentically offer. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. Serving as a guardian ad litem (GAL. too little time. or use it in some other appropriate way. of course. First. Avoid any hype. you may wish to send a short. and lawyer neighbors and friends who might pass your name along. 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. including listing services you are not truly expert in. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. in effect. Alumni bulletins and class reunions are also opportunities to get the word out. Among other roles. will see you in action in deposition or trial. previous associations with the attorneys on the other side. Attorneys whom you can inform include your own attorney. it should be tasteful. If you are moving into a new town. Opposing attorneys. hand it out at a lecture. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. 3) attorneys. polite letter informing local judges of your availability for forensic services. Some experts replace the announcement with a minibrochure: a single.
or commentary and have it published. sign up as an entry in an existing lecture series. review. no one will show. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. Admittedly. this skill is acquired. try to become involved in local media such as call-in shows. many referrals to psychiatrists come from publications. or established continuing medical education programs. Beat the Press (2). . and similar humiliations. which are often seeking a stable of experts to comment on medicolegal stories of the moment. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). You will be exposed to attorneys and legislators. departmental conferences. however. but the wounds of experience are probably and ultimately the best teacher. Although it is useful exposure and a valuable resource to write an analysis. and media exposure may open you to crank calls. Other listings in compendia such as “Attorneys’ Guide to Experts” and those of the National Forensic Center may be viewed as less clearly objective and neutral and may pose similar risks to outright advertising. Instead. the topics of which appear on the screens of attorneys’ computer searches. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. Finally. may be helpful in dealing with the media. One reference. these publications may be explored. Become active in your district branch legislative committees and processes.106 THE PSYCHIATRIST AS EXPERT WITNESS. good visibility also can be obtained by letters to the editor of major journals reporting on a single case or responding to the articles or letters of other contributors. such as hospital grand rounds. SECOND EDITION List Listings can be effective as well. In my opinion. such as clinicians and lawyers. both of whom may be potential referral sources. Your podium demeanor may convey at least a little about your expected performance on the witness stand. The APA Public Affairs Office provides some guidance in dealing with the media. Write In our computerized modern age. ambush journalism.
training. and interest. Conservatively stating your incontrovertible credentials (actual appointments. even at the outset. What About Web Sites? In the modern era the use of Web sites has increased for all professions. 3. Begin your career by unspecializing. one turn to the Dark Side of the Force. a point that cannot be overemphasized. It does not matter if the case is trivial or small potatoes. Be extremely careful about posting your qualifications. From the absolute onset of your career. and your course as hired gun may be marked. three novel but common questions in the qualification phase of the modern deposition are: Do you advertise your services? Do you use expert broker organizations? Do you have a Web site? All of these associations can be used in attempted impeachment—for example. Consider taking on some pro bono work as well. extremely public. It may then take you years of work to unblemish your reputation. but you will obtain valuable exposure. including this one. modesty. as it were—but the Web site is perhaps the most explicit. based on your fine performance at the deposition. If you decide to use a Web site. some critical considerations are the following: 1. Have the site professionally designed with attention to taste. widely publicized mass murders. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. skills. certifica- . No case too small. Beware of making or seeming to make extravagant claims for your knowledge. wherein you follow the ancient maxim.” This is a losing strategy. no matter how slight the issue. You will derive no income. Even minor. place in the profession. 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. and other aggrandizing statements that are. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. In fact. integrity must be your watchword. trivial cases allow you to be observed in action by potential employers. by definition. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. In the same vein. I will work only on high-profile. 2. Do not bend the truth to satisfy the attorney. some broker organizations guarantee your opinion.
Dattilio FM. choose only those experts whom you would be confident to have on your side if you were being sued for something. Guyant A: Beat the Press. SECOND EDITION tions. conflict. Additional Pointers The issue may seem trivial. UT. You are saying to the calling attorney. “I can’t take this case (because of time. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. and effective. Finally. In analogy with clinical referrals. Remember to thank your referral sources. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. specific required expertise). Building a practice on word of mouth is slow. recall the value of brokering. References 1.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”).108 THE PSYCHIATRIST AS EXPERT WITNESS. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. Return telephone calls are the easiest marketing device and one of the most effective. 2003 Fulton S. Sadoff RL. I reemphasize the point made in Chapter 1 (“Introduction: What Makes an Expert?”) in this book: it is important to have a salaried job and/or a private practice to insulate you from slavery to the fiscal pressures of forensic work. but 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. Salt Lake City. you are also revealing yourself as a good first stop on the search for a good expert. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. but I will take it upon myself to find somebody good who can. sound. for referrals. publications. but no other method is as reliable. American Book Business Press. J Psychiatry Law 31:5–19. including attorneys and fellow clinicians. and demanding of patience. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. etc. . at times trying. 2002 2.” Although you are feeding the competition.
Tageh Press. 1997 Feder HA: Succeeding as an Expert Witness.. I disclose that I have lectured for SEAK numerous times over the years. . Glenwood Springs. New York. Inc. out of Falmouth. CO. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. WW Norton. Massachusetts.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide.
This page intentionally left blank .
examinations. William Reid.C H A P T E R 10 The Expert on the Road: Some Travel Tips for Testifying Away Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy. M. or interviews. mockery.D. and opprobrium. 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. As always. In this chapter. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. I address some tips and strategies for the expert who is inexperienced in traveling to cases.. this chapter will be too obvious and not relevant to your needs. 111 .D. Simon. and his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter.. seasoned travelers may skip the chapter entirely. The author is indebted to Robert I. 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. M.
I recommend The Packing Book (1) as an excellent resource if you always arrive at your travel destination with the wrong clothes in serious disarray and find you have left out several important items. and your colleagues. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. and hotels directly and save you much time and stress on the telephone or online. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. on rare occasion. These services can book flights.112 THE PSYCHIATRIST AS EXPERT WITNESS. the emerging online travel services (Expedia and the like) may prove useful. Opt for crushproof fabrics and materials whenever possible. cars. testify or interview the next day. and is in good repair. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. matches. travel agents. you must assume significant time delays and be prepared for your time commitment for court appearances to go into a second or even third day. Alternatively. to ensure that it still fits. 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. Some General Recommendations Travel Information Travel guides are available everywhere. Running shoes also allow you to sprint through airports to . Try on everything before you pack it. looks professional. and return that day or the following one. stay overnight in a hotel or similar setting. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. and one pair of shoes. the Internet. the process takes even longer. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. Still other guides are provided in the suggested readings at the end of this chapter. 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. and general information can be obtained from books. polished shoes for men and women). especially if you have not worn it for a while. Consult with significant others for their opinions if needed. especially in flight. For cases that involve land travel. Another useful reference is Jet Smart (2). you may make the appropriate adjustments.
