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The Psychiatrist as Expert Witness
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M. Gutheil. Massachusetts Washington.The Psychiatrist as Expert Witness Second Edition Thomas G. DC London. Harvard Medical School Boston.D. England .
Copyright © 2009 American Psychiatric Publishing. Gutheil. and routes of administration is accurate at the time of publication and consistent with standards set by the U. therapeutic standards may change.appi. Includes bibliographical references and index. specific situations may require a specific therapeutic response not included in this book. VA 22209-3901 www. [DNLM: 1. II. Inc. I. Moreover. ALL RIGHTS RESERVED Manufactured in the United States of America on acid-free paper 12 11 10 09 08 5 4 3 2 1 Second Edition Typeset in Adobe’s Optima and Warnock Pro. ISBN 978-1-58562-342-6 (alk. paper) 1. however. The psychiatrist as expert witness / Thomas G. Psychiatrist in court. Evidence. Forensic psychiatry—United States. 2. c1998. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Expert Testimony. W740 G984pf 2009] KF8965.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. American Psychiatric Publishing. 1000 Wilson Boulevard Arlington. and that information concerning drug dosages. p.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. Dr. For these reasons and because human and mechanical errors sometimes occur. Forensic Psychiatry. represent the views and opinions of the individual authors and do not necessarily represent the policies and opinions of APPI or the American Psychiatric Association. cm. Title. Books published by American Psychiatric Publishing. — 2nd ed.S. Thomas G.G8 2009 614′. Inc. Expert—United States. Thomas G. Gutheil. Companion to: The psychiatrist in court / Thomas G. As medical research and practice continue to advance. Food and Drug Administration and the general medical community. Inc.. Gutheil has no competing interests to disclose. Gutheil. 2. schedules.org Library of Congress Cataloging-in-Publication Data Gutheil. .
. truly the wind beneath my wings.To my children and the hope of the future. To Shannon.
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . 9 References . . . . . . . 16 . . . . 4 Confidentiality Warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . 10 2 The Expert’s Ethical Universe. . 1 The Adversarial Context. . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Contents About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. xv 1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . .
Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 The Expert on the Road: Some Travel Tips
for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Gutheil.D. Appelbaum. and a Distinguished Life Fellow of the American Psychiatric Association. and now in its fourth edition. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. the textbook. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. coauthored with Paul S. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center.About the Author Thomas G. M.D. Clinical Handbook of Psychiatry and the Law. Through more than 250 publications and many lectures and seminars in national and international fora.. xi . 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.. Harvard Medical School. he has received local and national writing and teaching awards. Recipient of every major award in the forensic field. received the Manfred S. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. M. he has taught many clinicians about the interfaces between psychiatry and the law.
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interspersed with frenzied bursts of action. This book may provide guidance to you in that activity by drawing on decades of experience in the courtroom and countless beginner’s mistakes to help you avoid the same pitfalls. it provides tedious stretches of waiting and inactivity. Such service presents many stresses and equally many satisfactions. and at the request of past readers of the first edition. this edition also contains things I wish I had said in the first edition. and cases or principles that I have learned about since the first edition. xiii . 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. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. From another perspective.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. an expanded discussion of bias in testimony. In addition. Forensic psychiatry is growing in popularity. other changes in this second edition include: a glossary of useful terms. Often the greatest difficulties in this profession occur at the outset. that book is a good place to warm up. you might consider this book to be next in logical and chronological order to the companion volume in this series. if you feel shaky about the basics. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. 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. besides the requisite updating of references and suggested readings. before experience itself has had the opportunity to provide the most durable and valuable instruction. As an aid to present readers. a model forensic consent form for examination. The Psychiatrist in Court: A Survival Guide. additional illustrative examples. expanded definitions of key concepts. in fact. Moreover. and many a practitioner feels the urge to try out this fascinating realm.
may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. perhaps— dare I say it—interesting and even fun. SECOND EDITION If your early court experience has not been too traumatic. I hope you find this approach useful. and informal discussion in a user-friendly tone replaces scholarly discourse. the novice court goer. hands-on mentoring and guidance that were not readily available in the past. Indeed.D. the later chapters may yet prove useful. drawing on developments subsequent to its first version. kicking and screaming. Thomas G. you. Gutheil. You who are in that position are also my audience.xiv THE PSYCHIATRIST AS EXPERT WITNESS. whenever possible. 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. but choosing to go. This new updated edition. attempts to provide some of that practical. for such readers. . Best wishes for success in your burgeoning career as an expert witness. concrete advice replaces abstract theorizing. in part because they represent material never covered in other sources. M. The more seasoned expert may wish to skim over the more familiar material in the text.
Phillip J. for permission to use some of his material on writing for court. and to Ms.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. Hilliard. M. Ellen Lewy for absolutely indispensable assistance with the manuscript. and Shannon Woolley for their careful review and most helpful critique and comments. Resnick... Stephen Behnke.” James T. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. and Ms. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. xv . Harold Bursztajn.D. Larry Strasburger. I especially thank “Dr. Candace Love of On-Point Research for valued assistance in compiling resources. to Drs. Harvard Medical School. Esq.
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is a psychiatrist who uses particular skills. More narrowly. clinically defined. Indeed. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. 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. an expert witness may review a chart filled with other clinicians’ observations 1 . A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. For example. in contrast the expert is entitled by the role to draw conclusions. the question of what makes an expert witness is more complex. that is. the concept of a psychiatric expert witness. the expert is distinguished from the ordinary or “fact” witness by an essential attribute: the fact witness is limited to testimony about what can be discerned by the five senses by direct observation or experience. In the courtroom setting. the question “What makes an expert?” seems to answer itself: expertise makes the expert. knowing a lot about a certain topic and having extensive experience therein. to provide information and understanding relevant to the legal system’s concerns. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. both clinical and nonclinical. In this book.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. even if those conclusions are based on others’ observations.
. . because what an expert offers is “only” a witness’s opinion. some questions can only be answered by a specialist. For that matter. not the ultimate finding that a judge or jury decides. What I find bemusing is the fact that. are the very same ones who had retained me on a previous case.. and so on. or malingering. from ballistics to the temperature of coffee sold at fast-food franchises. the jury is free to accept or reject the expert’s testimony in whole or in part. As a rule experts should limit themselves to criteria-driven. proclaiming their ultimate faith in the jurors themselves. However.” You want someone who will present in a way that the jurors would be inclined to say this. such as competence or insanity. A leading plaintiffs’ attorney described his need for an expert in this way during a lecture: What I think you want the jury to feel when you have an expert in front of them is: “Gee. opinionphrased descriptions rather than conclusory statements: “in my opinion. Indeed. the court system needs expert witnesses in a burgeoning variety of technical fields. I’d want to be treated by this person because he/she makes sense. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts.2 THE PSYCHIATRIST AS EXPERT WITNESS. Note in regard to the issue of ultimate findings. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. if I had this problem.. at times. I believe this person.I do not want someone who [merely] teaches others about it. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. then the judge or jury. competence. about matters that are beyond lay knowledge or decision making. Under this model. the expert is to educate the retaining attorney. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. I also want someone who has clinical experience and is doing that which he/she is testifying about. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. it could be argued that this is the essential function of the jury system: a social mechanism to decide which side of a case is to be believed. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. incompetent. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. insanity.” This issue is discussed further in later sections of this text. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. that is.
is the adversarial context. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. some points. at family functions. pp. surmounted. a law professor. The highly experienced defense attorney who had retained me was heard to mutter at one point. are so essential to this work that I review them in the following discussions. Most clinical work occurs in the context of the alliance. went even further by listing the functions of the expert as being to 1) tell the story. (2. with Figaro kneeling on stage taking the measurements of his marriage bed. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. 2) make the fact finder want you to win. . the emperor is initially resistant to Mozart’s novel music. however. and 5) argue the case (1). clinical entities. Mozart begins to describe the opening scene of The Marriage of Figaro. The emperor leans forward. and so forth would have accomplished this vital storytelling purpose. or resolved or otherwise put to therapeutic use. causation. and throughout this book. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. syndromes. conflict between the parties. oppositionality. although basic. 4) help the fact finder see the facts. eyes glowing with interest. 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. consider this scene: In the movie Amadeus. and the resulting probabilities. and an adversarial atmosphere are problems to be avoided.Introduction: What Makes an Expert? 3 Another scholar. The power of storytelling was captured in a movie about the career of Mozart. statistics. he has become engrossed in the story. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. “Where are the communion pictures?” Pressed for a less cryptic expression. and the one often most troubling to clinicians. Despite his doubts. Showing pictures of the deceased at communion. In one scene. 3) make sense out of the law. demographics. In this chapter. The foremost of these. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts.
. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. they are not case-related documents and therefore are protected from disclosure. Like other consultants. memoranda. must first ask the question. Although there may be as many views of the patient as there are team members. Unlike the search for consensus in the clinical setting. The question of whom you work for also will alert you to major pitfalls of bias. you usually do not). The usual guiding principle in such determinations is “the best interests of the child. For example. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. Com- . for whom am I working? Your answer will clarify your location within the adversarial framework. files. the retaining attorney or court). The Prime Question Any forensic psychiatrist. in the clinical context. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. such as child custody evaluations. 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. even if it is a compromise (3).e.. render highly complex the question of agency. In other words. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). In medicolegal work. ambivalences may be divided between the two parties in the case rather than felt internally by either. in a forensic setting.” a mandate that may trump other claims on your agency. This specialized topic is beyond the scope of this book. and other papers that the attorney generates in the course of litigation. I define the term work product to include the notes. the court situation is a zero-sum game: one winner. as well as the usual lack of a physicianpatient relationship (i. because that position confers greater neutrality and protection for your efforts. both of which reside in every case and every patient or litigant. you usually work for the patient. Note for completeness that certain forensic contexts. one loser.e.4 THE PSYCHIATRIST AS EXPERT WITNESS. the adversarial context is one of the “givens” in the situation. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. in the forensic setting. the team is expected to reach some sort of consensus about the treatment so that it can move forward in a unified manner to the best possible solution. you work for the consultee (i. In the legal context. two of the victims of this concept are ambivalence and complexity. whether testifying or consulting.
correspondence. your personal attorney can always give you advice on nondiscoverable matters. the forensic perspective almost always extends beyond the individual examinee. or impression. Most attorneys know not to include details of their trial strategy in letters to you. and captured as well in the consent form for forensic examination as Appendix 1. with exceptions. 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. Although therapy usually transpires within the patient’s self-reported data. it should. One trenchant reason for this approach is to obtain corroboration or discorroboration. be carefully documented. litigants. and relevant literature. is private and confidential. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. my own or others’ interview notes. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. Therefore. 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. The issue here is the tension. The term also suggests that an expert’s opinion rests on a base. As we will see later. defendants. Warnings are further discussed in later sections about the interview itself. when in doubt. court-related issues are often matters of public record and public exposure (in open court). with some exceptions. of course. lest they be exposed prematurely to the other side. including records. Admissibility is a selection filter that poses conceptual problems for the novice expert accustomed to seeking all possible input for the care of the patient. The retaining attorney will guide you in this matter. between the “whole truth” and the “admissible truth” (4). of data—facts and clinical verities—rather than on idiosyncratic theory or whim. legal documents. suspects. reports. later addressed. In contrast. . fantasy. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. convicts.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. or basis. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy.
. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. be it moral or monetary. detailed. The witness should be guided by the maxim: when entering the courtroom. In contrast. 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. Yet the court may be driven by principles of fairness. and to maintain an appropriately skeptical posture. Once again.6 THE PSYCHIATRIST AS EXPERT WITNESS. do not demand to be heard: answer all the questions and then stand down when dismissed. hearsay-ridden trail by which it comes to the team’s attention. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. despite the convoluted. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. The Socratic Method Although expert testimony has been compared to teaching. corroboration. experts in court must play by court rules. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. obvious self-contradiction. Because a patient in treatment is willingly coming for help. but the Socratic method is one of the mainstays of courtroom procedure. which preclude admission of certain kinds of data or evidence in the name of justice. though under oath to tell the whole truth. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. or discorroboration . prejudice. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. fundamental fairness. the forensic practitioner is wise to suspect everyone of having some stake in the matter. 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. may be forced into limitations on this promise because of countervailing considerations of precedent. and similar signs. and the like (4). In practical terms the expert witness. absent clear delusions. This painstaking. — George Santayana Unlike the treatment context.. hearsay. always seeking out verification. one is guided by its rules.
regardless of its clinical or empirical validity. reasonable medical probability. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. Note that there may be some jurisdictional variation on this point. and leads physicians of all specialties observing. for example. For most of us. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. Other contextual clues about the hired gun are overly candid advertising in legal media (e. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. Reasonable Medical Certainty Doubt is not a very pleasant condition. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. Although some will cry that there are exceptions. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. makes forensic psychiatrists unpopular with their clinical colleagues. honest experts should avoid these approaches to . — Voltaire The investigative efforts previously implied permit the expert to offer testimony at the requisite standard of proof called reasonable medical certainty (sometimes described as reasonable psychiatric certainty. high-profile insanity cases. forensic work is a sideline to our clinical focus.g. but certainty is absurd. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. we are paid by time criteria. Rather. All psychiatrists. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. or even reasonable psychological certainty). including forensic psychiatrists. As a general rule.Introduction: What Makes an Expert? 7 for all important facts. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). 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. sell time.. ask about the local variant.
if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. Often no absolute standard exists by which to measure opinion testimony.” in this volume). case materials. and you maintain your ethical compass direction. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced.) 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. First. you avoid temptation to skew your opinion. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. see reference 5 and the appendix to reference 3). (By the way. “Developing and Marketing a Forensic Practice. summarized as follows (for more extensive discussion of this point. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. SECOND EDITION finding work. If a clearly meritless case is offered to you for review. and ethical incompatibilities with serving as your patient’s expert. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. because these provide a base of financial stability that enables you to turn down cases. 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. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. and corroborating data. there are significant clinical. reasoning. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. although the clinician is obligated to place the welfare of the patient above other considerations. it is an excellent way to benefit from the teaching of colleagues and to share ideas. 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). legal. There are complexities in this area that should be addressed.8 THE PSYCHIATRIST AS EXPERT WITNESS. For various reasons (5–7). Thus. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration.
Some attorneys report that their only use of experts is to neutralize or cancel out the testimony (or even the mere presence) of the experts on the other side.. The Humility Factor Finally.Introduction: What Makes an Expert? 9 the treater gives in court. Second. Third. thus leaving the jury free to vote its “gut. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. Attorneys seem to display a curious indifference to these incompatibilities. Indeed. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. in contrast. 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. rather than the entire forensic database.” Even when the expert is the only source of data that the jury receives. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. even though this may occur appropriately under legal rules. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination.” Although this last is true in certain respects. treaters called into court may violate the confidentiality of the clinical setting. 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. whether because of simple ignorance of the above distinctions. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). not the engine. Master forensic psychiatrist Robert Simon. the wish to avoid paying expert fees that are usually higher than those of treaters. the expert goes in skeptical. M.” This provocative image should be kept solidly in mind. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. the treater has usually had only the patient’s reports on which to rely. From this viewpoint. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation.D. though essential for therapy. the therapeutic alliance. constitutes a bias for forensic functioning. as noted in the section on malingering above. Early in my career. .
Harv Rev Psychiatry1:4–5. 2007 Barsky AE. Suggested Readings Ackerman MJ. Lippincott. Testifying and Everything Else You Need to Know.10 THE PSYCHIATRIST AS EXPERT WITNESS. Kane AW: Psychological Experts in Divorce. 2003 Strasburger LH. J Am Acad Psychiatry Law 33:55–58. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 1997 Gutheil TG. American Psychiatric Press. MD. Bull Am Acad Psychiatry Law 20:153–162. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry 154:448–456. 7. et al: The “whole truth” vs. 2008 . Hauser MJ. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. 5. 2005 2. 4th Edition. Gutheil TG: Clinical Handbook of Psychiatry and the Law. J Am Acad Psychiatry Law 25:233–247. Baltimore. J Am Acad Psychiatry Law 31:422–427. MD.gmc-uk. Expert’s Quarterly (Winter): 2. 1997 Gutheil TG. August 2. New York. Williams & Wilkins (Wolters Kluwer). 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. DC. 2008. 1998 Gutheil TG. Accessed August 5. 8. Washington. New York.asp.org/guidance/ethical_ guidance/expert_witness_guidance. 3. Guilford Press. Boca Raton. “the admissible truth”: an ethics dilemma for expert witnesses. SECOND EDITION References 1. 1992 Appelbaum PS. Available at: http://www. Baltimore. 2002 Bronstein DA: Law for the Expert Witness. J Am Acad Psychiatry Law 34:14–21. Gould JW: Clinicians in Court: A Guide to Subpoenas. Wiley. 4. Lippincott. 2006 Catto G: Acting as an expert witness. Gutheil TG. Depositions. Personal Injury and Other Civil Actions. 6. Williams & Wilkins. White MS. FL. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Simon RI: Narcissistic dimensions of expert witness practice. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. British Medical Journal 337 (#7664). Lewis Publishers.
Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. 1990 Gutheil TG. Int J Law Psychiatry 13:281–307. Gold LH: Textbook of Forensic Psychiatry. 3rd Edition. Bull Am Acad Psychiatry Law 2:119–132. pp 233–248 Rogers R. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. DC. Bull Am Acad Psychiatry Law 15:217–227. 2004 Slovenko R: On the therapist serving as a witness. American Psychiatric Press. Washington. American Psychiatric Press. Psychiatric Services 52:1526–1527. in The Psychiatrist in the Courtroom. Springer Science+Business Media. 1992 Dietz PE: The forensic psychiatrist of the future. 1994. DC. J Am Acad Psychiatry Law 30:10–13. Washington. 2005 Simon RI: Psychiatry and Law for Clinicians. Behavioral Sciences and the Law 7:145–180. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. 1989 . Analytic Press. NJ. 2001 Quen JM: The psychiatrist as expert witness. Hillsdale. Edited by Quen JM. New York. 2001 Simon RI. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls.
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while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. the ethical expert be13 . particularly an empathically attuned one. their ultimate goals in the legal process. p.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. and its results may harm. First. To prevent such inadvertent abuse or exploitation of the examinee. 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.” (1.. examinees being interviewed by a psychiatrist. S-3) THE EXPERT faces many challenges in forensic work. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. It is a control easily within the reach of every witness—the lever marked “truth.[Finally] I realized that each witness chair comes equipped with a stabilizer control.. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. In this chapter. tend to drift unconsciously into a “therapeutic mode.” They may forget that this encounter is not therapy.. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons.
either your threshold for validity is too high or you need to meet a better class of attorneys. In a not-so-ideal situation. and slams down the telephone. Turndown rates between 10% and 30% are not uncommon. denounces your integrity. the attorney curses your name. if necessary. impugns your ancestors. the turndown rate is the percentage of cases in which. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. 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.. scoffs at your qualifications. indicates the intention of explaining your information to the client. If you take every case you review. (Note that even if you cannot support all of the claims proffered in the case.) For example.g. you decide you cannot support the retaining attorney’s position. You pass this information on to your retaining plaintiff’s attorney. If you turn down most cases you get. this case is over and has been turned down. that the firm will not be using you as an expert. understandably. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. and states. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. you are friends with one of the defendants). this case might be called a defense case because the actions of the defendants are. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. indeed. After settling up any monetary adjustments. For symmetry. thanks you for your help. 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. who—in the ideal situation—accepts this view. Therefore. defensible. you must consider whether your threshold for case validity may be too low. after reviewing. it is also valuable to scrutinize the flip side of this issue: How often do you give the retaining attorney exactly what he or she wants? Does this alert you to possible sources of bias? . Rather. The warnings (carefully documented. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care.14 THE PSYCHIATRIST AS EXPERT WITNESS.
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. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. that is. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. “White on this side. all of which you might accept. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. Consequently. they do represent cases in which you have elected not to participate. Although these referrals are not strictly turndowns. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. inpatient care. guess. the only touchstone is absolute truth as you know it or understand it. One model holds that once the oath is taken. for a particular case outcome). Nevertheless. “What color is that house over there?” The novice answers. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. This model has been called the honest advocate model. An author described the special sensitivity to what one can swear to in this way: You are asked. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. you could receive a number of good cases. speculate about. say.” Your correct answer would be. “White. and the expert becomes the fully neutral observer and reporter. only over those you elect to accept. Partisan pressures from the adversary are put aside.The Expert’s Ethical Universe 15 Note also that you may be in a position to refer cases to colleagues who are known to you as having perspectives different from your own on. and 2) you answer cross-examination truthfully (see the following discussion). all of which you should turn down. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2).” . for example.” Once under oath. and so on. or a number of invalid or meritless cases. In forensic practice. Consequently. you take nothing for granted. This model is sometimes called the advocate for truth model. that position is always acceptable. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. The second model holds that accepting the reality of the adversarial system is simply part of being an expert because that is the arena in which you work.
you owe only serious. Recall that the attorney’s goals are winning the case.16 THE PSYCHIATRIST AS EXPERT WITNESS. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. the skeletons in your closet. and admire him or her.. or make whatever use of your opinion that may be of service. your opinion and its limitations. The attorney is free to find another expert. this identification may compromise your needed objectivity. discussed further in Chapter 3. 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. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. with whom you have done many a previous case together. The varying forms of bias are discussed below. similarly. yours are providing ethical and valid consultation or testimony or both. that is. just what does the expert owe the retaining attorney? Strictly speaking.g. 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. This difference is significant. 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. but the likelihood of identification bias would surely seem to be greater. thus. respect. being retained by an attorney with whom you have had an extensive previous social relationship—constitute a problem? The answer probably depends on the maturity of both parties. committed quality work. settle or drop the case. As you work closely with your attorney. that is not your problem. and what you can and cannot testify to under oath. You do owe it to your attorney to level with him or her about yourself (e. identification with your retaining attorney (discussed more extensively in ). is misreading the nature of the ethical contract between the two parties. under the rubric of loyalty. If the attorney. First. but two dimensions of the relationship pose potential ethical problems. A pitfall in this area might be called forensic countertransference. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. is disappointed that your present opinion is unfavorable. Extending this idea. out of feelings of being loyal to his or her retaining attorney. might extensive socializing with the retaining attorney—or. you may come to like. .” in this volume). “First Principles.
If you are a victim of child molestation. In this model the attorney lavishes praise on the expert. although not common in practice. 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. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment.” Note also that. an attorney. you are expected to manage your countertransference toward the examinee or the examinee’s actions. Similarly. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. promises many future retentions. many expert biases are not detected either by the adversary system or even by the experts themselves. as a clinician. The . of course. 337). you may feel unable to examine objectively a child molester. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. if the countertransference is unmanageable. Somewhat idealistically. (p.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. p. 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. eliminate other subtler biasing factors. 33) However. for instance. this effort may be termed nonsexual seduction. of course. 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. you should refer the case. The situation does reveal some complexity. and may add blandishments such as dinners at expensive restaurants and the like. bias can be exceedingly subtle. 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. There is no shame in this. This neutral position is highly desirable for that reason. The fact that the position is more or less neutral does not.
The less admirable experts. Finally. p. while servants beat him with knotted towels. both pull and push must be resisted. loyalty. expert testimony is like that. and identification as above. having become inappropriately enamored of their opinions rather than of the truth. Such candor may well enhance their credibility. experts can be separated into two categories. if appropriately asked by the other side. the limits of your conclusions. defend those opinions passionately and fiercely on cross-examination. likely be explored. . and their testimony is often unconvincing. Therefore. In the process of cross-examination. the limits of your knowledge. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. 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. the limits of your data.” Your retaining attorney exerts the pull of retention.The Expert’s Ethical Universe 19 TABLE 2–1. the opposing attorney exerts the push of attempted impeachment. the true extent of their opinions. yes. Again. the limits of your credentials. none of this information should be a surprise to your retaining attorney. Gutheil and Simon (6). and the hypothetical situations under which their conclusions would be different. and the limits of your testimony. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. 261. 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.
39 Gutheil TG. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. Bull Am Acad Psychiatry Law 20:141–152. 2. Williams & Wilkins. 2007 Gutheil TG. 7. SECOND EDITION References 1. Washington. Commons ML. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 2004 4. MD. WI. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. 38. 1992 Lynett E. Defense Research Institute. 1992 . Int J Law Psychiatry 13:249–259. 5. J Am Acad Psychiatry Law 32:70–75. American Psychiatric Publishing. Prof Psychol Prac Res 33:307–309. December 2004. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 1990 Brodsky SL. Springer Science & Business Media. New York. 36. objectivity and fair compensation. 2002 Gutheil TG. 1999 Commons ML. 2001 Miller RD: Professional vs personal ethics: methods for system reform. J Psychiatry Law 28:449–457. J Am Acad Psychiatry Law 36:195–200. J Am Acad Psychiatry Law 29:336–339. 6. Baltimore. Simon RI: Avoiding bias in expert testimony.20 THE PSYCHIATRIST AS EXPERT WITNESS. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2008 Katz J: The fallacy of the impartial expert. DC. Weinstock R. Psychiatric Times. Martinez R: Forensic Ethics and the Expert Witness. Gutheil TG: Clinical Handbook of Psychiatry and the Law. pp 33. 2004 Gutheil TG. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. 2002 Candilis PJ. 1983 Appelbaum PS. Bull Am Acad Psychiatry Law 20:163–177. Psychiatric Annals 34:260–270. Baker TO: Operator’s Manual for a Witness Chair. Milwaukee. 2001 Slovenko R: Discrediting the expert witness on account of bias. 8. Gutheil TG: Expert witness perceptions of bias in experts. Miller PM: Withholding. 3. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. Miller PM. J Am Acad Psychiatry Law 27:546–553. 4th Edition.
Prof Psychol Res Prac 34:219–224.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. 1987 Schultz-Ross RA: Ethics and the expert witness. 2005 Rogers R: Ethical dilemmas in forensic evaluations. 1993 Shuman DW. Behavioral Sciences and the Law 5:149–160. Bull Am Acad Psychiatry Law 19:237–248. 1991 . J Am Acad Psychiatry Law 36:167–174. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. J Am Acad Psychiatry Law 33:386–389. Hosp Community Psychiatry 44:388–389. the adversarial system and the voice of reason: reconciling impartiality and advocacy. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. Bull Am Acad Psychiatry Law 17:189–202. Leong GG. Greenberg SA: The expert witness. 1989 Weinstock R.
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your employer is less clear. regardless of what is going on with other experts or treaters. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination.CHAPTER 3 First Principles IN CLINICAL WORK. 23 . or some kind of class action). As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. make recommendations. the patient is your employer. forensic work should thus always begin with the question. discussed in the previous chapter and later in this chapter. Although you are usually working for an attorney. you should—be polite and supportive to your examinee. that attorney’s client. as when a defendant. Your duty is to the person for whom you are working. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. ineffectual testimony. you may or may not owe a separate form of allegiance to that attorney’s client. but you are not required to preview your findings. you still work only for your retaining attorney and. In the forensic relationship. is being treated in a hospital setting. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. and compromised working relationship. you may—indeed. When you examine a plaintiff at a defense attorney’s request. share a copy of your report with the examinee. that person is the recipient of your opinions. considered for examination of competence to stand trial. indirectly. prescribe. However. or perform some other such intervention with him or her. treat. that is usually clear. That relationship is also a source of certain pitfalls of bias.
this approach is self-defeating. though this distinction may be intentionally obscured as a cross-examination tactic.” implying venality and bias. If this issue is in question. The Retaining Attorney’s Request After the first forensic question. “Have you discussed this with your attorney?” This threw me. the topic is extensively discussed in the companion volume. not your personal counsel. How you communicate with your attorney is important from the outset. more likely. and in Appendix 1 (“Consent Form for Forensic Examination”) to that 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. Watch for this ploy. Friendly. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. on purpose—he chose to characterize as “mine. informal discussion should be the format. the term your attorney will be used to refer to the attorney retaining you as an expert. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. 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- . clinical experience. This telephone call is far from a mere administrative formality. Instead. It became clear that the cross-examiner meant my retaining attorney. for whom am I working. and mastery of professional jargon. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. refer to those sources. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. Smith until he or she invites you to call him or her John or Jane. or Ms. In this chapter.24 THE PSYCHIATRIST AS EXPERT WITNESS. which—either by accident or. I was asked. This point came up in an actual cross-examination in a distant state. The Psychiatrist in Court: A Survival Guide.
These issues go beyond mere conflict of interest. Therefore. as indicated by publication. if your aged mother has just died in a nursing home. Your Fitness as an Expert Should you. personally. and so on. experience. Note that your special expertise should exist against a backdrop of your general competence in the field. 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. no matter how unfounded? Do you have a . the hospital. the attorney will not have revealed confidential information (the names) to you. which is usually (but not always) clear-cut. “Look. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. however baseless? Are you now being investigated by the board of registration for some allegation. such cases should be reality-tested for the attorney. 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.. that is. For example.First Principles 25 chiatrist actually has some knowledge about. have you been the defendant in a malpractice suit. 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. what is the psychiatric aspect of this case? A certain percentage of cases will turn out to be ones in which your role is presumed to be that of human lie detector. if you cannot or should not take the case. The Question of Initial Bias The last chapter should raise the question: Is there an element of bias pro or con? Do you know the players. In general. I don’t know a great deal about this specific subject. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. but I am willing to become familiar with the issue”).g. This example is fairly obvious. board certification. The attorney can then take or leave this arrangement. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. I recommend hearing about the broad issues of the case first and only then asking for people’s names. but subtler versions of personal resonance with a case are not uncommon. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e.
In too many medical malpractice cases. are there cases in which you have testified on behalf of the other side. . Finally. the more words you might have to eat on cross-examination. even if the issues are clinically or forensically totally different.26 THE PSYCHIATRIST AS EXPERT WITNESS. unfortunately. Time. Do your best to address this possibility early. in the preceding quote. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. . SECOND EDITION history of problems in the military. Similarly. Fees. and Other Embarrassments A judge in a recent case had this to say about experts: It has been the experience and observation of this court that in all the medical malpractice trials over which it has presided. the court record chidingly notes. for instance. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i.e. for example. contradicts your present position. 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. .. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. attorneys are invisible within the court record. not for their time and clinical expertise. including the speaker. who are the strangers in the courtroom. credentialing problems in the past.. This issue is further discussed later in this chapter. juvenile offenses. they are all corrupt). As is often the case. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment.” when everyone. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. or have been retained by one side more than the other? Review this with the attorney. 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. Thus. Reviewing your own published work in a particular area is a worthwhile part of your preparation. in an economic sense. for the first time while on the witness stand) is a major expert sin. a criminal record (no matter how minor). . Belatedly surprising your attorney (e. knows that it was Smith’s lawyer who was derelict. have taken an opposite position or opinion. “Smith failed to plead . . (1) This quote is interesting from several viewpoints. Second.. you realize that the more you write. If you write a lot. the ultimate beneficiaries.g. 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.
Note also that time spent thinking.” Other witnesses may take this further: “My testimony is not for sale. and hires me anyway. analyzing. Indeed. Don’t charge for a 90-second telephone call confirming the date of . 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.” Yes. Doctor?” The only appropriate answer.” or “Nothing” (and wait for the attorney to crack. Doctor. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. grits his or her teeth. choose a fee that you would not be embarrassed to state. Like the judge previously quoted. since the doctor-patient relationship is not pertinent to the examiner-examinee one.First Principles 27 not the forensic context. planning. I tactfully suggest that. but you are made of finer stuff. I know. ideally delivered in a calm tone of voice and not through clenched teeth. I also recommend not “nickel and diming. attorneys have timers on all their phones and charge by the split second. and organizing your forensic assessment is part of the work. nit pick. or grasps the point. Second. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. only for my time. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. whether for psychotherapy or expert witness time. this usually means that the client has hesitation or resistance about my rates. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. First. allowing me to refer to a junior colleague. Use timers or check your watch at the start and end of a piece of work and write down the time.” or “I am paid by the hour. or challenge the details. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. and try to maintain that rate. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. Therapists who are quite capable of taking an extensive. meaning no offense. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). without children bursting in to share their Nintendo triumphs with you). same as you. this is a pro bono case for you?”). 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. “So. The attorney either takes me up on this offer. is “I am not being paid for my testimony. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis.
the good folks on L. basically consultative services. shame. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. of course. Keep your vacations in mind. If you don’t have enough time. and give the dates to the attorney. at the end of this book. failure to pay is reality. among others. don’t take on the case. are free to employ contingent fees. even if there is). ideally. To novice experts. Ethically speaking.A. Perry Mason. You sell only time. but in my experience. Owen Marshall. 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. Then. SECOND EDITION a deposition. but your consultation must be free of investment in any form in the outcome of the case. for instance. the organization in charge of attorneys’ ethical issues. or for reading a one-paragraph letter. The attorneys. they referred me to small claims court. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. in addition. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. your fee should never be contingent. 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. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). You give only testimony. Refuse any other arrangement. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. or other conflict. some of which never . you are charging for time regardless of the outcome of the case. Urge your attorney to bring up your fees on direct examination to get it out of the way. it is unfair to your attorney. How much work or time should you devote to the case? This depends on your schedule.e. defaulted on payment) by their first attorney. I took my first major “stiffer” to court eventually and received some of my money. That august body opined that this was not an ethical problem but a business issue or a contract issue. 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. when you design your own fee agreement. when asked about your fees on the stand. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. respectively.28 THE PSYCHIATRIST AS EXPERT WITNESS. It should. you can calmly state them without guilt. I reported him to the Massachusetts Board of Bar Overseers..
nontreatment role is clearer.First Principles 29 lead to the courtroom. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. 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. that role would be ethically incompatible with the objective testifying role. working for the attorney or insurer is a far better idea than working for the client alone. often in orange-crate–sized lots. Among other things. . As a rule. The Final Decision Putting together everything that you now know—what you charge. defendant. what your skills or knowledge support. In other cases. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. Do one or the other. You may provide rebuttal material for use by others. for that matter). You simply may be a consultant to the attorney on the merits of the case at the outset. which the attorney decides to forgo because it might have to be supplied to the other side? All these considerations affect not only your clear sense of role but also practical matters such as your time allotment and scheduling. or even witness. how free from bias or conflict the situation is—finally ask. or is the matter likely not to go to trial? Are you going to be a reporter. your consultative. Moreover. how you feel about the attorney. is more accountable. as a professional. someone who has to generate a written report. rarely. what your time permits. Which comes first boils down to a matter of individual preference. that is. The usual next step begins with your receipt of written materials on the case. should you take the case or should you turn it down? The above sequence of queries is part of a negotiating process between you and the attorney or the law firm or even. your attorney. testator. or will your opinion be used by the attorney to strategize without a report. at some point. your first task might be an evaluation of plaintiff. going to testify. You might advise the attorney on how to cross-examine the other side’s experts or litigants. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. You may be needed to evaluate a plaintiff (or a defendant. If you are. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. an individual client. Will you be expected to testify at trial.
his dangerousness was the crucial issue. The point is perhaps an obvious one. you must ask the question. For example. you may be the ninth expert the attorney has consulted. does the attorney have merit? As a rule. the minority are the ones who pose the problems. Scheduling considerations may determine the first task. the next task is clear. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. There is nothing inherently wrong with this desperation. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. even in a consultative sense? In the initial telephone call. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. or a tendency to want to withhold information. for that matter. attorneys would call you only for ironclad solid cases in which they have every confidence. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. 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). Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. I recommend listening for indexes of venality. However.30 THE PSYCHIATRIST AS EXPERT WITNESS. in relation to which. though you would not necessarily know this. the attorney may be employing you in a desperate attempt to clutch at some faint hope. The attorney presented the case to me by telephone. a tendency to assume you will give the “desired” opinion no matter what the material shows. 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. In reality. On perusing . In any case. followed by review of the documentation. stating that the patient’s dangerousness flowed from his being charged with slashing tires. the emotional pressure of the attorney’s desperation should not alter your objectivity. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. of course. including by obtaining expert consultation. a behavior that certainly did not seem all that threatening. Regrettably. 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.