Until data emerge. If you review a different case on the way back. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. Avoid checking baggage if you can.g. the literature is relatively unhelpful (the issue of double billing. which are. For example. if you are flying to a case and use air travel time to review the case. The Ethics of Billing Bill strictly according to your fee agreement. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. do not bill for sleep (you do it anyway). but not alcoholic beverages. a useful principle is to avoid double billing in any form. in-room movies. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. Separate business from personal comfort. You have enough to worry about . massages. do not bill separately for that work because you are already being paid a day rate. or 2-hour long-distance calls to your paramour. If the trial runs longer than a day or so. for example. 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. you may bill for that time but not for the ticket because the first case paid the whole trip already. because some law firms are slow to reimburse hotel and plane expenses). you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. fortunately. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases..The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. for one or two telephone calls per day to the office to check on things. It is possible. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. rare but extremely stressful when they do occur. Seek equitable division of costs for multiple-case trips. 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. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. for one telephone call to the family. 1 day at your day rate. is addressed nowhere in the forensic literature). and for the regular three meals. then.
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. These should include sewing items. you may opt to wear the suit or outfit on the plane and guard it in transit. In general. with a little applied topology. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. Wear your workout or running shoes on the plane. Current travel restrictions have shifted the allocation of liquids. the principle of multiple function is one of the basics of a dynamic understanding of mental life. a small roll of duct tape. Dopp kit. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. In psychoanalytic theory. decongestants. It is definitely a basic principle for assembling your kit. makeup bag. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. multifunction “pharmacy” also should be included. but you may wish to experiment with a friend’s suitcase. The Kit Whether you call it a travel kit. or toiletries case. which may also be prepacked. do not skimp or economize on the roll-along suitcase. . stain-remover sticks that do not contain toxic petrochemicals. not to mention the current airline custom of charging extra. and pack the rest of the gear. even under the seat in some cases. safety pins in various sizes. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. extra shoelaces. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. Alternatively. eyeglass screwdrivers and replacement screws. it is indispensable to your successful travel ventures. lotions. light flashlight for power outages and searching under beds for lost items. and rubber bands. and extra combs. a small. such as a variety of buttons and threads to match your clothes. Remember also that your kit should contain items that permit repair. extra eyeglasses or contacts if you wear them. and similar medications.114 THE PSYCHIATRIST AS EXPERT WITNESS. What you take should have similar versatility. and string. A small. and creams to quart-size plastic bags. these roll-alongs often fit either in the overhead compartment or. Other useful miscellaneous items include adhesive bandages of various sizes and types. remedy. antacids. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. In addition. and cleaning.
First. experienced travelers can skip this discussion. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. You breathe through a filter that lasts long enough. you are undistracted by social obligations and family strife or background noise. it is more professional to meet with your attorney the night before the . fly out. Almost all modern hotels in the United States have smoke detectors.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. often hooked to a travel alarm clock. The latter appears at first glance both socially desirable and economical. as well as extra disks and the instruction manual if not on the hard drive already. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. and special arrangements. try breathing through a moistened towel for short periods. If you have a disability. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. procedures. remember to carry light extension cords and voltage adapters. call the airline early to check on facilities.” this discussion will be helpful. I recommend the hotel or motel for several reasons. because someone else is paying your way to the location. Seriously consider avoiding airline food entirely. but some precautions seem sensible. This item is available through a number of catalogs. Drink water steadily to avoid travel dehydration. or order special low-fat meals. I carry a compact “smoke hood. Secrets of Staying If you are unfamiliar with the expert art of “fly in. testify. The traveling expert is sometimes torn between staying at a cold. for you to get out of the toxic smoke and gases to safety. institutional hotel or motel and cadging free lodging with friends or relatives in the area. Besides a small flashlight. although occasionally. in theory. but you can buy your own compact version. Second. Emergency Items Neurotic fears can certainly flower when you travel.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. fails). on very dry flights. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely.
Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. nausea on the witness stand also may be misinterpreted. It is probably safest to avoid all alcohol during the trip before testimony. if desired. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. SECOND EDITION trial in a hotel room or conference room. an essential part of effective testimony. this is. but not all. a situation that can leave you hoarse.M. obviously you should eat lightly and stick to what is familiar to you. Whether the room’s air system is heating in winter or cooling in summer. congested. 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. A simple but effective method is to soak a washcloth or hand towel in cold water. a business trip. After the trial. the air is invariably dry in most hotels. of course. If a paper clip or safety pin does not suspend the cloth or towel well. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. have your martini on the airplane home after it is all over. 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. Experimenting with culinary exotica is asking for a case of turista at worst.116 THE PSYCHIATRIST AS EXPERT WITNESS. wring it out thoroughly so that it doesn’t drip. and headachy on the stand. after all. is to make a beeline to adjust the hotel’s alarm clock or clock radio. My second move often is to arrange a do-it-yourself humidification of the room. Don’t forget to set the room thermostat to your accustomed household temperature. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . Secrets of Eating In traveling to court. 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. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. back up the call with your travel alarm. Some. hotels provide irons. My first move on entering a hotel room. after I put down my luggage. you are free to visit friends and family at your own discretion. Remoisten it as needed. .
of course. either by closing them completely or fastening gaping fabrics with safety pins. as noted. 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. plan your trip to allow time for recovery from jet lag. without aftereffects. breathing techniques. benzodiazepines. These have ill effects. spending some time in direct sunlight may be helpful in adjusting your biologic clock. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. and similar relaxants. After court.M. This term refers to sounds containing all frequencies. just as white light contains all color wavelengths. When you are up and awake. usually described in catalogs as “sound soothers. stain . I recommend it. so you may have to carry some supplies in your pocket or purse. the chatter of housekeeping staff just outside your door) is white noise..” sleep sound machines. actual memory loss can occur—the last thing you need. hot baths. and with sleeping pills. Examples include prescription medications that you need during the course of a long day. also eat lightly. Ordinary AM radio static and the sound of surf are two examples of white noise. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. Catalogs sell portable battery-operated white-noise generators. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. Far better results accrue from sleep hygiene maneuvers. Many travelers find it helpful to block out morning sunlight with the drapes. you can have a serious meal without ill effect. or similar terms. by using either alcohol or sleeping pills (barbiturates. but all the data are not in. When possible. including hangovers. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. or even a different time zone. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. What to Take to Court Courthouses are notably lacking in amenities. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. or others) at bedtime.
CA. SECOND EDITION removal. and a headache remedy for the obvious problem. Flying Cloud Publishing.) St. San Francisco. Commons ML. Santa Barbara. I welcome your suggestions and favorite travel tips. 1998 Gutheil TG. J Am Acad Psychiatry Law 29:202– 206. or refreshment. 4. 1994 (An excellent guide to what to take and how to pack it. Jossey-Bass. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. CA. Commons ML. 5. WA. et al. mints. J Am Acad Psychiatry Law 26:21–26. cough drops. Seattle.118 THE PSYCHIATRIST AS EXPERT WITNESS. Berkeley. or throat lozenges. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Ten Speed Press. sample wardrobes and general travel pointers included as well. Magellan’s International.: Expert witness travel dilemmas: a pilot study of billing practices. Berkeley. Revised.) Savage P: The Safe Travel Book. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. with the emphasis on safety and security issues. Celestial Arts Publishing. 1996 . References 1. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. CA. Slater FE. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Although some of the pointers in this chapter probably state the obvious. James E: The Secrets of Simple Packing (VHS videotape). 2003 2. 3. Villard. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Miller PM: Expert witness billing practices revisited: a pilot study of further data. New York. 1988 (Incredibly detailed. I hope that these tips make your travel easier and less surprising.) Gutheil TG. 2001 Simon RI. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. Psychiatric Annals 33:302–306.