I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. wants to be certain you took note of a particular record entry or deposition statement.” After mulling this over. 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. Most ethical attorneys. Somewhat annoyed. for instance. For example. arguments are the attorney’s attempt to browbeat you into changing your mind.) The second red-flag situation occurs when. You cannot afford to embark on a course of work with someone such as this particular attorney. a document often difficult to unearth but essential to the full evaluation. Expert witness work is hard enough without bad faith. Obviously. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. then you have to expect the same in the future. the only safe course is not to work with that attorney. In the first.First Principles 31 the old record. If he or she withholds or distorts information or lies to you initially. (Note also in this example the value of the previous record. but I emphasized that he and I needed to be clear about the fact that I would testify . A delicate balance must be struck between reasonable flexibility about.” He wondered if that could be equally well expressed by “areas of competence. I told the attorney that she possessed “islands of competence. I decided those were near-enough equivalents. In the second. based on your review of the database. 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). you give your conclusions. based on the patient’s history of significant violence. and the arguments fall into two categories. which happen to be unfavorable to the retaining attorney’s case. the benign category. in a competence assessment of an elderly woman. Another less knowledgeable group of attorneys will be educated by your discussion. the malignant category. will argue with you at this point. the wording in which your opinion is couched and the substantive alteration of your opinion. the attorney wants to be sure you understand the import of certain data. however. however. therefore. and the result may be your withdrawal from the case. faced with this disappointing fact. I telephoned the attorney and demanded to know why he had withheld this history. 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. such pressure should be resisted. after you have given your verbal report. Some attorneys. 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.
the remainder of the opinion. and did not stop until I said. Your request should be global. after discussion I accepted that. This was trivial. to “go over” my report. in an extended phone call. in any way. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. and I accepted. I did not recall because I do not keep that kind of record. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. It is important to ask for everything from the attorney. Agreement was struck. I could not ethically omit it. In another case. One attorney nearly drove me mad by releasing dribs and drabs of material. In yet another case. This suggestion was acceptable. in fact. Although delighted with this level of detail. tactfully. the retaining attorney. under the specious rationale that this method would permit seeing the evolution of my opinion. rather than Volume I.32 THE PSYCHIATRIST AS EXPERT WITNESS. and withdrew from the case. finally. In a variant on this issue. however. in a high-profile. The attorney made a big show of my “concealing” this information. The attorney said he was offended that I should even think he was suggesting omitting something. This is the final opinion I am giving here and now. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. Since only the final (or courtroom) opinion is determinative. I told him. shape or form whatsoever. regardless of what may be precluded by rules of evidence and discovery. an opposing attorney asked me on the stand when I had received various parts of the database. and so on. . The negotiating discussion moved into argument. multimillion-dollar will contest. that since I had read it and thought it relevant. The attorney asked for major cuts or deletions. only the final opinion really matters. wanted. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. He asked me to use the dates of the depositions I had reviewed. Volume II. hung up. even if some material is irrelevant and other parts are inadmissible. 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. “withholding” important data from the jury. I said I would change nothing. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. his senior partner wanted to deemphasize the subject by changing some wording. inclusion of somewhat negative evidence would show objectivity.” The attorney moved on to other matters. moreover. and so on. and testify to if asked. this rationale is especially ill-founded.
directed not toward the patient or examinee but toward the attorney. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. However. First. As you go through the documents. I have found that attorneys for some reason often fail to send the exhibits to depositions. This problem is a variant of a countertransference issue. I find it helpful first to read the complaint so that you know what the basic issues are. Second. check the documents you receive against the cover letter to be sure you have everything you should. you would expect the attorney to accept the limited contribution you may make (if indeed it is limited) and not to attempt to persuade you to amplify or distort your conclusions. it is up to you. In general. even data of dubious validity. for example. Referral to another or an additional expert also may be indicated. Recall that a plaintiff can claim anything at first.” 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. . This ethical dilemma arises when the attorney says. and connections that can be checked against the primary record data and flag those in some way. after your report. 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. but I’d like you to do this evaluation on him anyway. long pages of deposition testimony drone on about the exhibit. facts. you should consider some important points. I think this guy is probably not insane. you are creating a checklist. As you read the complaint. each element of which may be confirmed or disconfirmed by other material in the database. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. “Look. if you will. 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.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. but you can only imagine it because the actual document has not been provided. a situation sometimes occurs that requires special mention. because I’ve got nothing. Forensic countertransference is further discussed in reference 2. look critically for claims. My own approach is as follows. Either undertaking or turning down such a case is a defensible position. feel free to use it if it suits your own preferences. He was photographed doing the crime.
At this point. This permits. for example. no matter how difficult the scheduling might be. Note for completeness that some experts like to start by examining the litigant first. accept it as a limitation.g. then to check the record to determine whether the complaint or issue has any validity. advance screening. The attorneys on either side of the case may limit the interview time available. and selection of a safe environment may be required for examining potentially dangerous examinees. I strongly recommend reading large chunks of material at a single sitting. the depositions or witness reports. The Interview After reading the materials. you may also request that the attorney’s office create the timeline. the witness. makes it harder to focus on hot spots of the case or areas of contradiction in the database. I read the medical records and clinical material or the equivalent. Such an examinee-first approach. third. SECOND EDITION Second.. your interview queries would thus arise directly out of the material. if you have not already done so. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. Some discretion. . however. you are familiar with basic interview approaches). or whoever is involved in the case (presumably. 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. insanity in a criminal context). including your own. the defendant. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. exert every effort through your attorney to obtain enough time to do an adequate examination. cold. perhaps by a paralegal. 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.34 THE PSYCHIATRIST AS EXPERT WITNESS. or with only the complaint reviewed. and next to check the depositions (to observe how people retrospectively reported the facts under oath and explained their rationale) or other documents (such as witness reports to review what others observed). If the appropriate amount of time for your examination cannot be obtained. and be prepared to acknowledge this constraint as a limitation on the data. A laptop computer for this task may be quite helpful. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. you will want to interview the plaintiff. the testator. Given the complexity of many psychiatric malpractice cases.
based on the belief that such an examination can only hurt the case. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. it might be effective and appropriate to examine him or her first. If you are unable to prevent the above intrusions. The occasional plaintiff ’s attorney will openly state that he or she never allows an IME (independent medical examination by an expert) of the client-plaintiff. For example. Examinees commonly play up to the audience or recording device. 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. Verbatim material also can be obtained in this way. 2. “You wouldn’t let me!. as a rule. then to read the database. Inappropriate interruptions and objections. However. For a number of circumstances. exaggerating symptoms. but I strongly recommend opposing their occurrence through your attorney. focusing on making a recording. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- .” My immediate response. inhibit free-ranging inquiry. Jurisdictional rules may make one or all of these procedures mandatory. the expert will receive a request to have an attorney or paralegal present during the interview or. Note that when you are retained by the defense and wish to examine the plaintiff. Not uncommonly. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. The fundamental reasons are as follows: 1. more authentic) responses to your inquiries. when examining for the opposite side of a case. in one case.First Principles 35 If the witness lives locally. 3. an audiotape or videotape of an interview may be constructive. for some experts. the absence of this datum must be factored into the opinion. it is certainly beneficial for teaching and for self-review for quality assurance. and suggestions from the attorney present may contaminate the process. although this irritates some examinees more than writing during the interview. be spared this burden. cuing. presumably. This decision is legitimate but bears consequences. then to examine him or her again to clear up matters raised by the written material.” was appropriately disconcerting. Examinees who must travel to see you should. that side’s attorney may refuse to allow you to do so. alternatively. to have the interview audiotaped or videotaped. however. unobtrusive note taking probably represents the optimum compromise among choices.
a psychiatrist interviewed plaintiffs with an attorney present. 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. Mobil. This subject is addressed extensively elsewhere (3). but the following vignettes make the point clearly: For example. Plausibility The first question to ask of the case. If the attorney attempts in any way to cue or coach the examinee. be it civil or criminal. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. The following are four of the principles that I apply as a generic framework for this purpose. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. behind the examinee). p.. as when the complaint boils down to.. a mass tort in Louisiana. March. ... but wanted them to know that it would not help their case if it came out that they went to the gym to play basketball before they went to the emergency room after their auto accident.g. in the unpublished 1996 case of Lailhengue v. (4. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me.36 THE PSYCHIATRIST AS EXPERT WITNESS. is whether the case is fundamentally plausible.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. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. warn once. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. and I want to sue him.. Do the deviations from standard of care sound hokey. 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. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e..An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. and so on? . 322) To offer a structure for this stage of the inquiry.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. distortion.
1978). the outcome. If the situation did not occur in the manner claimed. about the historic English crime. She had apparently established these referents by calling the office and receiving no answer. MGM/UA. how might it have occurred alternatively? Is there another way of explaining what happened. remember not to offer any treatment or treatment recommendations to your examinee. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. 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. Finally. The phone records aided in challenging the claim by providing a time stamp. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. or for some criminal claims of insanity. or the alleged damages? For example. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. observations. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. the following dialogue occurs between the trial judge and Edward Pierce. even if asked to do so or tempted by medical ne- . The notion of the alternative scenario can be essential for assessing civil claims. however. 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. 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. Alternative Scenario In the film The Great Train Robbery (Crichton M.First Principles 37 “Alibi” Issues or External Consistency Is there material from somewhere else that challenges or refutes the claim? Does the defendant claim to have been totally psychotic and out of control. such as sexual misconduct. he had made several outgoing calls during the time period of the alleged molestation. in a sexual misconduct claim later proven groundless. 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. as well as disability evaluations and similar tasks.
Other warnings. defendant. hurt your case. move on to the substance of your interview. or have no visible effect on your case—only time will tell. Is the patient convincing and plausible? Do the words match the music. restroom) at any time. you are attending to his or her demeanor and its relation to credibility. unlike what you may be familiar with from other doctors or therapists. Do you have any questions about what I have told you so far? If the person has questions. Only when I subsequently read her deposition did her entire . does the content resonate with the affect or is there discontinuity or incongruity? Does the story told in the interview match the remainder of the database? For perspective. please sit down” but before anything substantive has been said: Before we start. recall that anyone can really be fooled. possibly with reporters present. compare the consent form in Appendix 1. As you are interviewing the examinee. there are some things I need to inform you about. The relationship is not a medical one. Her emotions were strong and appropriate to the content. she had plausible answers for all my questions. and you must keep several issues in mind. or in an open courtroom. and if you do not. Fitting Together the Interview Commonly. although I hope you will do so. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. Second. I am entitled to make note of that. SECOND EDITION cessity as treatment issues emerge in the interview. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. what you say may come out in a report. in both civil and criminal cases. but since I can only be useful if I am objective. the other side of the case. and treatment offers are inappropriate. You will be challenged to weave interview data into the totality of the case. if not. in a deposition. you do not have to answer any of my questions. First. what we talk about here is not confidential because I am not your treater. Third. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. Note the fully intentional structural resemblance of the above paragraph to informed consent. and others) as part of your exhaustive review of the database. such as informing the examinee which side has retained you. seem to be called for out of fundamental fairness to your examinee.38 THE PSYCHIATRIST AS EXPERT WITNESS. you will interview the subject (plaintiff. I have been retained by (your side. And finally. that is. my testimony may help your case. answer them as best you can. you can ask for a break (water. the court). as noted early in this text.
but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. Besides serving as a valuable lesson in humility. Jones did Y and the plaintiff did Z. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. but then Dr. it only means that you’re being conned into thinking that you’re not being conned.” In the civil system. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. The plaintiff ’s failure to take those remedial steps does count against him or her. The Causation or Connection Dilemma In many forensic cases. Smith did X at this point. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. For example.First Principles 39 case fall apart. but those efforts may fail or be misdirected and may even make things worse. especially when they themselves. a defendant may be mentally ill. believe deeply in their position. Such distinctions are extremely significant in the hard monetary realities of the legal case. Similarly problematic is the matter of intervening causes: “Dr.e. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. One of the most challenging tasks for the expert is to evaluate serial traumas: to peel apart the sequence of events to determine what the results . because the defendant is not causally responsible for what happened earlier. because of their psychopathology. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. but did that deviation cause the damages. the case was highly instructive: interviewees can be extremely convincing. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. the preexisting condition must be deducted from the damages. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume.. particular plaintiff vulnerability for which the defendant must be held responsible. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. on the other hand.
mistrial claims. DC. American Psychiatric Publishing. and then has other symptoms or more of the same symptoms.40 THE PSYCHIATRIST AS EXPERT WITNESS. . then is sexually abused by a treater. Further research may reveal other promising approaches (6). 2003 3. Washington. if any. Or. Even if a case seems “over. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. and what the exacerbations were of preexisting conditions. 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. they may serve you to recall the case at a later point for research or publication purposes. 2. appeals. SECOND EDITION were of a particular deviation. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. event. If you are discarding case materials. because they would be hard to replace. keep the latter indefinitely. or 2) return the materials to the retaining agency. J Am Acad Psychiatry Law 31:6–9. Kirby v Ahmad. although it has not yet gained broad enough acceptance to be generally admissible as evidence. what the results were of subsequent events. work by Pittman and Orr (5) on differentiating serial trauma shows promise. 2002 Gutheil TG: Reflections on coaching by attorneys. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. all case materials except your reports.” there may be subsequent posttrial motions. 1994 Gutheil TG. and so forth that require revisiting the materials. References 1. with permission. What portion (usually. two major approaches apply: 1) shred or have a reputable company shred the paperwork. Another good rule is to discard. 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. In addition. 63 Ohio Misc 2d 533 at 534. and your interview notes. or incident.
Assessment 4:321–324. New York. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation.First Principles 4. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. New York. 2005 . New York. Families and Physicians Can Cope With Uncertainty. 41 6. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Baltimore. 1990 Suggested Readings Appelbaum PS. Feinbloom RI. Williams CW. in Clinical Assessment of Malingering and Deception. Medical Chances: How Patients. J Am Acad Psychiatry Law 33:158–175. Lippincott. 2008. J Psychiatry Law 24:3–25. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. J Psychiatry Law 21:33–76. Gutheil TG: Clinical Handbook of Psychiatry and the Law. J Am Acad Psychiatry Law 31:232–238. & Hall. 3rd Edition. Brain Injury 11:791–799. Zasler ND. 2003 Group for the Advancement of Psychiatry. 4th Edition. 5. Otto R. Williams & Wilkins. 2007 Borum R. et al: Medical Choices. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Guilford Press. Edited by Rogers R. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Chapman. New York. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. 1991 Lees-Haley PR. MD. 3rd Edition. Guilford Press. 1993 Bursztajn HJ. Hamm RM. Routledge. Bull Am Acad Psychiatry Law 21:37–52. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. 1997 Pittman RK. 1993 Deaton JSD: Toward a critical forensic psychiatry. Brunner/Mazel. et al: Response bias in plaintiffs’ histories.
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Sometimes forgotten is the fore43 . 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. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. More practically. The discussions within this chapter should be considered an introductory survey. Generally. than was actually so before the event in question occurred. In a suicide malpractice case.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. Psychiatric Malpractice Cases One of the most critical issues in psychiatric malpractice is the failure to prove all four elements of malpractice (dereliction of a duty directly causing damages): 1) duty of care. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. and 4) proximate cause. 3) injury to the patient. this bias means that the outcome of an event appears as though it had been far more foreseeable. in this chapter. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. for example (the most common claim against mental health professionals). 2) breach of duty. you already know the person is dead. once you know it has already happened.
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,
or whatever. a post-it. any forensic document) without making some sort of notation of what is significant. you may be tempted to say to yourself. these may not necessarily be the questions you would want to ask. if present. or a folded corner of the page. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter.Types of Typical Cases 47 the tests ordered. as different things may strike you on subsequent review. This notation can be on a separate sheet of paper of similar notes. . Next. There is something of a translation burden on you to read between the lines to determine the issues. 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. an underline. of what this record entry contradicts or supports in the deposition. Because keeping a medical record is itself part of the standard of care. The point may seem obvious. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. plaintiffs. 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. On some occasions. To save yourself reading everything from scratch each time. of your thoughts and reactions. the next time you read this document for deposition or trial may be 7 years away. you are seeking consistency and credibility. you may have to pose your own questions to the parties. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. of any queries or signs of missing data that the record generates to be checked later or elsewhere. as a separate document. “This is so clear and memorable that I will naturally recall it later. for example. make some sort of notation each time you read through the record. When reading the deposition. the expert may draw conclusions from the record alone. of course). a marginal scribble. but depositions consist of attorneys’ questions to various parties. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. and others. through your retaining lawyer’s permission and intercession. or it can be a highlighted entry. defendants. nor are the queries necessarily posed the way you would do so. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. 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.” However. you read the depositions of witnesses. opposing experts. In the process of reading. after the records. I find it valuable to look at the social service history.
credible mental illness (and therefore a likely defense) versus a case with none of these qualities. you can be drawn into the prose by the unfolding drama therein recorded. The truly challenging case lies between these extremes. Of second-rank importance. what do you think about this amazing case. it is inappropriate to call or write directly to the opposing attorney.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. but still relevant. namely. SECOND EDITION Although the more information gathered. Criminal Responsibility Cases In cases of criminal responsibility. remember to consider diminished capacity as an intermediate condition. weighing the logic of the deponent’s responses. 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. On occasion. you are lulled by this informal.48 THE PSYCHIATRIST AS EXPERT WITNESS. litigant. Because of the flow of material and its often fascinating content. friendly approach into letting your guard down and discoursing freely on your opinions. Out of the entire panoply of available material on a criminal responsibility case. is historical material. while reading a deposition. your attorney’s confidential trial strategy. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. To read critically. In those jurisdictions where the issue exists. These would include witness and victim reports. data gathered at the time of the alleged act. you may confront the classical poles of the issue. Doctor. and so on. The appropriate response is. Is this defendant someone who seemed to show . exert the effort to stand back from the process. or expert. For example. I have had opposing attorneys telephone me directly on a “fishing expedition” to see what they could get me to disclose about a case without the trouble and expense of scheduling a deposition. All communications beyond the most mechanistic (giving the opposing attorney’s secretary directions to your office for a deposition) should be channeled through your attorney. eh?” Presumably. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. the more helpful it would be in forming your opinion. and records of any treating clinicians from points close in time to the alleged acts. are the most significant. in my (and almost everyone’s) view. statements of the arresting officers. These unethical conversations usually have an informal tone: “So. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. “I think you should talk to the retaining attorney.
an injury from which he recovered rapidly without lasting effect.8). I find the interview for an emotional injury case to be of primary value. The interview also gives you a chance to assess what might be called a sense of proportion. malingering is especially common and problematic in this assessment. the cause of the crime. In one case. or did he or she have a long history of mental illness with recurring hospitalizations and delusional symptoms that relate directly to the alleged act? Recall that mental illness may bear a wide variety of relationships to crime: a factor in responsibility. an unrelated accompaniment to the crime. although mandatory and irreplaceable. the interview in a criminal responsibility case has the least power of all the data collected. The novice expert should become familiar with useful publications on the subject (7. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. The 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.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. a surprising number of individuals avoid treatment. Finally. as with all forensic evaluations (6). some on . for example. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. All the interview data must be fitted to the totality of the database. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. 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. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. a plaintiff drank from a chemically contaminated bottle and burned his mouth. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. the result of the crime. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. 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. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. and so on.
but they may also be relevant to assessing damages or preexisting conditions. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. SECOND EDITION their own accord and some when given this advice by their attorneys. however. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. preexisting vulnerability. only to find that the goods are legitimately accompanied by a receipt. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. Next to the small table where we were sitting. In this situation. A question you should ask your interviewee is. especially idiosyncratic history. I had to interview him in his home because he claimed to be phobically homebound. History. and startle responses. The response “My attorney told me not to” conveys its own obvious message. The interview took place in his basement recreation room. “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.e. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. This history may represent the plaintiff ’s “thin skull” (i. Finally. in regard to which the defendants must “take the plaintiffs as they find them”). 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. 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. with intrusive flashback memories. Such a search can be embarrassing and humiliating to anyone. I . He claimed to have full-fledged PTSD. but you might discover on questioning the plaintiff that the extreme subsequent trauma and dysfunction flow from a history of sexual abuse or public exposure and humiliation. For example. may be relevant. avoidance. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues.50 THE PSYCHIATRIST AS EXPERT WITNESS. 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 shopper then may sue the store for harassment and consequent emotional harms. as a result of the mugging. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. Not only might these provide a context for the injuries claimed. too.. you again often encounter the previously described problem of factoring out the effects of serial trauma.
therefore. he would have said calmly. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. stoic fisherman. ate like a lumberjack. not totally probative. He gave the impression on interview that if you fired off a . had no signs of trauma whatsoever. you may be asked to review a case that has been extensively covered in the media before you have been retained. He slept like a log. but at incredibly high levels. the nose of the plane fell into the harbor. usually not. fellow passengers. In a famous incident. had been in the front row of seats just behind the break in the plane. There is a fundamental asymmetry about media coverage in almost every case. On detailed examination. he saw a jagged metal edge and below that edge. don’t assume—examine. yet the observation is valid. it turned out. on careful inquiry. I myself jumped in my chair. the former passenger was revealed as a serious. He was strapped into his seat. As the “moving . an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. who. dying. then you get the case. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. One of my cases raised this issue. the case certainly seemed meritorious in theory. to get the actual data. the plaintiff or prosecutor can say anything.Types of Typical Cases knew this because. Boston Harbor with freezing. that is. Initially. High-Profile Cases At one point or another. the alleged malpractice. looking straight down past his toes. 51 This observation was potentially valuable and worth recording. An apartment dweller sued her landlord for failing to respond to the infestation. of course. This case also illustrates the maxim. the jury ultimately decides. without warning. it seemed to me that this incident would induce PTSD in a stone statue. and did not dream. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. unimaginative. A powerful factor in the assessment was a series of photos of the hordes of dead vermin lying about after the apartment in question had been gassed—a picture that was highly convincing. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. On the surface of his story. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic.357 Magnum close to his ear. perhaps so. It is. This passenger. and. or crime has generated publicity first. however. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. injury. which the average member of the public really doesn’t understand.
” In another case. A plaintiff can say to the media.” the attorneys have to create the case from scratch. but so do a number—perhaps a greater number—of venal witnesses. and spill hot coffee over their thighs and sue McDonald’s. SECOND EDITION parties. selling testimony instead of time. the defense attorneys cannot answer the media’s questions. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove.52 THE PSYCHIATRIST AS EXPERT WITNESS. (Chapter 9. you have to be alert to this potential biasing factor and be aware of the media asymmetries. rip off the covers in moving cars. for example. however. Some attorneys may try. 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). until it is proven in a court of law. Even though you may try to tune out the media.” in this volume provides more reliable methods of publicizing your practice.) Another stigma of the hired gun is the counsel of perfection. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. consciously or unconsciously. The defense attorneys must say “no comment” each time. the plaintiff and prosecutor inevitably bias the public’s perception. pushing the case for all it is worth. for example. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. you simply may be reading your newspaper before you are asked to consult on a case. In malpractice cases. lest your review should begin with a one-sided perspective. “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. None of this trumpeting means anything. 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. By doing this. “Developing and Marketing a Forensic Practice. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. Ninety-nine percent of the time. to influence the public powerfully in advance. In short. but this principle may be readily overlooked in a media frenzy. of course. a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. Therefore. in hopes that some of that public will later become jurors. there is no case until it is brought. the standard references the average reasonable . because they don’t want to give away trial strategy.
. Indeed. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. The real issue is: does the standard of care require more. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen. An even more malignant twist is the made-up or artificial standard. the counter to such claims often begins with the phrase “Well. but no one lives real life like that. but malpractice litigation hinges on what is required by the standard of care. “If the care had been adequate.. For example. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner.” This testimony is a classic hired gun claim.” Many “good ideas” theoretically might have contributed to the patient’s care.. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). Some experts believe that physicians are never wrong and always justify whatever the physicians do.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. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. Anyone always could have done more. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. 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. Another variation on this theme is. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. “They (the defendants) should have done more. one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker. Waffles are evasive. it’s a very serious situation. I personally have never heard of or read that standard anywhere. the likely explanation is that the treaterexpert made it up to suit his views of this case. The hired gun often advances a perfectionistic standard as though it were the average. in the real world. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care.
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]. actually. Is that a yes or a no? In fact it is neither—it is a waffle. I am not in a position to tell you that that would be the only choice. but. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. goes all the way to [another city]. there is a lot of despair and a great deal of thought disorganization in the patient. Also note that the failure to consider a valid option indeed may constitute negligence. and that is frequently the hallmark of the hired gun. specifically. a patient had escaped from the hospital.54 THE PSYCHIATRIST AS EXPERT WITNESS. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. then committed suicide. it seems nearly impossible to extract the actual opinion from the thicket of prose. It certainly should have been considered. he gets frightened. an hour before that or less signs a 3-day statement and then just disappears. The entire answer took four full deposition pages. Getting the feel for how the waffle works takes a certain amount of reading of case material. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. an emergency petition ideally would have been. we don’t know whether he stops or doesn’t stop and get [drug] or not. rather than ideally. he has taken in despair 10 lithiums some years back. . reasonably would have been. but that is the answer to a different question. and where I believe the standard of care was breached was that the patient. of unpredictability. In the following example. 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. More to the point. Note how that witness actually avoids responding. a reasonable history. he should have been [that is. that this is a patient with some history of a. Note that this entire chunk of testimony is one run-on sentence. reasonably should have been issued so that the patient could be brought back for reassessment in terms of their thinking and what possessed the patient to leave. That was the answer in toto. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. the mental state and what’s gone on in that patient’s mind is very uncertain. took some blood pressure pills one time in [city].
1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. MD. which makes sure the patient is safe within a structured environment. foresight: the effect of outcome knowledge on judgment under uncertainty. but that doesn’t mean that it’s without supervision. Gutheil TG. 6. Int J Law Psychiatry 6:317–329. 1983 Bursztajn H. 3. Brodsky A. 2002. Int J Law Psychiatry 6:331–350. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. Gutheil TG. Bursztajn H. . we may be dealing with an incompetence issue. Washington. Shuman DW. In fairness. I: malpractice prevention and the use of subjective data. 2008 5. 1991 Fischhoff B: Hindsight. J Exp Psychol 1:288–299. 1975 Tversky A. 4. I would prefer never to assume malice when incompetence would serve as an alternative scenario. 1981 Gutheil TG. 2. Yet. American Psychiatric Press. 7. and that includes they would be safe within or without the community. Conceivably. 3rd Edition. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. we must consider another possibility regarding the above examples. II: clinical uses of legal standards in the interpretation of subjective data. Kahneman D: The framing of decisions and the psychology of choice. Bursztajn H. Finally. Science 211:453–458. Guilford Press. note that one cannot. with impunity. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. Edited by Simon RI. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. for better or for worse. DC. et al: Decision-Making in Psychiatry and Law. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. a trend of such waffling answers in deposition does set off my hired gun detector. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. New York. Baltimore. Williams & Wilkins. References 1.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.
Washington. insanity.” J Am Acad Psychiatry Law 35:112–117. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. 1999 Gutheil TG: Fundamentals of medical record documentation. 2005 Simon RI. 2004 Knoll J. Psychiatry 1:26–28. THE PSYCHIATRIST AS EXPERT WITNESS.56 8. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Legal Studies Forum 9:41–53. DC. 1995 9. DC. 2nd Edition. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. 1992 Gutheil TG: A confusion of tongues: competence. American Psychiatric Press. Law and Human Behavior 19:493– 505. et al: Detection of malingering in competency to stand trial evaluations. Gutheil TG: The problem of evasive testimony: the expert “waffle. Psychiatr Clin North Am 17:439–446. Meloy JR. Viglion DJ. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. psychiatry and the law. 2000 10. Bull Am Acad Psychiatry Law 20:409–418. 1987 11. SECOND EDITION Gothard S. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. American Psychiatric Press. 1993 . J Am Acad Psychiatry Law 34:215–223. Psychiatric Services 50:767–773. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. Bull Am Acad Psychiatry Law 21:23–36. Washington. J Psychiatry Law 28:5–18.
From the viewpoint of the expert.CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. Under some circumstances. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. there is the period known as discovery. 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. 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. preparing for what to expect from the various witnesses and documents. the attorney will likely write the actual prose of the 57 . if any. In both cases. Attorneys probe and define the limits of their cases.
The Psychiatrist in Court: A Survival Guide. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. you do not want to be associated with this attorney. obtaining admissions. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). Do not attempt to decide what is or is not objectionable yourself. read every such document before it is turned in. based on his or her interpretation of the rules of evidence. It is critical that everything in your interrogatory be something that you have already decided you are able to support. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. Opposing attorneys usually follow one of three agendas. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). 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. For example. or some combination of the three: getting your opinion. If you have never given a deposition or you feel a bit shaky about the procedure. it is always unethical. I advise you to withdraw from (or refuse to take) the case. . reasoning that they can always modify their opinions at trial when the right questions are asked. your attorney will advise you as to what requests for information or documents will be objected to or refused. In addition. and painting you into a corner. Depositions The second major area of discovery is the deposition. If you discover this to have occurred. On occasion. the expert. hyperbole hurts you. without retaining you at all. either from clinical evidence or experience or from facts in the database. This approach saves you from having to retract misstatements on cross-examination. even worse.58 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION answers for you. review Chapter 5 in the companion volume to this book. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. the interrogatory is sworn testimony. and an opposing attorney may make a major issue out of any deviation between your trial testimony and what your interrogatory disclosure states that you will say. that is an attorney’s function. guided by your input as to what you expect to testify to at trial. attorneys sometimes ask you for your tax returns of the last 5 years. However.
admissions and concessions of points or . and so on. select rebuttal witnesses. over and above what has been conveyed in reports or interrogatories. a witness’s deposition or medical record that you had not seen before your own deposition. On the other hand. or a full-fledged repeat deposition. as a way of ensuring that your opinions may be brought out at trial. but this is a subintention within the larger discovery framework. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. The attorney can then prepare cross-examination. This ploy usually can be defused by your attorney. a telephone conference. Your crisp and focused answers do not require pouring out every thought you have ever had about the case.Discovery and Depositions 59 Getting Your Opinion First. but not ideally. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. Attorneys also stress that the deposition is their one chance to find out what you have to say. who is in turn obligated to inform the attorney on the other side of your new opinion. the attorney. Just answer the question. the defendant. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. for instance. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. you are ethically obligated to so inform your attorney. during the course of the deposition. In this latter context. and deadlines may dictate this suboptimal condition. the plaintiff. 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). taken before the entire database has been acquired or reviewed by the experts. depositions are occasionally. This discovery function is a completely legitimate task and one with which you should cooperate fully. the police. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. inform his or her experts about facts or issues to pay attention to. to empty your wordhoard. When you subsequently receive. if any. time considerations. and so on. Of course. This information may or may not trigger a supplemental step for you in the form of an interrogatory. 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. however. as the Anglo-Saxons phrased it. the attorney is not averse to discovering precisely those points that will help his or her side of the case. scheduling problems.
however. 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. For example. competence. This procedure elicits sworn testimony. . of course. that justified the admission. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. 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. any contradiction is obviously damaging to your credibility: “You swore this now and that then. A patient was committed because of threats. even though it was the preadmission history. Indeed. raised many possibilities. based on paranoid-sounding content. so that your opinion is constrained or limited in a way that decreases its impact. His mental status was not particularly demonstrative of symptoms of mental illness.. On arrival at the hospital. also under oath. Truth. not the mental status by itself. 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. what are we to believe. At trial. Accuracy addresses the clarity of your vision in relation to the known facts in the case. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. although the history. When you later give testimony in court. your) side of the case. or damages—the entire gamut of forensic possibilities.e. Your Goals for the Deposition One scholar has described the witness’s goals as truth. insanity. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. The points may relate to guilt.60 THE PSYCHIATRIST AS EXPERT WITNESS. In a wrongful commitment case against the hospital. and accuracy (3). much was made of this testimony. under oath. negligence. he denied to the admitting physician that he had any violent intent. You are locked in to that testimony. The answer was no. is the final standard. that is. conceptually. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. of course. SECOND EDITION views detrimental to the other (i. fairness. to kill coworkers.
using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. intense concentration sustained over hours is hard work. hoping to hit the key points if only by accident. you must be rested. as noted above. 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. and vigilant at all times. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. Rather. aware of the serious weakness of the substantive aspects of their case. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. focused. try to eliminate distractions. Still others. Prepare for this. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. 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. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. alert. Get enough sleep the night before the deposition. your opinions (and their limitations). and your planned testimony. The expert should clear a full day for the deposition to be on the safe side. several factors urge clearing substantial blocks of time for deposition.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. A small number of attorneys attempt to wear down the expert by sheer passage of time. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). this also takes a toll on the court reporter. More details about this necessity are discussed later in this chapter. if more time turns out to be required. however. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. another deposition date can be scheduled. it is an essential part of the evolution of a case and thus your role in it. Unfortunately. you were probably not paying sufficiently close attention. looking for dirt before even addressing the instant case. . will spend hours inching through the expert’s credentials. Occasionally. To do your job. If you do not go home after a deposition feeling tired and drained. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration.
The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. ask to hear it again or have it read back. no. 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. Question: So. warning. his act could . in the following example. to be an appropriate way of determining competence in the clinical situation. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. First. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. or you knew and didn’t act. therefore. If there is the slightest doubt.] Answer (by case manager): I don’t think I would agree with that. are you seriously telling this court that that sentence [quoted from an article] is one which instructs the forensic witness and the medical health [sic] treater that. Note. “The patient gave no sign. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. or evidence of a propensity for violence.62 THE PSYCHIATRIST AS EXPERT WITNESS. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. can we agree that on [date of murder] you did not have a clear understanding of [patient’s] propensity for violence? [Questioner assumes there was a propensity in the patient—a hindsight view—hence. ask that it be broken down. let me answer all three components. the case manager’s lack of understanding might be negligent. so you were negligent. I am serious. A more effective answer might have been. And the third part of your question is. they have to enter into a dialogue with their patient. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. yes. I don’t—I wouldn’t agree with you there. so you were negligent. If the question is compound or complex. it is serious. 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. in order to determine competence. Question (attorney for staff member): Knowing what we know today. Second. yes. On rare occasions. you can give a useful compound answer to a compound question. but it is quite risky and may compromise clarity. which I codirect.
But this witness has set a standard for herself: “hope for truth. the totality of symptoms did so). did not constitute sufficient evidence of bipolar disorder (although. or did you make that entry based on information given to you by others? [These are. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. moreover. the answer. [This is not an answer to the question.Discovery and Depositions 63 neither be foreseen nor be prevented. For example. and grandiosity. the witness should decline to answer yes or no to such a question. a patient with apparent bipolar disorder challenged an involuntary commitment. “I don’t recall. challenge. In addition. that the witness specifically remembers such a detail. the patient manifested rapid press of speech.”] Question: Is that the procedure in which you make notes. Her answer ignores the fact that the record does not always note the source of the clinical data. any good nurse does that. of course. 5 years and hundreds of patients later. [The witness sets her own standard of care. not the only possibilities. you write down what you have observed. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. I sure hope I saw him because I usually don’t write things unless they are true.” would be perfectly okay. not what others have told you? [The attorney tightens that very screw. Gee. Clinical data also can be cut into discrete segments to attempt to refute.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. Question: Did you observe [patient] attending those meetings.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. .] Answer: Right. paranoia. Note that an excellent and self-contained answer to such a question or line of questions is. no. The deposing attorney inquired. making a chart entry based on what you were told by other staff —for example. right. “In a vacuum. When seen. social obnoxiousness in various ways. or weaken certain conclusions (4). of course. testifying 5 years after a suicide.] Answer: Gee.] Yet another deposition tactic is what I call gerrymandering the data. which might be used against her nursing colleagues. and too extensive an answer to deposition questions. vulgarity. in a vacuum. not the individual element. It is unlikely. reveals the hazards of too effusive. too discursive. The following excerpt of testimony given by a naive fact witness. Obviously. from a previous shift—is universal practice.
Also remember to listen carefully to the objection. and the like. the trap of double negatives in the questions. nods. drugs. shrugs. lack of time frame. incomprehensible questions. but sometimes they do so deliberately to distract you or to break your concentration. immediately correct .” reflect a moment on why the time frame might be important in relation to that particular question. in the belief that your pause means you have finished. 3. 2. Some key points made in that volume are the hazards of guessing. usually accidentally. SECOND EDITION The Pregnant Pause After the question is asked. insist on a time frame. each speaker should finish before the other begins. “Objection. Attorneys may sometimes interrupt your answer. not your glib response in the deposition room. not only for the spelling of your name but for contact after the deposition for questions. a garbled record from too-fast speech wastes everyone’s time and money. and so on. review the corresponding discussions in the companion volume. or you might infer something useful from the type of objection posed. Spell unusual names. Giving the stenographer your business card before the deposition is a highly useful courtesy. because the stenographer cannot record winks. They are. and carefully for the stenographer. pause a moment. Recall that the written transcript is the durable version of the deposition. Other useful basic tips include the following: 1.) Your answers must be verbal and aloud. Overlapping dialogue is awkward or impossible for the reporter. If any of these summary phrases do not trigger recognition. Be careful about overlapping speech. your attorney may be trying to call your attention to something. whose written record will be the actual form of the deposition in all future contexts. Insist on finishing your answer to your satisfaction. The Psychiatrist in Court: A Survival Guide.” “no.” “I don’t know. and other myoclonic responses. If your attorney says. (See also Chapter 5 in the companion volume. If your concentration slips and you give an answer that you later believe was wrong or even misleading. who cannot take down two simultaneous conversations and produce a clear record. terms. clearly. instruct you not to answer. “yes. The pause also allows other attorneys to object. Correct any errors.” “I don’t recall. in essence. and the importance of speaking slowly. in effect.64 THE PSYCHIATRIST AS EXPERT WITNESS. Answers Deposition answers are drawn from a surprisingly shallow pool. Pausing allows you to replay the question in your head and to think about your answer. Speak slower than usual. shakes. Do not tolerate this interruption.” or a short narrative response that contains the question so that the response. cannot be quoted out of context.
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.. First. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. When in doubt.. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you.” (3. No. Therefore. (The question of coaching is more extensively addressed elsewhere [5. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. would you agree that a patient’s sui- . 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.6]. In a suicide malpractice case. the deposition may be paused for that consultation. but leaving the error on the record means having to retract it on cross-examination. Two points about this problem should be kept in mind.) When to Throw It Away In my consultative experience. . pp. . this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. Therefore. However. exercise this option. To err is human. .Discovery and Depositions 65 it on the record. . I tell a lie. this may be phrased as when to throw away the “throwaway” questions.To tell the truth. Second.. . if you are concerned specifically about a matter of privilege that may govern your answer. . Therefore. for example. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. he could accurately answer in the negative. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching.” Of course. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. the deposing attorney may ask. “Doctor. because no two fractures are exactly alike.If I said that. the entire deposition takes place under oath and under penalty of perjury. where you are retained by the defense. the doctor might answer: “Well. 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. but I can’t say that any of them were [sic] precisely like this one. As a deponent witness.
” Wait to relax only after the stenographer has put away the machinery. may attempt to get some off-the-record insight literally in the doorway. have some water. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. an attorney. and move on. When the answer is that clear.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. on the record. in the colorful argot of the national pastime. Quibbling over the possible exceptions or equivocating in some way helps no one. having inexplicably found his or her second wind. just one more thing”—contain vital material. Doctor. an attorney may look ostentatiously at his or her watch and say. “Just a few more questions. Subjected to the silent treatment. and we’ll be done. wait until it gets ridiculous. 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. Occasionally. With an encouraging smile the attorney looks expectantly at you without saying anything.66 THE PSYCHIATRIST AS EXPERT WITNESS. The attorney asks a question. thinking about dinner and work to do later. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. now begins to fire rapidly at the witness. but you know enough not to get involved in that “thing. make the concession. not unlike some patients in psychotherapy whose doorway pauses—“oh. Your retaining attorney may also get into the act. throw it away. but the lack of the note did not cause the suicide. influenced by the TV show Columbo. still. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. check your watch. by the way. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. and you answer it. the novice witness relaxes and loses focus. is “It ain’t over till it’s over. It is not the defendant’s negligence that is at stake in this situation but your credibility. Remember that the failure to write something down may be below the standard of care.” At that point. . The moral here. of course.