D. to require our services in increasing numbers. Simon. If I have made too many assumptions about you. The Psychiatrist in Court: A Survival Guide. the more we serve this valuable and necessary function. On the other hand. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 119 . Although some forces in society. consider reviewing the successor volume to this one. decry the expert witness function and voice arguments for its abolition. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. and helpful testimony. the reader. (American Psychiatric Publishing 2002). M. That book may fill in some of the blanks. As always. which I cowrote with Robert I. I welcome comments and suggestions from readers to correct. if you wish to take your work to the next level. consider first reading the companion volume. effective. including our medical colleagues. The better we are at meeting the courts’ needs with ethical. or have taken too much for granted about your background and experience in any portion of this text. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). the courts will continue.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. expand. from all evidence. or render this text more useful.
This page intentionally left blank .
e. I read it or have the examinee read it at the start of the interview and answer questions. supplied for consideration. and the examinee’s attorney’s attestation that the examinee understands the form (i.. clarification that the forensic examination is not the practice of medicine. is likely to be competent to consent to the interview).Appendix 1 Consent Form for Forensic Examination AFTER PROLONGED ambivalence about use of a consent form I have begun to use the form on the following pages. The main points about the form are the use of basic language. 121 .
Gutheil will explain or has explained to me. Gutheil will explain or has explained to me and I understand that Dr. Gutheil”) I. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. but if I refuse to give an answer or some answers. I understand that Dr. I also agree to give up any rights I have by law to keep him from saying in court what I tell him or what we discuss. I understand and agree that Dr. Gutheil’s questions. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. Gutheil. if needed. 3. During this interview or interviews I will be asked a number of questions about myself. I agree to be interviewed. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. the following: 1. I agree to give up my rights to have Dr. and I understand. Gutheil will not give me any medical or psychiatric treatment. hurt my case.” or “update” interviews of me by Dr. I understand and agree that Dr. Gutheil. Dr. agree to have an examination by Dr. “follow-up. SECOND EDITION Consent for Forensic Examination by Thomas G. Dr. Gutheil may write that down for the record. Thomas Gutheil. I understand and agree to additional repeat.D. the person who has signed at the bottom of this letter. I understand. Dr.122 THE PSYCHIATRIST AS EXPERT WITNESS. Gutheil’s written report or out-loud statements for court may help my case. and I understand that no one can know which one it will be in advance. . M. Gutheil’s interview or interviews. and I understand they will be part of the same examination and will follow all the above rules. in connection with my legal case. Because I am being interviewed in a legal matter. Dr. however. This means that Dr. Gutheil has my permission to talk to people involved in my legal case about the things that he and I discuss and anything he thinks or decides about what we discuss. Gutheil keep secret what I tell him. or have no effect on my case that I can see. most of which will be very personal. nor will he suggest any treatments to me or for me. 2. or out loud in open court in a trial. Dr. Gutheil is a physician and a psychiatrist. I understand that I can take breaks if I want to at any time during Dr. that he is not acting as my physician or psychiatrist in doing this interview or interviews. I also understand that I am not his patient in connection with or because of this interview or interviews. 4. . (“Dr. The examination will be one or more personal interviews. in spoken depositions (where lawyers ask him questions).
to my assessment. he/she appears competent to understand it. of course. Any report in relation to my case will not go to me but will go directly to my attorney. a court officer. Attorney for examinee Print name Date day of .Appendix 1: Consent Form for Forensic Examination 123 5. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. that individual is. 20 . Signed. I certify that I have answered any questions my client asked about the procedure. Gutheil’s retaining attorney. free to show it to me. Dr. or the court as provided by law.
This page intentionally left blank .
and $ per hour for trial. the radical revision presented here has evolved from that in the first edition for the same reasons. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. (d) 125 . Dr. rescheduling is at mutual convenience. and the same due for cancellations that occur less than 72 hours in advance. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition.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). including portal-to-portal local travel (c). Standard Letter of Agreement by Thomas G. Gutheil shall be reimbursed for all time spent on the case. $ for depositions. in addition. (“Dr. M. Gutheil”) 1.D. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. Gutheil. at a rate of $ per hour plus expenses.
leaving the retaining attorney or insurer individually liable for any unpaid balance (m). please return one copy to Dr. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. any existing balance shall also have been paid 3 business days before departure (e). Before such travel is undertaken. and as a condition for its specific to this travel is exbeing undertaken. 4. including travel by first-class conveyance and appropriate lodging if needed. (q) 6. Gutheil by name (h). Gutheil will be unavailable for testimony in person during the month of August (f ). SECOND EDITION per day 2. as an advance against which expenses are billed (p). the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. irrespective of case outcome (j) or defaulted appearances. Signed. For out-of-state travel. and examinations as discovery rules permit. Signature below indicates agreement with all (r) these terms. Gutheil’s FID# is .126 THE PSYCHIATRIST AS EXPERT WITNESS. Dr. Failure to comply may void this agreement except for duties of confidentiality (l). a retainer of $ pected 3 business days in advance. prorated (k). A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. Please note that because of vacation scheduling. 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). 5. Overdue accounts may accrue interest at 6% per annum. The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. For out-of-state evaluations or testimony. materials. 3. (s) Note: Please send all case materials to (address) Date . Dr. made out to Dr. 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). Payment in a timely (g) manner. The retaining attorney understands that my forensic work is not the practice of medicine. is the sole responsibility of the retaining attorney or insurer (i). Gutheil.
If you know when your vacation is. make that clear so that you don’t waste a lot of time swapping checks between payees. can constitute a bias. e. Some experts charge differing rates. You have the right to request timely payment to prevent excessive backbalance buildup. or trial. 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). b. noncontingent. dunned for appropriately earned fees. i. or even retain another expert. it saves everyone time and heartache if you spell it out. This information frees up the attorney to ask for continuance or rescheduling. or trial travel. c. deposition. Some attorneys. but what can I do? That client just won’t honor his or her obligations. based on their training. or a member of a corporation or group practice. Because you will be investing a fair amount in the travel costs. attorneys are sometimes slow to reimburse travel expenses for interview. n. f. this statement makes the attorney agree to that possibility. m. Your fee is. “You’re right. “Consideration” and “agreeing” are trigger words that signal to attorneys. Every agreement must have an exit clause such as this one. j. as it ethically should be. If you are the sole proprietor.” d. deposition. . l. “portal-to-portal. g. k.” 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. will throw up their hands in mock exasperation and say. that does not mean you should not be paid for the work already done. A case decision that goes against the side retaining you is not grounds for nonpayment. thus. this clause makes that explicit. others the same. If the retaining party is relentlessly slow. This is a standard rate of interest on overdue accounts and an incentive for timely payment. Working for the client. For unexplained reasons. To cut through nit-picking. that this is a formal contract. the “clock” starts when you leave your home or office for court and stops when you return to office or home. Doc. You must be free to withdraw from the case if the contract is breached. moreover. If you do withdraw. I recommend asking for this secondary retainer before travel.Appendix 2: Standard Fee Agreement 127 Annotations a. for review. You are initially retained as a consultant. take a videotaped deposition. h. you may decide to withdraw.
Such attorneys may pay the retainer.128 THE PSYCHIATRIST AS EXPERT WITNESS. identifies the attorney’s understanding that this is not the case. alas. and ethical incompatibilities. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. give you no work to do. some experts simply submit additional invoices. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. You are here agreeing to accept signature from a different attorney or a paralegal. others ask for a second retainer (see also Appendix 3 in this volume). You have been sandbagged. Making the retainer nonrefundable tends to eliminate such shenanigans. legal. r. q. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. Moreover. or has left the firm. at no cost to the attorney but at lost time and possible income to you. and. these events do not weaken the contractual ties with the firm. because you did no work. ask for their retainer back. after settling the case. for example. making you ineligible for participation with the other side. When this retainer is depleted. 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. parallel with the forensic consent form in Appendix 1. if the attorney is out of the country. On rare occasions. has handed the case to another attorney. SECOND EDITION o. The wording here. p. The retainer is not only a means of establishing the contract but also an actual advance against expenses. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. s. .
I may require an additional retainer. This retainer will constitute a credit balance until exhausted. consultation with counsel. the hourly 129 .Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. and report preparation. LARRY H. If travel from my office is necessary to perform any of these services.D. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. 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. review of records. psychiatric interview or evaluation. Psychiatric services may include an initial consultation. if it appears that substantial services are yet to be rendered. interviews with family members or other persons. 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. Any credit balance remaining will be refunded upon the termination of my services. M. STRASBURGER. Thereafter.
M. etc. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. expert or otherwise. photocopying. please so indicate by signing this letter and returning it to me with your check for the retainer. All travel shall be by first-class conveyance. Please keep a copy of this letter for your records. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. messenger services. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. SECOND EDITION rates will apply to portal-to-portal travel time. If the foregoing fee basis meets with your approval.D. 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). court rule. literature research. no refund of the retainer deposit will be made. long-distance telephone calls. Time spent in preparing for testimony shall be billed at the hourly rate specified above. American Board of Psychiatry and Neurology Diplomate. court order. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. 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. including secretarial service. 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. Any excess over the retainer balance is due upon receipt.130 THE PSYCHIATRIST AS EXPERT WITNESS. I will send you a monthly statement. the retainer discussed above. as prescribed by statute. Larry H. Diplomate. Nor shall such failure relieve your obligation to have on deposit. Sincerely. Strasburger. setting forth the nature of the services rendered since the prior billing. prior to my testimony. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. and all travel expenses will be reimbursed. postage. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony.
SEAK. 2003 Babitsky S. IN. MA. SEAK. 2007 Babitsky S. 1997 (Though aimed at attorneys. Falmouth. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. SEAK. SEAK. as well as those found in the companion volume. Inevitably. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. this has many useful tips on trial demeanor and related issues.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. The Psychiatrist in Court: A Survival Guide. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. Mangraviti JJ: How to Become a Dangerous Expert Witness. MA. 2008 Ball D: Theater Tips and Strategies for Jury Trials. MA. All. Am J Psychiatry 159:1819–1825. These sources are meant to supplement those provided at the ends of the chapters in this book. 2002 131 . not just psychiatry. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. SEAK. Falmouth. provide at least some information useful for the psychiatric expert.) Binder RL: Liability for the psychiatric expert witness. 1997 Babitsky S. Babitsky S. however. Falmouth. MA. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. 2002 Babitsky S. their quality is variable. Falmouth. 2005 Babitsky S. SEAK. Falmouth. MA. Falmouth. MA. South Bend. National Institute for Trial Advocacy.
New York. Routledge/Taylor & Francis. 2nd Edition. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. J Am Acad Psychiatry Law 29:313–318. J Am Acad Psychiatry Law 34:482–491. Hillsdale. Adams KM.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Mulligan WG. LRP Publications. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. American Psychiatric Publishing. et al: Expert Witnesses: Direct and Cross Examination. New York. Mechanicsburg. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. PA. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. 2006 Feder HA: Succeeding as an Expert Witness. McClure Company. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. NJ. 2008 Rogers R. CO. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. DC. Edited by Jackson R.) Gutheil TG. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. 2003 . Analytic Press.132 THE PSYCHIATRIST AS EXPERT WITNESS. 2002 (This is designed as the successor book to the present one. Danvers.) Gutheil TG. 1993 Dattilio FM. LRP Publications. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. James Publishing. New York. New York. useful for checking credentials. Covise LL. Williams & Wilkins. Tageh Press. New York. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. 2001 Isele WP: Under Oath: Tips for Testifying. 2007 (Focuses specifically on the testimony phase of expert work. MA. PA. Simon RI. Wiley Law. at a more advanced level. 1995 Kwartner PP. New York. MD. Washington. 2007. Baltimore. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. Oxford University Press. 3rd Edition. CA. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. Glenwood Springs. pp 565– 588 McHale MJ. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. American Psychological Association. in Learning Forensic Assessment. Santa Ana. Diamond. Commons ML. Pennsylvania Bar Institute. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington.) Dattilio FM. 1908 (Purely for antiquarians and those interested in a classic from the last century. DC. Horsham. Springer. Guilford Press. 1994 Rabinoff MA. 1993 Gutheil TG. Lippincott.
Anderson RM: Mastering Expert Testimony. DC. J Am Acad Psychiatry Law 35:346–349. Mahwah. links. NJ. MD. Disclosure: This author is a founder. and links.com/forensic/f_psych. Wiley. 2003 Simon RI. Kochansky J: The Complete Psychiatric Examination (videotape). Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. the national forensic psychiatric organization. Gutheil TG.org: Web site of the Program in Psychiatry and the Law. DC. 1997 Younger I: The Art of Cross Examination.html: Another multiple resource site. 2nd Edition. All experts should join.) Simon RI. Harvard Medical School. http://forensic-psych. publishing a vast range of information and offering excellent training courses. articles. Section of Litigation. Washington. and links. 2004 (Study guide available since 2006. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. 1993 Other Media http://www. SEAK. Lightfoot. 2001 . 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony.aapl. 1976 Zobel HB. Washington. Beth Israel-Deaconess Medical Center. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. http://pipatl. Shuman D: Clinical Manual of Psychiatry and Law. American Psychiatric Press.reidpsychiatry.com: A host of resources by two top attorneys.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. and postings. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. Gaynor Publishing. American Bar Association.com: Web site of author’s colleague HJ Bursztajn. with multiple resources.SEAK. 2007 Tsushima WT. DC. discussions. http://www. DC. Washington. MA. American Psychiatric Press. VA. http://www.com: A resource-rich site with articles. New York. Erlbaum. http://tncrimlaw. WW Norton.org: The main Web site for the American Academy of Psychiatry and the Law. Falmouth. A compendium of sources. American Psychiatric Press. Washington. New York.