. the subject matter. “I don’t know” or “I don’t remember” is a fully appropriate answer.and the answer to that question is . 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. This method sometimes involves carefully answering the question that the attorney should have asked. No expert is expected to be an expert in everything or to remember everything. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. 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. but I’m in favor of sensitivity. rather than asking about. Note how the first question was a total loss and had to be rejected completely.. that we can’t isolate ourselves with notions of “I’m not part of our society. make sure you include the question in your answer on those occasions so that no one is misled. using categorization. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man].” ..” Avoid the narcissistic trap of “I can answer anything. Some questions are curious because the attorney appears to be flailing at. if you’re grossly suicidal and you have access to guns and drugs and alcohol. “I understand you to be asking me. therefore.. and this response is perfectly appropriate. For example. The only valid answer is that those questions are outside your area of expertise. as is “That is outside my area of expertise. they often fail to realize that they do not have forensic evidence to back up those notions.” in a manner to ignore those feelings. I find your question a little confusing. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can. and answer that part...Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. 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 Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas.
Your attitude should convey. after which the expert examines for evidence either way. no matter how generic or basic it may seem. and demonstrate other regressive behavior. Because the stenographer (and not the jury) is your audience. This fight is an attorney-to-attorney matter. stay seated and keep quiet until it is over. Do not do anything. occurs rarely may throw the novice witness: a roaring fight between attorneys. authentic or merely theatrical. clear. you assumed it was a medical record in good faith. heretofore quiet and almost appearing bored by the proceedings. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. you will be addressing him or her in slow. more technical. firm. for example. That is as it should be. mediate the debate.” This assumption is dangerous because it suggests bias. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. this implies arranging coverage for your patients should a crisis occur. “Did you make any assumptions about the case before you began?” You may be tempted to say. that is not your problem. unfailingly polite. As noted. should that become necessary.68 THE PSYCHIATRIST AS EXPERT WITNESS. .” as it were). A situation that. “Well. and so on. Clinicians may be tempted to call on their clinical skills to temper violence. more pedantic. fortunately. The only vital difference is the way in which you speak. so I assumed that they knew what they were doing. There are good hospitals out there. and far less friendly and instructional than it would to a jury. stand up in their chairs. If the admission note turns out to be a forgery.” This position of timeless patience puts the onus appropriately on the attorney to move things along. The only assumption you should make is good faith. scream at each other. and you might well know some of them. more boring. threaten to go before the judge to plead their points. In the specific malpractice context. 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. I know that’s a good hospital. the next question will be coming your way. never losing your cool. The two sides. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. but your belief might interfere with your detection of negligence in this case. careful speech that may be more formal. meaning that you assume that the documents are what they seem to be. “I can continue until midnight. In one deposition. When everyone is through. the parties are really the parties in the case. or facilitate calm negotiation. you will make it worse. clear. Assumptions The deposing attorney may ask.
of course. Most modern books and articles have multiple authors or editors. For example. these publications are not uniform in authoritativeness. merely official. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. the parallel assumption would be “Sane. Novice experts. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. you may be asked to supply the names of authoritative texts yourself. Be sure to maintain a sense of proportion about these references and their utility. Some experts respond that the DSMs are not authoritative. chapter. After reading the entry carefully. no one wrote a previously published book or article with the exact case in mind in which you are involved. including those parts which conflict with your testimony. to make an informal clinical diagnosis. but ask to be shown to which one the attorney is referring. Alternatively. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. Remember. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: .Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. or article) is authoritative in the field or in the subject of the current case. you cannot take the position that no text is authoritative. desperate for stable islands of consensus in the tossing seas of uncertainty. competent. In one limited sense. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. the examining attorney may ask you if a specific text (book. may imitate the attorneys by overvaluing these texts and ignoring their limits. inescapably. the disclaimer at the front disavows its applicability in many forensic contexts. note whether you agree or disagree in general with the stated points. In a criminal context. and DSM gives the formal criteria for diagnoses. both sources are “authoritative”: PDR contains the actual package insert information about drugs. But both. have their limits. this is a matter of risk management for the pharmaceutical companies.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. then. Moreover.” Learned Treatises In the course of a deposition. Comparably. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. and innocent until proven otherwise. Attorneys tend to use the latest editions of the Physicians’ Desk Reference (PDR) and Diagnostic and Statistical Manual of Mental Disorders (DSM) in a markedly concrete and reified manner. However. yet the clinical diagnosis and treatment still may meet the standard of care.
Arrange to do so with the attorney sufficiently early.. In addition. Any notes. and you may have to furnish copies to opposing counsel. 571) Final Predeposition Preparations Before the actual deposition. Give both (or several) points of view if they exist. in the video deposition. The usual audience of the standard deposition is the stenographer. (8. SECOND EDITION When quoting the literature.e. summaries. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. remember to go to bed early. The latter may be privileged.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. especially if details remain unclear or if over time the clinical condition has changed or evolved. If you are really unsure about something. check the accuracy of any numbers (9). review your files as diligently as if you were going to trial. you also may want to meet one more time with the attorney’s client before the deposition. Frankly admit if anything has been removed from your file. police reports. Under some circumstances. it is wise to review—and if necessary. You must exercise some care in these discussions as they may be discoverable.70 THE PSYCHIATRIST AS EXPERT WITNESS. rehearse—the details of the links between your conclusions and the facts. you will need to review a wide array of information. In some cases. the camera is . actually visiting a site may be important. consult your own attorney. Also. statements. some discuss details of trial strategy in their letters to you. let the attorneys determine whether it is discoverable. Meet with the attorney and review the issues. In contrast.. laboratory values. and so on so that you can buttress all your conclusions with specific elements from the database. Your attorney then can communicate with the retaining attorney. record notes. Above all. The Video Deposition A modern wrinkle on the procedure is the video deposition. or “cheat sheets” (i. Obviously. but this is not your problem. whose transcript will endure and be used for any impeachment possible. Many attorneys anticipate this problem and send only bland correspondence. p.. well before the deposition. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. this conversation is protected.. outlines or summaries for quick reference) may be subject to subpoena for the deposition. be balanced and accurate.
read it very carefully. the expert may wish to retain a copy for teaching purposes after the case is over. and pedantic level of the ordinary deposition but in basic. The video deposition presents a number of possible pitfalls. the retaining attorney.Discovery and Depositions 71 the audience. When you receive the deposition transcript. you are under constant scrutiny. the only vehicle) for the expert’s testimony. not at the ponderous. . At least one copy of the transcript is returned either to the court reporter. instead of—your personal appearance in court. but errors can creep in. In the current economy. at times. or the deposing attorney for distribution to the parties. but under some circumstances the notarization can be waived. who may see the video displayed in addition to—or. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. checking for errors and typos. Recall that omission of a comma.” and rendering. Most court reporters are extremely good at their jobs. As in the trial described in the next chapter. representing the jury. After the Deposition Always ask to read and sign the deposition.” 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. If the expert is known to be unavailable for the trial dates. of the word “not. My personal favorite is when the phrase. this time in a permanent record. the deponent expert should always ask for a personal copy to review in preparation for trial. If the deposition has been particularly instructive or noteworthy. 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. and the deponent signs under pains and penalties of perjury. juror-friendly. and must beware of inappropriate gestures and personal bodily attentions. “It’s an us-and-them situation” was rendered “It’s an S and M situation. the video may also serve as the vehicle (in this case. jargon-free. trial-suited English. “irresponsible” as “responsible” are small changes with profound results. careful. you should try to direct your gaze toward the camera lens. say. This approach risks eventually being papered out of house and home. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. Remember to keep your language level.
SEAK. Lippincott. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. 2008 Rice B: Malpractice: how to survive a deposition. MA. Med Econ 82:45–48. 1996 2. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. The Practical Lawyer 39:55–63. J Am Acad Psychiatry Law 34:18–22. 6. 6th Edition. Falmouth. 1999 Babitsky S. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). Bull Am Acad Psychiatry Law 10:17–27. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 9. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Mills MJ: Legal conceptualization. J Am Acad Psychiatry Law 31:6–9. Williams & Wilkins. Baltimore. legal fictions. 36. Simon RI. Defense Research Institute.72 THE PSYCHIATRIST AS EXPERT WITNESS. Baltimore. 8. Suggested Readings Babitsky S. 39–40. Falmouth. 2007 Gutheil TG: Reflections on coaching by attorneys. 2005 Suplee DR. MA. 5. WI. SEAK. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. National Institute for Trial Advocacy. 1983 Gutheil TG. Woodruff MS: Deposing experts. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. MD. J Am Acad Psychiatry Law 29:313–318. MD. 1982 Gutheil TG. SECOND EDITION References 1. IN. South Bend. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 2006 Gutheil TG. Current Psychiatry 7: 25–28. Willliams & Wilkins. Gutheil TG. 2001 Baker TO: Operator’s Manual for a Witness Chair. 1993 Malone DM. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Defense Counsel Journal 4:174–179. 7. Child Abuse Negl 17:571–572. Vols 1 and 2. 2003 Kaplan HI. Simon RI. 4. 3. The Practical Lawyer 33:69– 78. 1987 . Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Milwaukee.
1. If you are testifying away from home. If you are uncertain about the guidelines for trial preparation. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. and they are the subject of this chapter. pled out. 73 . and devising means of locating key passages in the database quickly. review that chapter. 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. settled. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. trials do come around every so often. Planning. 2. For the expert witness. 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. examining the companion volume. Preparation. Nevertheless. I review some of the basic courtroom procedures. is recommended as an orientation.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. In this chapter. For experts who have spent little or no time in court. I addressed the six Ps of trial preparation. the same six Ps should be reviewed but with a slightly different emphasis. The Psychiatrist in Court: A Survival Guide. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. review Chapter 10 (“The Expert on the Road”) in this volume before setting out.
Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. . Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Most of these matters are best handled on direct examination where some measure of control can be exercised. what previous testimony has been given. location of restrooms. the relevant literature. you need to know through choice and practice how you will convey your opinion to the jury. Confirm travel arrangements and other details. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). 6. and select useful examples from your experience to make central points.74 THE PSYCHIATRIST AS EXPERT WITNESS. parking arrangements. You should rehearse ways of expressing information to the jury. Pitfalls. what the judge is like. 5. Insist on this conference if the attorney is equivocal or resistant to the idea. the contradictory evidence. the floor of the courthouse on which the courtroom is located. On cross-examination. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. and the expected cross-examination. It is not enough to know the database. Clarify and confirm your travel arrangements. practice sketching any visual aids you will need for the courtroom blackboard. and the data relevant to the other side of the case. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. 4. You also need to hear how the trial is going. and what the emotional climate of the courtroom is. 7. 3. Presentation. Practice. The pretrial conference is probably one of the most important stages of preparation for trial. and your past experiences. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. your publications (especially those relevant to this case). Review the weaknesses in your opinion. Consider taking a taxicab to local courts to avoid parking hassles. the unknown issues. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. 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. and all such details. If you have a disability. Pretrial conference. Define the limits of your testimony. Even more distressing. Clarify in your own mind how you plan to deal with questions about your fees. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. the location of the trial. Build in contingency plans for the possibility that the trial extends into the next day at least.
the best approach is to exercise care about the methods used to reach conclusions. Some scholars recommend coming in early or during a lunch break when the court is empty to sit in the witness chair before you actually go on. may occur prior to trial (occasionally. Before going into the courtroom. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. experts are not allowed to be present in court for the testimony of any other witnesses. particularly experts.S. Once in the courtroom. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. Regrettably. sit down. much valuable information can be gained and the tone of the room determined. 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. Such a hearing. Supreme Court case. named for the plaintiff in an important U. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well.e. Practical Matters Preparing to Go On Many courts sequester witnesses. this kind of potentially valuable hearing and screening device can also be abused (2). rise for the judge’s entrance. where the jury will be and what . its methodologic reliability. From the viewpoint of the expert. 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. which are sometimes in obscure locations in older courthouses. and whether the testimony will fulfill the legally required expert function in the court. and to ensure that recognized approaches to the subject matter are chosen. but if you are the only one standing. that is. The topic requires more extensive discussion (1). to be able to articulate the bases and reasoning behind those conclusions. you will find it valuable to locate the restrooms and telephones. Doing so is supposed to decrease anxiety and give you a feel for the setting (i.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. When you are allowed to hear the testimony of other witnesses. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1).. Wait in the public seats until actually called to the stand.
only a copy of the expert report that is already in evidence or only a curriculum vitae). Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. On the other hand. and 3) you may become lost in excessive data. The expert appears more confident and knowledgeable about the case. in an often extensive chart or deposition. Each preference has its pros and cons. What to Bring Experts and their retaining attorneys vary in whether they prefer. My own preference is to strip down what is brought. 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 attorneys will have it). or your own table of contents devised for more extensive documents. 2) as noted. Recall that in almost every case. a particular citation is.76 THE PSYCHIATRIST AS EXPERT WITNESS. if needed. having the whole database on the stand permits greater support of your testimony with specific data from the documents. 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). yellow self-stick notes. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. while the experts are testifying. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. because his or her opinion is being given from memory. The expert should determine which of these two approaches is more suitable. The downside is the need to remember a vast amount of detail and to recall where. dog-eared pages. essential medical records . the entire database is usually present at both the attorneys’ tables and therefore is immediately available. Key documents might include my report and interview notes. even for experienced experts.g.. tabs. Note again the importance of having and practicing a plan of organization. the opposing attorney cannot search through them for something with which to impeach your testimony. and ensures the accuracy of your recollection by direct verification. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. as are all the substantiating data. Note that some anxiety is normal. When no documents are before you on the stand. 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. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand.
during breaks. 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. If you are completely uncertain about what to wear to court. Arranging for a cup. Finally. the bored juror. Above all. your mode of dress should convey the fact that you are a professional in the courtroom on business. ornamentation. testifying is thirst-provoking work. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. 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. Stick to the conservative business mien. This table of contents enables speedy reference to key facts. Do not wear or carry your cellular telephone or beeper. do not wear new clothes. I take to the stand a one-page table of contents (i. showing off how busy you are and how court is taking you away from really important matters. depositions. Demeanor Being on the stand is not unlike being filmed. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. If I need the actual page or quote. perhaps comfort should rule. or carafe of water is an excellent idea. affidavits. 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. if you must. and cutting-edge high-drama fashion or excessive informality. or if you must. in the sense that you are usually under observation by someone—the bailiff. It is unclear whether either strategy is superior to the other. the bailiff usually will keep it filled. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. ensure that they are turned off. Indeed. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. what you wear should fit well and be well broken in. A handy pen or pencil. Avoid either ostentation. the defendant or . I can use my table together with the attorney’s copy of the deposition. and similar data.e. For depositions of less central players in the case. glass. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance..The Expert in Trial 77 (pruned to relevant periods if needed). and you will not go wrong. and check in. Arrange appropriate coverage so that you do not have to worry about being reached. eccentricity. highlighting marker. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt.
not credible. you know or should know that it is not personal and has nothing to do with you. however.78 THE PSYCHIATRIST AS EXPERT WITNESS. and sarcastic. Beware of “involuntary” gestures. Doctor. Such reactions may be misconstrued as disrespectful. not of the attorney in question. With discretion. and you want the jury to understand it. impugns you. it is important. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. humor directed against yourself may show that you do not take yourself too seriously. for example) as body language consistent with candor. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. Doctor?”). Your identity on the stand is that of teacher. an attorney—at all times. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. or degrades you. Make your point because it matters. Scholars recommend keeping the front of your body open (by not folding your arms. flip. If the attorney is hostile. Without such alliance. . in court it should be treated as a double-edged weapon likely to turn and cut the wielder. There is no reason for a teacher to get mad. all such chips are apparent) is particularly unconvincing. such as rolling your eyes at the jury when a particularly fatuous question is asked. If you become huffy or outright mad. and you are unfailingly polite. you are likely to be too involved and therefore possibly biased. A witness with an apparent chip on his or her shoulder (and in court. but of the jury or the entire process. even when someone else is speaking. Avoid personal body attentions (such as scratching) as much as possible. Attorney (with a slight sneer): Isn’t it true. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. you win the exchange. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. sneering. Be clear. get interested in what you have to say and stay interested. Even when an attorney attacks you. as follows. attorney moves on to another subject]. or obtuse to the seriousness of the issue. 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. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. humor may seem disrespectful. fluffy. SECOND EDITION plaintiff. demeans you. obnoxiously facetious. and stuffy.
or prone to nit-picking. or waxing argumentative rather than instructive. not stuffy.” but only a few things reach reasonable medical certainty).e. yet may ultimately give up on your testimony after straining to hear for too long. making roving eye contact with various jurors whenever possible. Speak to the most distant juror to be sure your voice is audible. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). understandable manner that brings the details together in a recognizable gestalt. project. Because jurisdictions differ as to the precise definition. but without intimidating staring. Keep in mind the expert’s role in telling the story in a coherent. not just a classroom exercise. explain. In general. theoretical. Testimony Direct testimony should unfold in an organized manner. If in any doubt about your speech volume. to accept a possibility as such (almost anything is “possible. Although you are a teacher. If you must use.” Make your point as concretely as necessary and back it up with hard data from the database. blunts your argument and weakens your credibility.The Expert in Trial 79 Being fluffy means being too abstract. and “waffley. and to admit that rules have exceptions. As occurs during the depositions noted in the previous chapter. If a microphone is available. Finally. Direct your extended remarks to the jury. concede a remote possibility and move on. jargon laden. evasive. ask if you can be heard by the farthest ranks of jurors. avoid discussing unconscious dynamics unless absolutely needed for your point. as a result of your careful and thoughtful preparation with your attorney. good teachers are lively and interesting. to concede a point that really doesn’t mean much. or respond to jargon. Haggling with the attorney over a tiny abstruse point. the concept is sometimes rendered mathematically as a 51% certainty. even inhibited souls will nod if they can hear. to agree that some things happen sometimes. It is not the same as “certainty” (100% sure).. what fools these jargonists be).” that is. They are not excessively academic. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. the most common beginner’s error in the courtroom is the inability to “throw it away. they are usually poorly received by juries. the trial is a human process. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. If no microphone is provided. pedantic. . a juror who cannot hear may be hesitant about saying so in open court.