This page intentionally left blank .
and so on. lab results. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. the practical and relevant definitions are provided. consult your retaining attorney. such as relatives or executors. usually derived from statutes.e. it has been accepted in actual cases that validate its use. Thus in a suicide malpractice case. the plaintiff is the (live) person bringing the suit. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. Competence is decision-specific and usually based on criteria. it is usually “court-tested. Instead. or tradition. the person who committed suicide is the “plaintiff’s decedent.” that is. two or more lawyers. In case of ambiguity. it may consist of records and documents.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. It is not derived from the facts of the specific case at hand. which will live on in perpetuity (i. the criteria for competence to make a will and for competence to stand trial are quite different. case law. on mainframes) and may be used in attempts to impeach the expert at trial. for example.” it is always “competence for what?” The criteria for the different competencies are often distinct.. in which the witness. Boilerplate Standardized legal language.” Deposition Usually believed to be the actual ceremony. in the context of discovery. In reality the actual deposition is the transcript of the deposition. that is simply plugged in to the appropriate place. 135 . Competence The capacity or ability to deal with a certain task. interview data. there is no generic “competence. Decedent The person related to the case who has died. legal documents such as depositions and interrogatories.
Novice experts see this as a misnomer. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. since the goal of the process appears actually to be a decision. See also “Trial by ambush. this limitation constrains the data gathering and the conclusions that may be drawn from the database.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. Depositions. in “trial by ambush” jurisdictions this step is skipped. but a psychiatrist. and various motions accomplish some of this phase. investigating in the field for the court to determine the situation leading to the proceeding (e. and the like. to visit a nursing home where resides a person whose competence is being challenged) and other duties. less ordinary procedures might include covert surveillance of a suspected malingerer. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. disability. The GAL is usually an attorney. interrogatories. The IME may be resisted by some attorneys. may be used as well. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i.e. “Hired gun” A term. after the civil or criminal matter is set in motion. or an attorney-psychiatrist team.136 THE PSYCHIATRIST AS EXPERT WITNESS. The role may include representing an unrepresented party (e.. the fetus in an abortion decision). thus decision maker rather than fact finder. but this is the established term. use of a private investigator to obtain information.g. says what the attorney wants said rather than objective truth). . borrowed from western and noir fiction and film. usually exchanged between opposing attorneys to alert them to your projected opinion. The GAL may be thought of as a kind of utility infielder for the court.” Discovery That early phase of litigation. if so.. challenging the party moving for a particular result. and other medical contexts not limited to psychiatry. IME (independent medical examination) An important part of the discovery process in malpractice. the judge(s) and/or jury. in which information is gathered by the attorneys in order to prepare the case. Finding See “Opinion. Fact finder Practically speaking.g..
and the like. The expert offers an opinion derived from the database and training and experience. Like other sources of bias. the court makes the finding that defines the outcome of the case. Of course. There are several . the “bottom line. but without actually retaining. tell the narrow truth. and let the chips fall where they may.” Nonsexual seduction A metaphoric term for various ways in which a retaining (or would-be retaining) attorney attempts to woo (influence) an expert to see the case from that attorney’s viewpoint. the expert can retreat when in doubt about what is going on or where the inquiry is going. Interrogatories A set of formal. the expert. “Phantom expert” An unethical ploy by some attorneys that invokes the expert’s name and/or reputation as a supposedly retained witness to intimidate or persuade the other side to drop or settle the case. and widely misunderstood by many of those. the witnesses are to testify in court only with testimony that they can swear to. the whole truth. sometimes without even informing. 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. these are prepared jointly by attorney and expert. retreat to the oath. promises of much future work if the opinion in the present case is favorable.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. Negligence In a medicolegal context. the oath is a place of safety to which. One of the most challenging assessments in all of forensic psychiatry. elaborate dinners and entertainments. disliked by almost all parties in a case as well as the general public. when confusion sets in.” of the expert’s efforts. and nothing but the truth. governed by legal criteria that vary by jurisdiction.” In practical terms. The “seduction” may involve flattery. because variations from these answers at trial will be used actively in attempted impeachment. the whole truth is often supplanted by “the admissible truth. In addition. falling below the standard of care in the care rendered in the instant case. its influence should be resisted by the expert. Opinion The final phase. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. See also “Standard of care. experts should review these carefully for accuracy as to their opinions. In a practical sense. the insanity evaluation is retrospective.
. Pro bono Short for pro bono publico (for the public’s good). this term usually refers to service without payment. 2001: “The Phantom Expert. 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.” “reasonable medical (or psychological) probability. a few find ways not to pay you what they owe. See Gutheil et al. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. Appendix 4. the origin of the frequently invoked mantra. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. The expert should be familiar with the relevant local standard and its definition. which broadly applies to information that should not be shared with others in many contexts.” Though most attorneys are responsible. “get the money up front. the standard is usually national but may be local—the “locality rule. thus an attorney or an expert might perform a relevant duty for free. to prevent the experts from hearing other testimony.138 THE PSYCHIATRIST AS EXPERT WITNESS. 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.” “51% certainty. Sequester The separation of witnesses. hearings. particularly experts. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence.” and so on. SECOND EDITION variations on this ploy. Unlike confidentiality. Several jurisdictional variants include “more likely than not. by excluding them from the courtroom. and the like.” “reasonable psychological certainty.” in suggested readings.” An expert testifying about a case must be familiar with the relevant standard. administrative law procedures. privilege is narrowly construed as applying in legal or quasi-legal contexts only.” which the expert must also know. but they cannot by themselves reform the exploitative personality.
In the majority of situations.Glossary 139 Stipulate To concede or agree to a challenged issue. Among other goals such as saving time. etc. “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. Turndown rate The ratio of cases that are. not as a valid method of determining one’s standards of acceptance. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. 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). are sometimes referred to as “third-party cases.” Jurisdictions vary widely as to the applicability of this principle. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. after review. discovery proceedings such as interrogatories. Tarasoff v. guilty. these cases. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. Ultimate issue The final outcome of the legal process: negligent. This rate should be seen as a rough guide. competent. (See also “Opinion. a blow that would ordinarily not be expected to cause harm. such as whether a witness should be accepted as an expert for the court. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert.”) . The image is that of a defendant giving a trivial blow to the head of the plaintiff. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. but the fact finder renders the finding that embodies the “ultimate issue.” Experts should refrain from stating the ultimate issue in their testimony. usually based on criteria. not those that come in for review. depositions. and expert disclosures (see “Disclosure”) inform the other side in advance. accepted as meritorious versus those rejected as invalid.” or “duty to warn third-party cases. The expert proffers an opinion. Because the usual duty of clinicians is to the patient alone. which involve a victim in addition to the treater and patient. but the plaintiff has a thin or “eggshell” skull and is severely injured. insane. The expert has control only over those accepted or rejected.
Waffling An expert’s rambling. a subexamination before or during the trial in which the opposing side attempts to get a sense of what the expert plans to give as testimony. the purpose is to allow preparation of cross-examination or rebuttal. Chapter 4 (reference 11). to say” but more relevantly. evasive testimony designed to avoid answering a question directly or at all. SECOND EDITION Voir dire An expression from the French. literally “to see. in the present context. This may apply to certain communications between expert and retaining attorney. See Gutheil 2007. “The Problem of Evasive Testimony” in Suggested Readings. discursive.140 THE PSYCHIATRIST AS EXPERT WITNESS. Work product A designation of privacy for material that is part of the attorney’s trial strategy. work product occupies a special category of privilege and is usually not discoverable. . There are a number of possible causes.
80 Body language. 52. 4. 59–60 Advances minimum fee. ethical model. 60 Addressing judge at end of testimony. 70 “Attorneys’ Guide to Experts. 116 Alcoholic beverages. 24–29 social relationships with. 37 Alterations ethical. 16 work product privilege. 23–24 Air travel. See also Demeanor 141 . 3–4 Advertising. 47–48 depositions. 4–5. 16 treater bias. 70 merit of retaining attorney. See Clothing. 14 Adversarial context. 77 Bias. 62 needed for forensic functioning. 8. 4–5. consulting with retaining attorney during. 25 Beat the Press (Fulton and Guyant). 74 Accuracy. 16–18. 82 negotiations with retaining attorney. 16 meeting with before deposition. 52. 115 courtroom. 35 Background of expert. 45. 15 Agency relationship. 112 first class. 106 American Psychiatric Association (APA). 115 airline guides. 68–69 Attire at trial. 115 meals. Dress and appearance Attorneys communication with opposing attorneys. xiii. 49. 78. 105–106 Analogies and metaphors. 113 Bipolar disorder. 19 hindsight bias.Index Accessibility airplanes.” 106 Audiotaped interviews. apparent. 121 American Academy of Psychiatry and the Law (AAPL). 100 of expert opinion. 87–88 Admissions. 74. 105–106 American Board of Forensic Examiners. 49. 105 Assumptions. 32. 61 retainers. 63 Blackboard illustrations at trial. 7. 44. 115 Alarm clocks. 30–32 misunderstanding of clinical issues. 65 fighting at depositions. 117 “Alibi” issues. 17 problems of loyalty and identification. 26–28. use of. See Ethics informing of availability as forensic expert. 4. 37–38 Ambivalence. 100–101 Alternative scenarios. 104 Advocate for truth. 18 Billable time. 68 honesty of. 82 of reports. 82–83 Announcement of forensic practice. 9 nonsexual seduction. 106 Beepers at trial. 105–106 loyalty to retaining attorney.
77 Change of opinion. SECOND EDITION Complaint. or experts. 135 . 28 Correction of answers at depositions. 118 Counsel. 33 scheduling. 28–29 Contingent fees. 4 Class action cases. 34 Compound questions at depositions. 48–49. xiii. 66 Concessions at depositions. 33 The court. 81 delaying tactics. 118 Criminal cases capital cases. 64–65 Cough drops or throat lozenges at trial. 77 unpacking at hotel. 38 Conflict of interest. 69 Concentration at depositions. 83 Courtrooms. 5. 99–100 Consent Form for Forensic Examination. 107 Brokering a case when unable to handle it personally. 85–86 Brokerage organizations for expert witnesses. 4. 74 Code language between attorney and expert. 32. 30 validity of case. 113–115 trial appearance. 95 Court reporters. how to handle in written reports. 14 criminal responsibility cases. questions about. 17. 65. 47–48 Competence issues. 77. 58–59 avoidance by attorney. 137 report. 101–102 Crises while testifying at trial. 86–87 Cross-examination. 24. legal. 13–14. 25 Conflicting stories from parties in case. 18–19. 108 Browbeating by retaining attorneys. 73–79. litigants. 83 breaks and recesses during. 81 Communication with opposing attorneys. 85–86 code language between attorney and expert. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). See also Video depositions gazing into the lens. 62. 82 Breaks and recesses depositions. 7–8. example of outline. 33–34 threshold question. review of. 121–123 Constraints on time. 29–40 documents. 19 Capital criminal cases. 34 misunderstood by attorney. 30 Causation. 59–60. 103–108 Camera. 86 Borderline personality disorder (BPD). or data. 16. 23 Clinical material. 14 Carry-on luggage. 70–71. 82 Child abuse issues. 61. 61 trial. 113–114 Case name or citation in written report. money. 116 Coaching. 82 Clothing packing for travel. 99. 116–117 metal detectors at. 32 Building a practice. 44 nonconfidentiality warnings. 71 Candor. See Attorneys Countertransference. 40 Child custody cases. 100 Consultation services. 33–34 merit of attorney. 30–32 “nothing to go on” problem. 48–49 involving the insanity defense. letters to. 97 Case review. 39–40 Cellular telephones. 65–66 Confidentiality breaches as basis for suit.142 THE PSYCHIATRIST AS EXPERT WITNESS.
26 pauses before answering. 115 access to courtroom. 58–60 goals of opposing attorney. vast amounts of now stored online. 83 trial. 97–98 Daubert challenge. 85 quotes. 69–70 videotaping of. 29 Defendant. See also Confidentiality. 64 objections. See Records. 5–6. 135. 73 use during trial. 57–72. 61. Written documentation Doing no harm. 47 nonverbal responses. 68–69 breaks and recesses during. 77–79 Departure from courtroom. See Parties in case Demeanor cross-examination. See Privilege Documents. 58–70. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 60 malpractice suits. 84 pauses before answering. 91–92 privileged information. 64. 59–60. Records leaving behind after trial. 66–67 demeanor of deponent expert. 64 opinions and their bases. 31 Database. 68 final preparation. 68 treatises. 64 language/word choice. 76–77 written documentation to give listing of. 116 Drinking. 63 goals of expert being deposed. 58–60 inappropriate questions. 65 correction of answer. 113–115 trial. 85 Dangerous examinees. 77 unpacking at hotel. 66–67 locking in/limiting expert’s testimony. 4–5. 74 Disclosure issues. 68 fighting by attorneys at. 66–67 143 interruptions. 62–63 reviewing. 79–80 restructuring. 135 admissions in. 38 of experts at depositions. 61 compound questions or answers.Index demeanor during. 80–82 leading questions. 69 Direct examination. Privilege Discovery. 135. 62–63 concentration during. 83–86 “yes” or “no” questions. 65–66 consulting with retaining attorney during. 85 reasons for. 80–82 of examinees during interviews. 114 . 66 concessions. 65 questions and answers. review of. 75 Decision to take case. 64–65 later evidence affecting opinion given at deposition. 117 Drugs. 59 limits of expertise. over-the-counter. 68 of experts at trial. 59–60 assumptions. 92 Disabled individuals access to airplanes. 34 stenographers in. Reports. 8 Double billing. 113 Dress and appearance packing for travel. 135. 57–58 nondiscoverable material. See also Depositions interrogatories. 59 past. 87–88 Depositions. 64 priority. 34. 64–65 curious questions. See also Interviews. 88 trial preparation. 34 assessing. questions about. 70 “gerrymandering” clinical data.