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
—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. as if to convey. Recall that this is direct examination by his own retaining attorney.” but this appreciation is lost if the jury cannot understand or follow your description. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. The hazards of lack of practice are revealed by this following segment from an actual murder trial. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. it is numbing to a jury. even if the technical details are lost in the shuffle. some scholars assert. 83 Although this mode of explanation may seem cumbersome.” Realistically. . such an avoidance of cross-examination is sound trial strategy. “I don’t care to waste my time on this whore. The expert is on direct examination by his own retaining attorney. In the same way. As you can grasp by merely reading this response aloud. grunt. I have been impressed by their ability to grasp what is at issue. the dirt stays on the floor.” preferably said in a mildly contemptuous tone. the jury usually appreciates being given the “inside story. do not underestimate juries. Over the years. This is a powerful argument for at least organizing your thoughts before you begin to testify. the best cross-examination is. and the expert has theoretically prepared to tell the story in a coherent manner. and throat clear that you emit on the stand. The jury hears the testimony twice—an aid to both memory and persuasion. Consider practicing such a description with your attorney or colleagues or friends. stutter. and slavishly but perfectly appropriately. just like putting your hand over the vacuum nozzle. 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. any testimony from this witness would be bought and meaningless. Respect the juror. the chemicals stay in the spark gap and keep working so that your mood is lifted.The Expert in Trial (draw a barrier) this process. That is how this kind of antidepressant or mood elevator works. if you do that. may record every pause. 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. Adventures in Cross-Examination For experienced experts. “I have no questions for this witness. depressed— um—and seeking help. Um—as the events became closer to the—um—incident itself [the murder].
” the attorney may move on to the next question after you have said. such as the previously listed leading questions.. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. Throw it away. deposition. The tight rein on which you are held may make it difficult to get your opinion out there. never ask a question to which you do not already know the answer. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. The attorney may know the answer to a particular question from the expert’s report. no problem. interrogatory. First. the attorney asks closed questions. isn’t that right.” are almost always answered yes on the theory that almost anything is possible). what you say is often true in other cases. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. the attorney’s competitive strivings with the opposing attorney or firm. the attorney’s wish or need to have the client see the attorney doing something. which may be asked on cross. ask only questions to which only one answer is possible (fittingly. “that’s generally true” and you may be too flustered to challenge the action. or the answer may be obvious from the question (i. If you want to say. attorneys do not perform this simple but effective maneuver. “That’s generally true. equivocating hurts you. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off.84 THE PSYCHIATRIST AS EXPERT WITNESS. The following are some examples of the last (all are leading questions.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. SECOND EDITION Most often.e.. can they not?” • “Another expert might come to a different conclusion. surprisingly. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. questions beginning “Is it possible. Even those attorneys who opt to engage in cross-examination are usually (but. Instead. It is better to say. not always) aware of two fundamental principles that should guide this activity.”) or exhibitionism (“Watch me shine!”). Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. and even the attorney’s competitive feelings directed toward the expert.” . but in this instance it is not. “Although the present case is a clear exception to that rule. the question answers itself ). as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). or publications.. however. or alternatively.
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. Quotes On cross-examination. Doctor. Always ask to see the context if you do not immediately and completely recall it. consequently. to consider your answer carefully.” “no. state that you cannot answer yes or no. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . Practically. and to allow your attorney to object. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. You took an oath to tell the whole truth. Breaks During breaks that occur in the middle of cross-examination. some sources suggest answering at the outset. a judge may even decide to declare a recess: “While you are thinking. I seriously recommend that you try to look as if you are thinking to clarify for the jury what this pause in the proceedings is all about and to allow those jurors who have dozed off to be awakened by the sudden silence. if needed. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. or have you dozed off? It is best to state.” This response may be foreclosed by the judge directing you to answer anyway. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. some attorneys advise not discussing your testimony. “I’m going to take a moment to think about that. if not. and a mere yes or no may fail to convey the “whole truth.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). If either will do so.” The break gives you ample time to think. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words.” Listen with intense attention to the question. We’ll reconvene in 15 minutes. say it. At times. this type of questioning means that you have only three answers available: “yes. we are going to take our midmorning break right now. a question will require more time for prolonged thought or searching of your memory. to be sure you are clear about the question. and think seriously about whether yes or no will represent the whole truth. the attorney may quote something that you wrote or lectured on. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. At such moments. The key word is truthfully. Scholars liken agreeing to this either-or approach to signing a blank check.” and do so.
such as the discovery that you have left a key document in your suitcase across the courtroom or. The cross-examining attorney may make an issue of the fact that you had not seen a particular document or known a particular fact before you gave your opinions in your report or deposition. you may have written a report after reviewing some quantity of material.86 THE PSYCHIATRIST AS EXPERT WITNESS. the one that counts. In theory. if requested. The Final Opinion During the course of expert consultation. Later. Use your own judgment and knowledge of your biorhythms. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. This change is as it should be. Some experts want to call their offices during breaks. others find telephone calls distracting and let whoever is covering for them handle things. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. because it is based on data. Crises Various crises may strike while you are on the stand. . Your final opinion. 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. you may have been deposed. is your actual trial testimony. These include biological and physiological crises or circumstantial ones. you have confused loyalty to your attorney with the oath to tell the truth. The thrust of this line of questioning is to convey that your opinion is premature. I recommend avoiding eating heavily. could change with complete validity based on some new fact that you hear for the first time during the trial. you would have been obligated to so inform your attorney. 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. and some additional material may have come your way just before the trial (which. Now you must testify on the witness stand. even worse. in the trunk of your car. but let’s assume it did not). your opinion. as a “preliminary” report. Subsequent communications may be labeled supplementary reports to keep the sequence clear. For the lunch break. An aid to this conceptualization is to label your first report. incomplete. SECOND EDITION sions with your own personal lawyer are protected). or inadequately grounded in data.
at odds with your objectivity. The End of the Affair Finally. nod politely to the jury. and go. Do not stop to chat or debrief with the attorney. by needing to go to the bathroom. to see the outcome. fans!”). childish. stretch your limbs behind the screen of the stand. “You (or the witness) may step down” or “Thank you. or to learn of other subsequent activity. Forensic etiquette requires that you just leave. entitled. Deal with the problem and then continue with your task with restored focus. sickly. If you do shake hands. Your Honor. The judge dismisses you by saying. Focus on slow. when you are through. as always. The judge will almost always grant this. it poses a dilemma of a no-win situation. More troublingly. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. one of the parties or even one of the attorneys reaches out to shake my hand. or weak. and serious distractions impair your work. it invariably conveys the strong suggestion of partisanship. Some more extroverted experts thank the jury out loud. it is preferable just to hang in there. or emit other social behaviors. Do not be inhibited by fears that. Ask the judge if you may take a brief break for personal reasons. If a delaying tactic is not used.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. Your job as expert is important to the case. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. you exit. Do not hang around to hear what other witnesses say. get down from the stand. you seem to be acknowledged . and both grudgingly acknowledge that neither has any more questions for you. measured breathing. you will appear inept. Doctor. No one knows the effect of these gestures. conservativeness is probably better (the discreet nod rather than the glad-hand wave). that’s all. What do you care what happens? You only testify under oath. This behavior conveys too much interest in the outcome for someone who is not a party to the case. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. for example. and sit more upright to relieve tension. “Thank you. While this is a common and respectful courtesy. On occasion as I have left the courtroom.” At this point you say. wave at the jury box (“So long.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons.
as always. Gutheil TG. “juror countertransference” toward the attorneys. References 1. Most courteous attorneys will inform you later. if you do not or you ignore the outstretched hand. Forces beyond your control and outside your testimony—such as the demographics of juror selection. It is perfectly appropriate after some time has passed to call and ask the outcome. Finally. J Psychiatry Law 28:235–251. 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. the best teacher. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. and the like—impinge on trial outcome. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. Because this brief volume can serve only as an introduction. you seem rude. Take only your report. while acknowledging that experience is still. Surprisingly. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. If you have traveled far with a heavy load of database materials. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. this task is for the lawyers. I recommend instead treating each testimony experience as a kind of continuing education: What did you learn? What questions were you asked that caught you by surprise? Which crafty attorney’s gambits succeeded and which failed during your crossexamination? Did you in fact get to make the points that you believe needed to be made? Did you feel you were clear to the jury? Was there a better way of explaining or describing something other than the way it came out in court? These questions and their thoughtful answers are the true indexes of your success in trial. as much as possible about what happened and why it happened. however. some forget. 2000 .88 THE PSYCHIATRIST AS EXPERT WITNESS. A far more detailed analysis of testimony can be found elsewhere (5). always seek feedback and reactions to your participation. Reaching out your hand to the other side’s party or attorneys in some desperate dramatization of neutrality or even-handedness is likely to confuse everyone. SECOND EDITION for good (but partisan) work. by letter or telephone. For your personal development as an expert.
The Expert in Trial 2.
Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993
Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.
It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91
the other side may be willing to have your testimony inserted into their side of the case. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. with a deposition for a third case. others are not. The second priority is depositions. SECOND EDITION for months without any forensic activity whatsoever. hours. negotiation. so let’s put you on first at 9:00 A . You must do the best you can with what you’ve got. You’ll be out of there by lunchtime. If a trial and a deposition are scheduled for the same time. cancellation) is as follows.e.” in this volume). I can’t imagine my direct examination taking more than an hour. and serious matters hang in the balance. for example: “Doctor. tops. although obviously fewer persons and a shorter time frame are involved than are for trial. As a rule of thumb. “The Expert on the Road. An attorney who planned to have you “bat cleanup” (i. The tension here is that some courts. maybe 2. add another layer of challenge. requiring two parties to match schedules. theoretically. flexible. Large numbers of people are involved. The last two priorities are interview and report. I know you have a busy schedule. the trial should take precedence. Trials take first priority. 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. In extreme circumstances.92 THE PSYCHIATRIST AS EXPERT WITNESS. and accommodating. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. of course. attorneys. Because your attorney has the most interest in your presence.. a forensic interview. sharp.” Smile politely when you hear these words but make expansive plans. comes before a report. This type of schedule is close to reality. Because your reports can be done at any time of the day or night. the hierarchy of urgency and therefore attempted postponement (or at worst. and telephone calls to resolve them. which also require several people to synchronize their schedules. You’ll probably be cross-examined for 1. Travel glitches (discussed in Chapter 10. two trials in different states will be called simultaneously. court dockets are crowded and leave little flexibility. he or she will be exerting the greatest efforts to make it all work out. with suitable preparation of the jury. but things happen. and other-side attorneys are reasonable. You can count on your eyeballs the number of times this clockwork model actu- .M. but during the very week that you have scheduled four weddings and a funeral.. You may have a little room to maneuver in terms of the order in which you testify.
In the end. 2006 . 2002 Reid WH: Forensic practice: a day in the life. Washington. The judge assigns a long lunch and hears another few motions just afterward. However. negotiation may be possible for some scheduling conflicts but not always. and family. American Psychiatric Publishing. some are not. References 1. Commons ML: Trading forensic and family commitments. The attorneys wrangle over whether some document relevant to the next witness is admissible. The jury takes a long midmorning break. Thus. 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. Occasionally.” In addition. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Gutheil TG.M. DC. 2. J Am Acad Psychiatry Law 32:356–358. The best aid for peace of mind for the would-be forensic expert is an understanding spouse.) 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. 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. J Psychiatr Pract 12:50–54. no clear conclusions can be drawn. it is not uncommon for an out-by-noon case to extend into the next day. Although my colleagues and I tried to study this issue formally (2).Some Pointers on Expert Witness Practice 93 ally occurs. partner. Gutheil TG: “Paraforensic” aspects of expert witness practice. difficult choices may have to be made. 2004 Kearney AJ. 1996 Suggested Readings Gutheil TG. the odd juror gets stuck in traffic. Why? Although some judges are scrupulously punctual. a judge will treat the time between 9:00 and 9:30 A . (More suggestions on scheduling are included in Chapter 10 in this volume. The subject may represent some kind of taboo because it is rarely discussed. Bull Am Acad Psychiatry Law 24:533–546.
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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. or for a disability determination. a court.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. an attorney. or to serve on a jury. allowing careful legal analysis and reflection on whether you will be helpful on the case. for a worker’s compensation claim. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. to serve as a witness. some basic principles on letter writing to the court are described and are not repeated in this chapter. I focus on writing the full-fledged forensic report. In The Psychiatrist in Court: A Survival Guide. or a full evaluation of a person’s competence to stand trial. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. 95 . a defendant’s criminal responsibility. or a physician’s deviation from the standard of care. a description of an independent medical examination for a personal injury suit. In this chapter. In all such cases.
simplicity. and meticulous proofing and review of any report you produce. has generously and graciously granted me permission to cite some of his advice on report writing. M. and 3) the full.96 THE PSYCHIATRIST AS EXPERT WITNESS. for which I am most grateful (where I cite his material. 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. painstaking preparation. Phillip J. which in that jurisdiction is discoverable by the other side. the reader should be able to understand how the opinion was reached from the data in the report. of course): 1) no report. According to Dr. I refer to him explicitly in the text). Without referring to other documents. For similar reasons. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. SECOND EDITION Alternatively. In this chapter. General Remarks The report as a whole should meet certain criteria. the attorney may ask that you not furnish a report. Despite these useful functions. the report may present materials or approaches that the attorney does not wish to share with the other side. It should stand alone. Resnick also identifies the “four principles of good writing”: clarity. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. then. Critical documents should be briefly summarized within the report. In other situations. It should contain everything that you need to support your opinion and no irrelevant material. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. detailed report.” Dr. because the first is self-explanatory and the second is an extract of the third. without detailed discussion of the bases or reasoning behind those conclusions. “Reports should be self-sufficient. brevity. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. all should govern the form of the report. . and humanity. Forensic report writing. These are all powerful arguments for careful thought.D. Resnick. It should be just long enough to cover the essential information but not so long as to exhaust the reader. Resnick. 2) a summary report. Consequently. which states all of your conclusions and the analysis of all the relevant substantiating data. I emphasize the third form. Obviously.. may take three major forms (with variations possible. which presents your database and conclusions only.
.. the charges in a criminal case. sometimes called the referral.” The Database After identifying the occasion. I examined (name of examinee) with regard to (forensic issue). Jones et al.g. One model by Dr. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. or emendations should be titled “Supplementary Report. and depositions. think of your report as a memorandum and use a standardized format. In that case. or State v. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. of the report should address the question of why you are writing this report.. police reports. 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).. 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.. Resnick is included at the end of this chapter.g. The Occasion The occasion.” Some attorneys. John Johnson). The heading should also include your letterhead and the date of the report. Include any interviews per- .Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report.. that is.” • “I examined Ms. the case or docket number if known. .” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). emotional injury or psychiatric malpractice). additions. Identifying data can be presented in a number of ways. otherwise. or the type of case in a civil matter (e. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest ... use a standard business letter format.” and subsequent contributions. 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. Smith v. legal pleadings.
it is my professional opinion. It is important to couch your conclusion in the explicit jurisdictionspecific language defined in case law or statute (your lawyer should inform you what this is) and to state it according to the standard of reasonable medical certainty (or its local variant) to render your report material and admissible. Note the wording. including interview data) and your total clinical background of training (what you were taught) and expe- . This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. or according to some natural. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). . the overall basis is described as both the database (all the material reviewed in the case. The remainder of the report is thus treated as optional reading. The documents may be listed alphabetically. all depositions). and so on.g. you are free to choose your favorite. chronologically. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training .. for example. SECOND EDITION formed and their date and length. (or. logical grouping (e. 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. about the disposition. 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.. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. that. A typical conclusion in a malpractice case. Although each group has a rationale. or other) is free to stop there and make decisions about future directions in which the process should go. First. attorney. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. held to a reasonable degree of medical certainty. in the treatment of (plaintiff ). no convincing case has been made for the inherent superiority of either approach. all medical reports.98 THE PSYCHIATRIST AS EXPERT WITNESS. 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.
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). offer alternative opinions. insanity. effectiveness. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making.e. you can present the supporting material in several ways.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). It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. Dr. sometimes different spins on the truth. If your conclusion comes at the end of the report. but occasionally. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. usually. and credibility as an expert witness. or other.. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. sometimes frankly contradictory. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. Remember that the conclusion. this section should contain extracts of previous material directly supporting the points you are making. In these cases. As Dr. If your conclusion is stated at the outset.. the expert should scrupulously avoid assuming one side is correct. the defendant usually has admitted the act for which he or she is charged.” Multiple Realities In civil cases. Supporting Data After the conclusion. malpractice. be it competence. Finally. is essentially boilerplate (i. The reader should not have to use his/her own inferences to understand the point. standardized legal language).e. more likely than not). In criminal cases involving the insanity defense. Resnick states. your conclusions should be presented in . “Reasons supporting opinions should be clearly and fully stated. although representing the core of your opinion. Third. Resnick explains. Dr. 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. it is predictable that plaintiff and defendant tell different stories. Second. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. “If there are two versions of the facts.” In every case.
then . There is no absolute guideline for this procedure. which make for a stronger report. money.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. and shortening the report by aggressive editing. Constraints. then . Limits. A challenging gray zone is negotiating about wording. or to change the substance of your opinions. and deleting. to alter or misrepresent facts in the database. judge. then . Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner.. and Rebuttals If there have been any constraints of time. on the contrary. Some requested alterations are fully ethical. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. but generally there is no inherent problem .. Postreport Negotiations After your report is finished and has been sent to the attorney.” This approach prevents your seeming to side with one party in the case. asking for the addition of new material not supplied to you earlier. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording.... interview of plaintiff blocked by attorney. or agency for which it has been prepared.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true.100 THE PSYCHIATRIST AS EXPERT WITNESS. or data (such as inadmissible material. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data.. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. A case example was discussed in Chapter 3 (“First Principles”) of this volume. it is essential that you identify and remain ready to testify under oath to such contradicting factors if asked under cross-examination (or direct examination for that matter). SECOND EDITION the following form: “If the allegations are true. summarizing. (Remember you must be candid about everything you believe to be true. some are not. These are not weaknesses of the report. it would be a weakness not to acknowledge these factors candidly. these should be recorded.if defendant’s version is true. Whichever approach you actually take in your written report. you may receive requests to alter the report in some ways. even if it has been removed from your report for brevity.
13. and effect of emotional injuries—three common problem areas. 16. 5. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. 10. 7. very likely. 3. 9. Identifying information: Source of referral: Referral issue: Sources of information: Qualifications of the examiner: Statement of nonconfidentiality: Past personal history: Family history: Sexual and marital history: Educational history: Employment history: Military history: Relevant medical history: Drug and alcohol history: Legal history: Psychiatric history: Prior relationship of the defendant to the victim: 1Used with permission. 12.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. 14. 8. intensity (likely. Resnick’s outline for a typical criminal report. 2. extremely likely). You also may ask to see a senior colleague’s report under an agreement of confidentiality. The Criminal Report: An Example The following is Dr. 17. 6. but it may get you started. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 11. 15. . 4.1 1. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. Be careful about changing wording concerning issues of causation.
1987. THE PSYCHIATRIST AS EXPERT WITNESS. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. SECOND EDITION Defendant’s account of the crime: Witness and/or victim accounts of the crime: Mental status examination: Physical examination and laboratory tests: Summary of psychological testing: Competency assessment: Psychiatric diagnosis: Opinion: Suggested Readings Babitsky S. 23. Falmouth. Am J Psychiatry 143:164–169. 24. Hess AK. 2007. 19. MA. et al (eds): Consultation. 20. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. 21. 22. in Handbook of Forensic Psychology. Guilford Press. Petrilla J. pp 577–605 Weiner IB: Writing forensic reports. New York. 3rd Edition. Edited by Weiner IB. Wiley. SEAK. pp 511–528 . 25. Poythress NG. New York. 1986 Melton GB.102 18. report writing and expert testimony. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury.