1–3 Experts honesty of. principles of. 28. 17 special expertise of. 115 Flip charts at trial. 67 Expenses. 6. 49–51 examples. 6 High-profile cases. 112 Failure of retaining attorney to pay fee. sample. 100–101 billing. principles of. sample. 47–48 cross-examination. 129–130 standard fee agreement. 15 loyalty to retaining attorney. sample. 26–28 detailed fee agreement. SECOND EDITION Family or friends. deposition and trial. for travel. 37 Eye contact at trial. 33 oaths. 62 Hired guns.144 THE PSYCHIATRIST AS EXPERT WITNESS. 87–88 Evidence. scholars in. 25 Flashlight. 78 Global requests. 49–50 Employment relationship. See Fees. See Countertransference Forensic practice. importance. 113 contact with opposing attorneys. 78 Eating. 61. 52–55 History of expert. 113 Fitness as expert. See Air travel Food. 112–113. Reimbursement for travel Expert witnesses. 38. 125–128 Gestures at trial. 16 turndown rates. See also Conflict of interest advocate for truth model. 96 Harm. See Meals Emotional injury cases. 95–96. 28. 7–8. 30–32 of experts. 80 Flying. 15 remaining neutral. 61. 32 Good writing. 88 Fees. 50–51 interviews. See also Written documentation Forensics. 15 Honesty. 8 Hearsay. 36 “False memory” cases. 60 False allegations. or experts. 13–21. 13–14. 125–128 travel costs. 28. 18–19 honest advocate model. 115–116 Humility factor. 82 Hotels. 25 Honest advocate. 75–79. 2 Forms detailed fee agreement. 129–130 standard fee agreement. 9 Humor. always soliciting. 38 “nothing to go on” problem. See also Ethics of attorneys. 24 Entrance of judge. See also Hired guns definition. 44. 67 marketing. 16 marketing a forensic practice. 1 functions. 82 nonconfidentiality warnings. 28 Fairness. litigants. 75 Ethics. issuing. staying with. 136 spotting the other side’s. 28. 103–108 Forensic reports. 107 new facts at trial. 51–52 Hindsight bias. 14–15 Etiquette at trial. 80 Fabrics. of sexual misconduct. 115 Feedback. 15 altering reports. 5. 25 External consistency of story. 15 social relationships with attorneys. sample. xiii–xiv evidence in. 44 . doing none. ethical model. See Meals Forensic countertransference.
78 Jargon. 34–35 plaintiff. 106 publishing/writing. 107 Interference of attorneys during interviews. 105 Judgment. 36 internal consistency of story. 79–80 Jurisdiction-specific language. 75 informing of availability as forensic expert. 98 145 Laptops. 6–7. 37 interference. 87–88 Lecturing as marketing tool. See Attorneys Leading questions on crossexamination. 86. 48–49. See Hotels Loyalty to retaining attorney. 107 strategies. 49 demeanor of examinee. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). importance of. 137 Insurance challenges. 103–108 announcement of practice. 43–48 creating timelines for. level of scrutiny. 45–46. 34 . 16. 119 Materials. suspending. 95 Likelihood principle. 105 ethics. 116–117 Media coverage and cases. for travel. 36 Interrogatories. 39 Interviews. 75 respect for. 35 order of. 46–48 social service history. 106 listings. review of. 38 emotional injury cases. 2 entrance. 35 retention of records. 115 Lawyers. 40 videotaping or recording. 6 entrance of. 53. 91–92 recording. 79. 47 standard of care. 99. 45 Juries. 49–50 external consistency of story. pros and cons.Index Identification with retaining attorney. 106 Locality rules for standard of care. 97 to the court. 38 note taking. 84 Leaving courtroom. 51–52 Medical records. 57–58. 82 Jet Smart (Fairchild). 106 Letters to attorneys. 34–35 plausibility of case. 18 Integrity. 86 Malingering. 37. 52 Malpractice suits. 37 alternative scenario. 34–38 “alibi” issues. 35 Involuntary gestures at trial. 37–38 criminal responsibility cases. 112 Meals airplane food. 49. 7 Listings as a marketing tool. 36 Internal consistency of story. 36 nonconfidentiality warnings. 112 Judges addressing. 87–88 dismissal by. 107 lecturing. 34 depositions. 83 testimony before. 45 locality rules. 18–19. 45 records. 138 Marketing a forensic practice. 115 during trial. 35 priority. 47 elements of malpractice. 36 presence of attorney. 45 Lodgings. 137 Intervening causes. 16 Insanity defense in criminal cases. 106 specialization.
45. 40. 26–28 Networking. 26–28 fitness as expert. 85 depositions. 47 during interviews. 25 bias. 117 Pretrial conferences. 115 Preexisting illnesses or conditions. 15 Objections depositions. 100–101 Posttraumatic stress disorder. consulting with retaining attorney at. 24 decision to take case. 5. 91–93 Precautions. 52–55 contact with. 118 Metaphors and analogies. 77 keeping notes. 67 National Forensic Center. 117 Metal detectors at courthouses. 82–83 Microphone use at trial. 74. 137 Note taking importance of. See Trial preparation Prescription medications. 58–60 Opposing expert witnesses. while traveling. 70 Medication issues as basis for suit. 68 Pauses before answering cross-examination. 16–18 clinical and forensic issues. 16. 8 Pens and pencils at trial. 50 Preliminary reports. See Parties in case Plausibility of case. 57–58 trial. effect of. 112 Packing for travel. goals of. 38 Nonsexual seduction. 71 Oaths. 13–14. not compromising. 24 request of retaining attorney. 137 depositions. 44 Melatonin. 25 initial contact. 137 Negotiations with retaining attorney. 24–25 timing and scheduling. 39 vulnerability of plaintiff (“thin skull”). 25–26 Priorities. See Emotional injury cases Physicians’ Desk Reference (PDR). 14. 66. 47–48 Outcome of case. 114.146 THE PSYCHIATRIST AS EXPERT WITNESS. 4–5. 82 Mitigation of damages. 57–58 Objectivity. 47–48 plaintiff interviews. 81 Postreport negotiations. 82 interrogatories. 24–29 background of expert. 15. 35. 36 Politeness. 29 fees. use of. 104. See also Web sites storage of past depositions. 97 . 65 work product privilege. 97 Preparation for trial. 64 Peer review for testimony. 34–35 Patience. 30 Occasions. 86 Nonconfidentiality warnings. 69 Plaintiff. 91–92 Privilege. 49–51 Practice pointers. 82. 74 Prior testimony by expert. unfailing. 138. 65. See also Confidentiality deposition. 113–115 Parties in case case name or citation in written report. 26 Opposing attorney. 97 communication with opposing party. 77 Personal injury cases. 88 The Packing Book (Gilford). questions of. 64 interrogatories. See also Marketing a forensic practice New facts at trial. 49–51 Morality. 54. SECOND EDITION Online. 80 Misunderstanding of clinical issues by attorney. 17–18. writing for. 106 Negligence.
17–18 Self-serving behavior. 138 Standard of proof. 26–28. 106 Psychiatric malpractice suits. 34 malpractice cases. 16 Social service history. 131–133 travel books.. See also Court reporters in depositions. 6–7. 46 criminal responsibility cases. 73–74. 82. 92. 138 Rebuttals. 25 Reasonable medical certainty. 82 Silent treatment. See Negotiations with retaining attorney Retention of records. George. 85 Readings. See Oaths . maintaining appropriate. 138 of witnesses. 36. 9. 6 Scheduling issues. 106 Publicity and cases. 18. 66 Simon. 43–45. 91–93 personal conflicts. 24 Publications by expert. negotiations with. 75 Sexual misconduct cases. 51–52 Quoted passages. 70 Skepticism. 113 Relatives. 131–133 travel books. response to. obtaining in advance. 93 Seating at trial. See also Packing for travel Supplementary reports. level of scrutiny. 112 Reports. 100 Recesses. 99 Surprised expert. staying with. 38–39. See also Malpractice suits Suitcases. 112–113 Santayana. 79 Stenographers. 117 Social relationships with attorneys. 14 147 Retaining attorney. 33. 25 Required action. traveling with. Robert I. 64. 95–102. 46–48 medical records. 3 Suicide malpractice cases. 81 Sworn statements. importance of. 49 database of. 48 Sleeping. suggested. review of. 5–6. 108 Roles of expert. 74 Reimbursement for travel. 31–32. 7. 33–34 CATO model for. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 3. 40 Returning calls. nonsexual. 79. 113–114. 44. 15. 40 social service histories. 34 retention of. power of. 40 case review. 6 Specialization. 7. showing toward juries. 28–29 Running shoes. See also Written documentation Reputation of expert. 108 written documentation. 49 Sequestration. 45–46. review of. 54. 97–98 Supporting data for written reports. 104–106. 138 Professional meetings. 112 Respect. 97 Rehearsing testimony. 68 Storytelling. 9. 119 Site visits.Index Pro bono work. reasonable medical certainty. 83 Retainer. xiv. 75–76 Seduction. 54 Resources for suggested readings. 53. 112 Reality-testing. 115 Rental cars. 25–26 as marketing tool. 107 Standard of care. 6. 47 Socratic method. See Breaks and recesses Recorded interviews. 47 Referrals. 35 Records. 107.
44. 77 etiquette at. 112 unpacking. 74. 81–82 priority. 117–118 testimony. 74 rehearsing. 73–74 language/word choice. 77 returning calls. effect of. 37–38 Trial. 80 pretrial conferences. 28–29 Third-party cases. 82. 111–118 billing. 44 Throat lozenges or cough drops at trial. 139 Taxicabs. 73–74 practice sessions. SECOND EDITION cough drops or throat lozenges. 86 cellular telephones. 77. See also Ethics. 112–115 sleeping. 45–46 Types of cases. 112 Traumas. or flip chart. 73–90 beepers/cellular telephones. 76–77 water. 8–9 Treatises. 117 time planning. 13. 75–79. 74 using database during. 19. 118 crises while testifying. 86–87 cross-examination. 39–40 Travel books. importance of. 51 evaluating. 61. 74 Teaching role. 113 examinees. 74. 85–86 conclusion of questioning. 79–80. 35 flying. 75–76 supplies. 8.148 THE PSYCHIATRIST AS EXPERT WITNESS. 76–77. Honesty Turning down cases. versus expert. 116 Treater. 35 keeping track of. 112 Traveling. 25–26 roles of expert. 92. 74 planning. effect on standard of care. marker board. 77 what to bring into court. 80 new facts coming to light. 55. 78 illustrations. 117–118 Trial preparation. 49–51 Tarasoff-type cases. 77 breaks and recesses during. 82–83 lunch during. questions about. 26–28 travel time. 108 wake-up calls. 118 Time creating timelines. See also Cross-examination prior testimony by expert. 43–56 criminal responsibility cases. blackboard. 91–92 seating at. 86 pens and pencils. 64 for interviews. 77. 116 Testimony at trial. bringing into. 82. 34 for depositions. 139 Type of practice expert has. 87–88 dress and appearance. 112–113 travel information. 86. 74 presentation. 85. 77 courtroom. 115–116 meals. 79–80 timing and scheduling tips. 80. 74 pitfalls. 69–70 Treatment recommendations. 112 Travel expenses. 74 Truth telling. 77 pointers. 116–117 microphone use. See Meals packing. 60. 14–15. See Crossexamination demeanor at. 87–88 eye contact. 77–79 departure from courtroom. 80 language/word choice. 115 lodgings. 87 . 48–49 emotional injury cases. 113 Travel service. 78–80 Telephones calls during trial breaks. 80 humor.
70. 100 referrals. 140 examples of. 77 Web sites. example of outline. 108 Work product privilege. 140 Written documentation. 96 rebuttals. money. 104–105. Reports case name or citation. 97 conclusion. 97 opinion. 82–83 149 Word-of-mouth referrals. 100–101 preliminary report. 97 occasions. 99–100 constraints on time. 97–98 headings. 116 Water during air flights. 97 supplementary reports. 51–52 psychiatric malpractice cases. 98–99 postreport negotiations. 107 Weight to be given to on-site psychiatrist’s observations.Index high-profile cases. 70–71 Videotaped interviews. 115 in courtroom during trial. See also Records. 53–54 Wake-up calls. or data. 100–101 trial preparation. 35 Visual aids. 74. how to handle. 79. 117 Word choice depositions. 98 letters to attorneys. 44 White noise. 99 . 74 Voltaire. 139 Understanding of clinical issues. 97–98 jurisdiction-specific language. 97 interviews/items reviewed. 97 principles of good writing.” 2. 97–98 supporting data. 95–102. 100 criminal case. 82 Values. 7 Waffling in answers. 64–65 reports. 98–99 conflicting stories from parties in case. questions of. 67 Video depositions. 4–5. misunderstanding by attorney.” 18–19 “Ultimate issue. 101–102 database listing. 43–48 “Ultimate ethical test.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.