I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. Unfortunately. We will let you know shortly which of our directors will be working with you.) 103 . In the late 1970s. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. and inefficacies. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component.” The ability to say yes to all comers seemed like a good idea at the time. In this chapter. We sent this announcement to every attorney we had ever worked with. We retained an industrial designer to help create a logo (highlighting crimson. and we drafted an announcement. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. heard of. such an affiliation would mean that we would be able to say to any attorney who called us. a letterhead. “Yes! We (or the corporation) will take your case. and a typeface for our official stationery. embarrassments. to connote the Harvard connection). (I believe this excluded only admiralty practice and the law of the sea.
The result was tantamount to letting a drop of water fall into a large lake. word of mouth). which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. for example. thought. The Key Approach As time went on. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. and unspecialize. 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.104 THE PSYCHIATRIST AS EXPERT WITNESS. an expert’s marketing strategy shifts to generating favorable word of mouth. SECOND EDITION All this effort did nothing. Based on this reasoning. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. Ordinary advertising in Lawyers’ Weekly. “Types of Typical Cases. . Support for this theory came from Harvey Research in 1994. but the net effect for all this time. Most recipients almost certainly awarded our announcement the coveted circular file disposition. list. The problem with some forms of getting the word out is that you may not know how a particular listing is regarded within the legal field. inform. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. speak.” in this volume). that is. We received a few form announcements from two or three firms about their offerings.e. write. commercialized hustling for business—or the appearance thereof. and pride and confidence in your work versus hired gun certainty or grandiosity. is suspect and not reliable as an approach (see also Chapter 4. opportunistic. The balance must be struck between dualities such as generating word of mouth versus hucksterism. clinicians) led to forensic referrals: word of mouth. sharing useful information versus being pushy. The Delicate Balance In all approaches to marketing. and expense resembled our own responses to offers that come in the mail to sell us insurance..
the GAL may do a preliminary survey of the psychiatric aspects of a case. and send it to attorneys and clinicians. 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. Describe those services you can authentically offer. it should be tasteful. Thus. If you are moving into a new town. judges may need your services. 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. Finally. For your clinical peers. of course. Among other roles. Serving as a guardian ad litem (GAL. then reporting to the court. Some experts replace the announcement with a minibrochure: a single. if you have one. . Avoid any hype. informative. too little time. or use it in some other appropriate way. and factual. 3) attorneys. you may wish to send a short. in effect. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. If you inform your peer groups about your availability. will see you in action in deposition or trial. hand it out at a lecture. First. they will be useful to you in several ways. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. they may turn away a case because of a conflict of interest. Although your forensic peers may seem to be your competition. Alumni bulletins and class reunions are also opportunities to get the word out. Attorneys whom you can inform include your own attorney. and lawyer neighbors and friends who might pass your name along. including listing services you are not truly expert in. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. polite letter informing local judges of your availability for forensic services. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. the announcement should display the professionalism that you plan to bring to the work. or other reasons. 2) your forensic peer group. Opposing attorneys. trifold sheet of fine paper with a brief description of the expert and the services.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). previous associations with the attorneys on the other side. and 4) judges. they may think of you at that point.
many referrals to psychiatrists come from publications. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). departmental conferences. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. 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. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. You will be exposed to attorneys and legislators. no one will show.106 THE PSYCHIATRIST AS EXPERT WITNESS. Admittedly. ambush journalism. both of whom may be potential referral sources. Although it is useful exposure and a valuable resource to write an analysis. however. sign up as an entry in an existing lecture series. these publications may be explored. but the wounds of experience are probably and ultimately the best teacher. Finally. review. this skill is acquired. Beat the Press (2). Instead. or established continuing medical education programs. or commentary and have it published. the topics of which appear on the screens of attorneys’ computer searches. which are often seeking a stable of experts to comment on medicolegal stories of the moment. such as clinicians and lawyers. may be helpful in dealing with the media. and media exposure may open you to crank calls. such as hospital grand rounds. try to become involved in local media such as call-in shows. Write In our computerized modern age. and similar humiliations. . One reference. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. Become active in your district branch legislative committees and processes. The APA Public Affairs Office provides some guidance in dealing with the media. 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. In my opinion. SECOND EDITION List Listings can be effective as well. Your podium demeanor may convey at least a little about your expected performance on the witness stand.
From the absolute onset of your career. extremely public. Be extremely careful about posting your qualifications. some critical considerations are the following: 1. It may then take you years of work to unblemish your reputation. including this one. based on your fine performance at the deposition. integrity must be your watchword. skills. modesty. one turn to the Dark Side of the Force. Have the site professionally designed with attention to taste. 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. and interest. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. a point that cannot be overemphasized. even at the outset. Consider taking on some pro bono work as well. by definition. no matter how slight the issue. Even minor. training.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. trivial cases allow you to be observed in action by potential employers. widely publicized mass murders. Begin your career by unspecializing. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. wherein you follow the ancient maxim. as it were—but the Web site is perhaps the most explicit. Conservatively stating your incontrovertible credentials (actual appointments. What About Web Sites? In the modern era the use of Web sites has increased for all professions. You will derive no income.” This is a losing strategy. and your course as hired gun may be marked. place in the profession. and other aggrandizing statements that are. but you will obtain valuable exposure. I will work only on high-profile. No case too small. If you decide to use a Web site. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. 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. certifica- . 3. 2. In the same vein. some broker organizations guarantee your opinion. It does not matter if the case is trivial or small potatoes. Beware of making or seeming to make extravagant claims for your knowledge. Do not bend the truth to satisfy the attorney. In fact.
UT. 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. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. specific required expertise). conflict. Salt Lake City. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. American Book Business Press. You are saying to the calling attorney. at times trying. you are also revealing yourself as a good first stop on the search for a good expert. publications. and demanding of patience. choose only those experts whom you would be confident to have on your side if you were being sued for something. J Psychiatry Law 31:5–19. Building a practice on word of mouth is slow. but I will take it upon myself to find somebody good who can. Return telephone calls are the easiest marketing device and one of the most effective. SECOND EDITION tions. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. including attorneys and fellow clinicians. References 1. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true.108 THE PSYCHIATRIST AS EXPERT WITNESS. sound. but no other method is as reliable. Remember to thank your referral sources.” Although you are feeding the competition. and effective. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. etc. Additional Pointers The issue may seem trivial. “I can’t take this case (because of time. . Sadoff RL. Dattilio FM. Finally. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. 2002 2. 2003 Fulton S. Guyant A: Beat the Press.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). but its importance cannot be overstated: return telephone calls promptly. recall the value of brokering. In analogy with clinical referrals. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. for referrals.
out of Falmouth. Tageh Press. 1997 Feder HA: Succeeding as an Expert Witness. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. Glenwood Springs. WW Norton..Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. New York. Inc. . I disclose that I have lectured for SEAK numerous times over the years. Massachusetts. CO.
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and opprobrium. The author is indebted to Robert I. William Reid. In this chapter. M. examinations. Simon. M. 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.D.C H A P T E R 10 The Expert on the Road: Some Travel Tips for Testifying Away Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy. mockery. 111 .D. seasoned travelers may skip the chapter entirely.. this chapter will be too obvious and not relevant to your needs. IF YOU TAKE ONLY CASES in your immediate neighborhood (such as might happen when you work for a court clinic) or if you are already a seasoned traveler. or interviews. I address some tips and strategies for the expert who is inexperienced in traveling to cases. 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. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices..
Alternatively. to ensure that it still fits. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. and one pair of shoes. the process takes even longer. looks professional. on rare occasion. especially in flight. These services can book flights. Try on everything before you pack it. and return that day or the following one.112 THE PSYCHIATRIST AS EXPERT WITNESS. Some General Recommendations Travel Information Travel guides are available everywhere. and your colleagues. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. you may make the appropriate adjustments. and general information can be obtained from books. 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. Opt for crushproof fabrics and materials whenever possible. Another useful reference is Jet Smart (2). Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. travel agents. Consult with significant others for their opinions if needed. especially if you have not worn it for a while. 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. 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. the Internet. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. testify or interview the next day. cars. the emerging online travel services (Expedia and the like) may prove useful. and is in good repair. For cases that involve land travel. Still other guides are provided in the suggested readings at the end of this chapter. matches. 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. stay overnight in a hotel or similar setting. polished shoes for men and women). Running shoes also allow you to sprint through airports to . and hotels directly and save you much time and stress on the telephone or online. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court.
g. Seek equitable division of costs for multiple-case trips. You have enough to worry about . It is possible. in-room movies. rare but extremely stressful when they do occur. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. for one telephone call to the family. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. for one or two telephone calls per day to the office to check on things. massages. is addressed nowhere in the forensic literature). A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. a useful principle is to avoid double billing in any form. do not bill separately for that work because you are already being paid a day rate. which are. fortunately. then.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. If you review a different case on the way back. you may bill for that time but not for the ticket because the first case paid the whole trip already. For example. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. because some law firms are slow to reimburse hotel and plane expenses). Avoid checking baggage if you can. or 2-hour long-distance calls to your paramour. The Ethics of Billing Bill strictly according to your fee agreement. 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 example. the literature is relatively unhelpful (the issue of double billing. and for the regular three meals.. 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. do not bill for sleep (you do it anyway). if you are flying to a case and use air travel time to review the case. If the trial runs longer than a day or so. Separate business from personal comfort. 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. 1 day at your day rate. Until data emerge. but not alcoholic beverages.
and pack the rest of the gear. light flashlight for power outages and searching under beds for lost items. but you may wish to experiment with a friend’s suitcase. it is indispensable to your successful travel ventures. such as a variety of buttons and threads to match your clothes. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. It is definitely a basic principle for assembling your kit. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. or toiletries case. and cleaning. Current travel restrictions have shifted the allocation of liquids. which may also be prepacked. and creams to quart-size plastic bags. extra eyeglasses or contacts if you wear them. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. decongestants. and extra combs. remedy. Other useful miscellaneous items include adhesive bandages of various sizes and types. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. Dopp kit. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. antacids. and rubber bands. safety pins in various sizes. Alternatively. multifunction “pharmacy” also should be included. these roll-alongs often fit either in the overhead compartment or. a small roll of duct tape. and string. do not skimp or economize on the roll-along suitcase. with a little applied topology. makeup bag. a small. and similar medications. These should include sewing items. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. The Kit Whether you call it a travel kit.114 THE PSYCHIATRIST AS EXPERT WITNESS. In general. even under the seat in some cases. you may opt to wear the suit or outfit on the plane and guard it in transit. stain-remover sticks that do not contain toxic petrochemicals. Remember also that your kit should contain items that permit repair. A small. not to mention the current airline custom of charging extra. 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. Wear your workout or running shoes on the plane. In psychoanalytic theory. eyeglass screwdrivers and replacement screws. In addition. . It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. What you take should have similar versatility. extra shoelaces. lotions. the principle of multiple function is one of the basics of a dynamic understanding of mental life.
The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. I recommend the hotel or motel for several reasons. 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. Secrets of Staying If you are unfamiliar with the expert art of “fly in. You breathe through a filter that lasts long enough. Seriously consider avoiding airline food entirely. procedures. call the airline early to check on facilities. often hooked to a travel alarm clock. institutional hotel or motel and cadging free lodging with friends or relatives in the area. If you have a disability. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. I carry a compact “smoke hood. but you can buy your own compact version. in theory. try breathing through a moistened towel for short periods. This item is available through a number of catalogs. Almost all modern hotels in the United States have smoke detectors. on very dry flights. experienced travelers can skip this discussion. First. Emergency Items Neurotic fears can certainly flower when you travel. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. Second. and special arrangements. because someone else is paying your way to the location. The traveling expert is sometimes torn between staying at a cold. Drink water steadily to avoid travel dehydration. although occasionally.” this discussion will be helpful. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. fly out. you are undistracted by social obligations and family strife or background noise. testify. but some precautions seem sensible.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. for you to get out of the toxic smoke and gases to safety. fails). Besides a small flashlight. remember to carry light extension cords and voltage adapters. it is more professional to meet with your attorney the night before the . or order special low-fat meals.
a business trip. you can often wad up the corners and jam them between the top louvers of the inlet so that the cloth or towel hangs across the incoming air inlet. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. is to make a beeline to adjust the hotel’s alarm clock or clock radio. Secrets of Eating In traveling to court. obviously you should eat lightly and stick to what is familiar to you. Experimenting with culinary exotica is asking for a case of turista at worst. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. 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. have your martini on the airplane home after it is all over. you are free to visit friends and family at your own discretion.M. after I put down my luggage. back up the call with your travel alarm. If a paper clip or safety pin does not suspend the cloth or towel well. if desired. a situation that can leave you hoarse. after all. and headachy on the stand. . After the trial. It is probably safest to avoid all alcohol during the trip before testimony.116 THE PSYCHIATRIST AS EXPERT WITNESS. wring it out thoroughly so that it doesn’t drip. the air is invariably dry in most hotels. A simple but effective method is to soak a washcloth or hand towel in cold water. congested. Remoisten it as needed. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. but not all. an essential part of effective testimony. My first move on entering a hotel room. 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. Don’t forget to set the room thermostat to your accustomed household temperature. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. Some. My second move often is to arrange a do-it-yourself humidification of the room. hotels provide irons. Whether the room’s air system is heating in winter or cooling in summer. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. SECOND EDITION trial in a hotel room or conference room. of course. this is. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . nausea on the witness stand also may be misinterpreted.
either by closing them completely or fastening gaping fabrics with safety pins. 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. I recommend it. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. without aftereffects. plan your trip to allow time for recovery from jet lag. and with sleeping pills.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. hot baths. by using either alcohol or sleeping pills (barbiturates. Far better results accrue from sleep hygiene maneuvers. or even a different time zone. actual memory loss can occur—the last thing you need. Many travelers find it helpful to block out morning sunlight with the drapes. Examples include prescription medications that you need during the course of a long day. or similar terms. These have ill effects. When possible. but all the data are not in. usually described in catalogs as “sound soothers.” sleep sound machines. spending some time in direct sunlight may be helpful in adjusting your biologic clock. including hangovers. you can have a serious meal without ill effect. What to Take to Court Courthouses are notably lacking in amenities. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. of course. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . Ordinary AM radio static and the sound of surf are two examples of white noise. as noted. Catalogs sell portable battery-operated white-noise generators. and similar relaxants. 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. breathing techniques. just as white light contains all color wavelengths. This term refers to sounds containing all frequencies. or others) at bedtime. also eat lightly. After court. stain ..M. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. benzodiazepines. When you are up and awake.
Commons ML. Celestial Arts Publishing. sample wardrobes and general travel pointers included as well. James E: The Secrets of Simple Packing (VHS videotape). Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. Miller PM: Expert witness billing practices revisited: a pilot study of further data. I hope that these tips make your travel easier and less surprising. CA.) Gutheil TG.) Savage P: The Safe Travel Book. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Magellan’s International. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Commons ML. CA. 2003 2. WA.118 THE PSYCHIATRIST AS EXPERT WITNESS. or throat lozenges. Seattle. J Am Acad Psychiatry Law 26:21–26. et al. I welcome your suggestions and favorite travel tips. and a headache remedy for the obvious problem. Berkeley.: Expert witness travel dilemmas: a pilot study of billing practices. 1998 Gutheil TG. Jossey-Bass. San Francisco. 4. CA. Villard. mints. with the emphasis on safety and security issues. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. or refreshment. J Am Acad Psychiatry Law 29:202– 206. Psychiatric Annals 33:302–306. 3.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. SECOND EDITION removal. Slater FE. cough drops. Although some of the pointers in this chapter probably state the obvious. Flying Cloud Publishing. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Santa Barbara. Ten Speed Press. 1996 . 1994 (An excellent guide to what to take and how to pack it. Revised.) St. References 1. New York. 1988 (Incredibly detailed. Berkeley. 5. 2001 Simon RI.
Although some forces in society. consider first reading the companion volume. As always. the reader. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). If I have made too many assumptions about you. the courts will continue. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. (American Psychiatric Publishing 2002). effective. I welcome comments and suggestions from readers to correct. including our medical colleagues. 119 . and helpful testimony. M. consider reviewing the successor volume to this one. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. the more we serve this valuable and necessary function. from all evidence. which I cowrote with Robert I.D. The better we are at meeting the courts’ needs with ethical.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. Simon. decry the expert witness function and voice arguments for its abolition. The Psychiatrist in Court: A Survival Guide. On the other hand. or render this text more useful. to require our services in increasing numbers. if you wish to take your work to the next level. That book may fill in some of the blanks. or have taken too much for granted about your background and experience in any portion of this text.
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. I read it or have the examinee read it at the start of the interview and answer questions.e. and the examinee’s attorney’s attestation that the examinee understands the form (i. supplied for consideration. The main points about the form are the use of basic language. 121 . clarification that the forensic examination is not the practice of medicine.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. is likely to be competent to consent to the interview).
I agree to be interviewed. if needed. Dr. Dr. . I understand. The examination will be one or more personal interviews. Dr. and I understand they will be part of the same examination and will follow all the above rules. Gutheil will explain or has explained to me and I understand that Dr. Gutheil’s written report or out-loud statements for court may help my case. and I understand. the person who has signed at the bottom of this letter. I also understand that I am not his patient in connection with or because of this interview or interviews. or out loud in open court in a trial. Gutheil may write that down for the record. in spoken depositions (where lawyers ask him questions). I understand and agree that Dr. 4. Gutheil”) I. and I understand that no one can know which one it will be in advance. however. “follow-up. the following: 1. that he is not acting as my physician or psychiatrist in doing this interview or interviews. 3. Gutheil’s questions. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. Gutheil keep secret what I tell him. Gutheil has my permission to talk to people involved in my legal case about the things that he and I discuss and anything he thinks or decides about what we discuss. hurt my case. Gutheil. Because I am being interviewed in a legal matter. nor will he suggest any treatments to me or for me. Gutheil is a physician and a psychiatrist. Thomas Gutheil. Gutheil. or have no effect on my case that I can see. Gutheil will explain or has explained to me. but if I refuse to give an answer or some answers. Dr. 2.D.” or “update” interviews of me by Dr. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. Dr. Gutheil will not give me any medical or psychiatric treatment. I understand that I can take breaks if I want to at any time during Dr. Gutheil’s interview or interviews. M. I agree to give up my rights to have Dr. I understand that Dr. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. agree to have an examination by Dr. (“Dr. in connection with my legal case. This means that Dr. . I understand and agree to additional repeat.122 THE PSYCHIATRIST AS EXPERT WITNESS. most of which will be very personal. 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. SECOND EDITION Consent for Forensic Examination by Thomas G. I understand and agree that Dr. During this interview or interviews I will be asked a number of questions about myself.
Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Attorney for examinee Print name Date day of . Gutheil’s retaining attorney. free to show it to me. I certify that I have answered any questions my client asked about the procedure. Any report in relation to my case will not go to me but will go directly to my attorney. to my assessment. that individual is. Signed.Appendix 1: Consent Form for Forensic Examination 123 5. of course. or the court as provided by law. Dr. 20 . a court officer. he/she appears competent to understand it.
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including portal-to-portal local travel (c). and $ per hour for trial. M. Standard Letter of Agreement by Thomas G. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. Dr. Gutheil.Appendix 2 Standard Fee Agreement THE EXAMPLE of a standard fee agreement that follows is annotated by lowercase letters in parentheses (annotations are explained at the end of the text for this agreement). Gutheil”) 1. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. the radical revision presented here has evolved from that in the first edition for the same reasons.D. at a rate of $ per hour plus expenses. $ for depositions. Gutheil shall be reimbursed for all time spent on the case. rescheduling is at mutual convenience. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. (d) 125 . in addition. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. (“Dr. and the same due for cancellations that occur less than 72 hours in advance.
Failure to comply may void this agreement except for duties of confidentiality (l). Gutheil by name (h). including travel by first-class conveyance and appropriate lodging if needed. 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). (q) 6. Gutheil. Before such travel is undertaken. irrespective of case outcome (j) or defaulted appearances. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. materials. Please note that because of vacation scheduling. 5. (s) Note: Please send all case materials to (address) Date . The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. prorated (k). and examinations as discovery rules permit. 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). as an advance against which expenses are billed (p). made out to Dr. is the sole responsibility of the retaining attorney or insurer (i). The retaining attorney understands that my forensic work is not the practice of medicine. 4. please return one copy to Dr. Dr. 3. Gutheil’s FID# is . Gutheil will be unavailable for testimony in person during the month of August (f ). A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. Signature below indicates agreement with all (r) these terms. a retainer of $ pected 3 business days in advance. For out-of-state travel. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). and as a condition for its specific to this travel is exbeing undertaken. Payment in a timely (g) manner. For out-of-state evaluations or testimony. SECOND EDITION per day 2. Signed.126 THE PSYCHIATRIST AS EXPERT WITNESS. any existing balance shall also have been paid 3 business days before departure (e). Dr. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. Overdue accounts may accrue interest at 6% per annum.
Working for the client. the “clock” starts when you leave your home or office for court and stops when you return to office or home. If you do withdraw. “Consideration” and “agreeing” are trigger words that signal to attorneys. I recommend asking for this secondary retainer before travel. l. f. can constitute a bias. Your fee is. Some experts charge differing rates. you may decide to withdraw. Doc. thus. moreover. i. For unexplained reasons. Because you will be investing a fair amount in the travel costs. You must be free to withdraw from the case if the contract is breached. but what can I do? That client just won’t honor his or her obligations. n. this clause makes that explicit. noncontingent.” 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. this statement makes the attorney agree to that possibility.” d. or trial travel. or trial. . If the retaining party is relentlessly slow. or even retain another expert. If you know when your vacation is. others the same. “portal-to-portal.Appendix 2: Standard Fee Agreement 127 Annotations a. j. as it ethically should be. “You’re right. deposition. If you are the sole proprietor. Every agreement must have an exit clause such as this one. This is a standard rate of interest on overdue accounts and an incentive for timely payment. b. that does not mean you should not be paid for the work already done. dunned for appropriately earned fees. e. that this is a formal contract. take a videotaped deposition. c. for review. A case decision that goes against the side retaining you is not grounds for nonpayment. You are initially retained as a consultant. attorneys are sometimes slow to reimburse travel expenses for interview. m. whether you become an expert depends on your taking the case as meritorious and the attorney’s accepting you as an expert witness (for deposition and/or trial). will throw up their hands in mock exasperation and say. it saves everyone time and heartache if you spell it out. make that clear so that you don’t waste a lot of time swapping checks between payees. This information frees up the attorney to ask for continuance or rescheduling. k. You have the right to request timely payment to prevent excessive backbalance buildup. or a member of a corporation or group practice. To cut through nit-picking. h. g. deposition. based on their training. Some attorneys.
alas. some experts simply submit additional invoices. s. 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. after settling the case. and ethical incompatibilities. these events do not weaken the contractual ties with the firm. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. Making the retainer nonrefundable tends to eliminate such shenanigans. or has left the firm. legal. ask for their retainer back.128 THE PSYCHIATRIST AS EXPERT WITNESS. The retainer is not only a means of establishing the contract but also an actual advance against expenses. at no cost to the attorney but at lost time and possible income to you. SECOND EDITION o. r. others ask for a second retainer (see also Appendix 3 in this volume). if the attorney is out of the country. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. When this retainer is depleted. and. give you no work to do. The wording here. On rare occasions. You are here agreeing to accept signature from a different attorney or a paralegal. . has handed the case to another attorney. You have been sandbagged. for example. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. because you did no work. identifies the attorney’s understanding that this is not the case. p. Moreover. making you ineligible for participation with the other side. parallel with the forensic consent form in Appendix 1. q. Such attorneys may pay the retainer. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which.
Psychiatric services may include an initial consultation. This retainer will constitute a credit balance until exhausted. interviews with family members or other persons. consultation with counsel. if it appears that substantial services are yet to be rendered. If travel from my office is necessary to perform any of these services. Thereafter.D. and report preparation. M. the hourly 129 . I may require an additional retainer. STRASBURGER. psychiatric interview or evaluation. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. Any credit balance remaining will be refunded upon the termination of my services.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. LARRY H. review of records. 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. 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.
I will send you a monthly statement. as prescribed by statute. expert or otherwise. the retainer discussed above. All travel shall be by first-class conveyance. prior to my testimony. court order. Larry H. please so indicate by signing this letter and returning it to me with your check for the retainer. Please keep a copy of this letter for your records. etc. Diplomate. 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). SECOND EDITION rates will apply to portal-to-portal travel time. court rule. American Board of Psychiatry and Neurology Diplomate. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial.130 THE PSYCHIATRIST AS EXPERT WITNESS. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . and all travel expenses will be reimbursed. photocopying. including secretarial service. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. If the foregoing fee basis meets with your approval. literature research. no refund of the retainer deposit will be made. Strasburger. postage. Sincerely. M. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. along with a listing of out-of-pocket expenses. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony.D. Nor shall such failure relieve your obligation to have on deposit. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. setting forth the nature of the services rendered since the prior billing. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. messenger services. Any excess over the retainer balance is due upon receipt. Time spent in preparing for testimony shall be billed at the hourly rate specified above. 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. long-distance telephone calls.
2002 Babitsky S. SEAK. their quality is variable. The Psychiatrist in Court: A Survival Guide. 2007 Babitsky S. Falmouth. this has many useful tips on trial demeanor and related issues. Falmouth. MA. Mangraviti JJ: How to Become a Dangerous Expert Witness. MA. SEAK. National Institute for Trial Advocacy. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. Am J Psychiatry 159:1819–1825.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. not just psychiatry. 2002 131 . Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. 1997 (Though aimed at attorneys. SEAK. however. Falmouth. Falmouth. Falmouth. MA. These sources are meant to supplement those provided at the ends of the chapters in this book. as well as those found in the companion volume. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. MA. Falmouth. 2005 Babitsky S.) Binder RL: Liability for the psychiatric expert witness. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. All. IN. Inevitably. MA. South Bend. Babitsky S. 2008 Ball D: Theater Tips and Strategies for Jury Trials. provide at least some information useful for the psychiatric expert. SEAK. 2003 Babitsky S. 1997 Babitsky S. SEAK. MA. SEAK.
Danvers. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Tageh Press. 2003 . New York. DC. et al: Expert Witnesses: Direct and Cross Examination. MA. CA. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. 2007 (Focuses specifically on the testimony phase of expert work. in Learning Forensic Assessment. Baltimore. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness.) Dattilio FM. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Glenwood Springs. PA. 1994 Rabinoff MA. LRP Publications. 2001 Isele WP: Under Oath: Tips for Testifying. 1908 (Purely for antiquarians and those interested in a classic from the last century. useful for checking credentials. American Psychiatric Publishing.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Santa Ana. New York. New York. Horsham. 1995 Kwartner PP.) Gutheil TG. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses.132 THE PSYCHIATRIST AS EXPERT WITNESS. 2008 Rogers R. 2002 (This is designed as the successor book to the present one.) Gutheil TG. Routledge/Taylor & Francis. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. Mulligan WG. Springer. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. NJ. Analytic Press. 1993 Dattilio FM. New York. James Publishing. MD. American Psychological Association. Lippincott. New York. Guilford Press. 1993 Gutheil TG. Williams & Wilkins. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Washington. J Am Acad Psychiatry Law 34:482–491. LRP Publications. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Diamond. Covise LL. Adams KM. Pennsylvania Bar Institute. DC. Washington. 2nd Edition. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. 3rd Edition. New York. PA. Commons ML. Simon RI. Oxford University Press. Mechanicsburg. Wiley Law. pp 565– 588 McHale MJ. J Am Acad Psychiatry Law 29:313–318. 2007. CO. Edited by Jackson R. at a more advanced level. Hillsdale. 2006 Feder HA: Succeeding as an Expert Witness. McClure Company.
All experts should join. 1993 Other Media http://www. Washington. NJ. American Psychiatric Press. Rons SN: Doctors and the Law: Defendants and Expert Witnesses.reidpsychiatry. Washington. and postings.com: Web site of author’s colleague HJ Bursztajn. 2001 . Washington. 2007 Tsushima WT. New York. http://forensic-psych. 1997 Younger I: The Art of Cross Examination. 2004 (Study guide available since 2006. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. links. and links. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. Shuman D: Clinical Manual of Psychiatry and Law. Wiley. Section of Litigation.org: The main Web site for the American Academy of Psychiatry and the Law. 1976 Zobel HB. with multiple resources. http://tncrimlaw. DC. New York. Falmouth. Washington. http://pipatl. DC. Disclosure: This author is a founder. 2nd Edition. Erlbaum. Gutheil TG. MA. WW Norton. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. http://www. Lightfoot.) Simon RI.com: A resource-rich site with articles. VA. DC. discussions. the national forensic psychiatric organization.com: A host of resources by two top attorneys. Gaynor Publishing. http://www. American Psychiatric Press. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. Kochansky J: The Complete Psychiatric Examination (videotape). publishing a vast range of information and offering excellent training courses.aapl. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. Harvard Medical School.html: Another multiple resource site. Anderson RM: Mastering Expert Testimony.SEAK.com/forensic/f_psych. 2003 Simon RI. Mahwah. articles. MD.org: Web site of the Program in Psychiatry and the Law.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. and links. SEAK. Beth Israel-Deaconess Medical Center. J Am Acad Psychiatry Law 35:346–349. American Psychiatric Press. American Bar Association. A compendium of sources. DC.
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there is no generic “competence. on mainframes) and may be used in attempts to impeach the expert at trial.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. such as relatives or executors. consult your retaining attorney. Thus in a suicide malpractice case. Boilerplate Standardized legal language. it has been accepted in actual cases that validate its use. the practical and relevant definitions are provided. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. and so on. two or more lawyers. lab results. It is not derived from the facts of the specific case at hand. Competence The capacity or ability to deal with a certain task. or tradition.” it is always “competence for what?” The criteria for the different competencies are often distinct. that is simply plugged in to the appropriate place.. In reality the actual deposition is the transcript of the deposition.” that is.e. Decedent The person related to the case who has died. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. for example. the plaintiff is the (live) person bringing the suit. interview data. it may consist of records and documents. usually derived from statutes. in which the witness. 135 . Instead. the criteria for competence to make a will and for competence to stand trial are quite different.” Deposition Usually believed to be the actual ceremony. In case of ambiguity. the person who committed suicide is the “plaintiff’s decedent. Competence is decision-specific and usually based on criteria. which will live on in perpetuity (i. it is usually “court-tested. legal documents such as depositions and interrogatories. in the context of discovery. case law.
but a psychiatrist. less ordinary procedures might include covert surveillance of a suspected malingerer. “Hired gun” A term.. or an attorney-psychiatrist team. after the civil or criminal matter is set in motion. if so. says what the attorney wants said rather than objective truth).g. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. IME (independent medical examination) An important part of the discovery process in malpractice. may be used as well. Finding See “Opinion. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. to visit a nursing home where resides a person whose competence is being challenged) and other duties. and the like. the judge(s) and/or jury. in “trial by ambush” jurisdictions this step is skipped. The GAL may be thought of as a kind of utility infielder for the court. . An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. usually exchanged between opposing attorneys to alert them to your projected opinion. disability.136 THE PSYCHIATRIST AS EXPERT WITNESS. Novice experts see this as a misnomer. in which information is gathered by the attorneys in order to prepare the case. investigating in the field for the court to determine the situation leading to the proceeding (e. but this is the established term. The role may include representing an unrepresented party (e. The IME may be resisted by some attorneys. borrowed from western and noir fiction and film. interrogatories.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. challenging the party moving for a particular result. and other medical contexts not limited to psychiatry. Depositions. Fact finder Practically speaking. use of a private investigator to obtain information. since the goal of the process appears actually to be a decision. this limitation constrains the data gathering and the conclusions that may be drawn from the database.g.e. thus decision maker rather than fact finder.” Discovery That early phase of litigation.. See also “Trial by ambush. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. the fetus in an abortion decision). The GAL is usually an attorney. and various motions accomplish some of this phase..
the insanity evaluation is retrospective. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth.” In practical terms. but without actually retaining. because variations from these answers at trial will be used actively in attempted impeachment. the court makes the finding that defines the outcome of the case. retreat to the oath. the whole truth is often supplanted by “the admissible truth. Like other sources of bias. disliked by almost all parties in a case as well as the general public. the whole truth. and widely misunderstood by many of those.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. when confusion sets in. “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. the expert. and the like. promises of much future work if the opinion in the present case is favorable. experts should review these carefully for accuracy as to their opinions. often stereotyped questions put to each side of a civil case by the opposing side to develop answers under oath as a part of discovery. The “seduction” may involve flattery.” of the expert’s efforts. its influence should be resisted by the expert. the “bottom line. In addition. Of course. the oath is a place of safety to which. In a practical sense. Interrogatories A set of formal. the expert can retreat when in doubt about what is going on or where the inquiry is going. these are prepared jointly by attorney and expert. governed by legal criteria that vary by jurisdiction. and nothing but the truth. elaborate dinners and entertainments. The expert offers an opinion derived from the database and training and experience. tell the narrow truth. See also “Standard of care. the witnesses are to testify in court only with testimony that they can swear to. and let the chips fall where they may. sometimes without even informing. There are several . falling below the standard of care in the care rendered in the instant case. Opinion The final phase.” 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. Negligence In a medicolegal context. One of the most challenging assessments in all of forensic psychiatry.
particularly experts. “get the money up front.” which the expert must also know. privilege is narrowly construed as applying in legal or quasi-legal contexts only.” in suggested readings.” “reasonable medical (or psychological) probability. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. to prevent the experts from hearing other testimony. which broadly applies to information that should not be shared with others in many contexts.138 THE PSYCHIATRIST AS EXPERT WITNESS. Sequester The separation of witnesses. thus an attorney or an expert might perform a relevant duty for free.” “reasonable psychological certainty. Unlike confidentiality. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. but they cannot by themselves reform the exploitative personality. administrative law procedures. hearings. . the standard is usually national but may be local—the “locality rule. 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. by excluding them from the courtroom.” Though most attorneys are responsible. SECOND EDITION variations on this ploy.” “51% certainty. Several jurisdictional variants include “more likely than not. a few find ways not to pay you what they owe. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. 2001: “The Phantom Expert. The expert should be familiar with the relevant local standard and its definition. this term usually refers to service without payment. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. Pro bono Short for pro bono publico (for the public’s good). 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. Appendix 4.” and so on. See Gutheil et al. the origin of the frequently invoked mantra. and the like.” An expert testifying about a case must be familiar with the relevant standard.
Because the usual duty of clinicians is to the patient alone. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. and expert disclosures (see “Disclosure”) inform the other side in advance.”) . Ultimate issue The final outcome of the legal process: negligent. not as a valid method of determining one’s standards of acceptance. but the plaintiff has a thin or “eggshell” skull and is severely injured. which involve a victim in addition to the treater and patient. 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). discovery proceedings such as interrogatories. (See also “Opinion. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. Turndown rate The ratio of cases that are. “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. a blow that would ordinarily not be expected to cause harm. insane. guilty. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. The expert proffers an opinion. such as whether a witness should be accepted as an expert for the court.” Jurisdictions vary widely as to the applicability of this principle. usually based on criteria.” Experts should refrain from stating the ultimate issue in their testimony. Tarasoff v. The image is that of a defendant giving a trivial blow to the head of the plaintiff. depositions. these cases. not those that come in for review. The expert has control only over those accepted or rejected. In the majority of situations. are sometimes referred to as “third-party cases. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. after review. Among other goals such as saving time.Glossary 139 Stipulate To concede or agree to a challenged issue. This rate should be seen as a rough guide. but the fact finder renders the finding that embodies the “ultimate issue. competent. etc.” or “duty to warn third-party cases. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. accepted as meritorious versus those rejected as invalid.
“The Problem of Evasive Testimony” in Suggested Readings. SECOND EDITION Voir dire An expression from the French.140 THE PSYCHIATRIST AS EXPERT WITNESS. evasive testimony designed to avoid answering a question directly or at all. to say” but more relevantly. Chapter 4 (reference 11). See Gutheil 2007. Waffling An expert’s rambling. . discursive. Work product A designation of privacy for material that is part of the attorney’s trial strategy. in the present context. the purpose is to allow preparation of cross-examination or rebuttal. 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. work product occupies a special category of privilege and is usually not discoverable. literally “to see. There are a number of possible causes. This may apply to certain communications between expert and retaining attorney.
61 retainers. 115 Alarm clocks. 77 Bias. 106 American Psychiatric Association (APA). 7. 8. 32. 116 Alcoholic beverages. 23–24 Air travel. 80 Body language. 4–5. 18 Billable time. 87–88 Admissions. 17 problems of loyalty and identification.” 106 Audiotaped interviews. 49. 117 “Alibi” issues. Dress and appearance Attorneys communication with opposing attorneys. 100–101 Alternative scenarios. 52. 74. 115 airline guides. 16 meeting with before deposition. 82 negotiations with retaining attorney. 4. 4–5. 68 honesty of. 70 “Attorneys’ Guide to Experts. 44. 115 courtroom. 9 nonsexual seduction. 26–28. xiii. 60 Addressing judge at end of testimony. 68–69 Attire at trial. 70 merit of retaining attorney. 105–106 loyalty to retaining attorney. See Clothing. 74 Accuracy. 78. consulting with retaining attorney during. 37 Alterations ethical. 63 Blackboard illustrations at trial. 82 of reports. 14 Adversarial context. 37–38 Ambivalence. 62 needed for forensic functioning. 59–60 Advances minimum fee. 104 Advocate for truth. use of. See Ethics informing of availability as forensic expert. 45. 47–48 depositions. 52. 112 first class. 105 Assumptions. 16 work product privilege. 4. See also Demeanor 141 . 113 Bipolar disorder. 30–32 misunderstanding of clinical issues.Index Accessibility airplanes. 105–106 American Board of Forensic Examiners. 100 of expert opinion. 25 Beat the Press (Fulton and Guyant). 121 American Academy of Psychiatry and the Law (AAPL). 65 fighting at depositions. ethical model. 49. 16–18. apparent. 15 Agency relationship. 115 meals. 82–83 Announcement of forensic practice. 3–4 Advertising. 105–106 Analogies and metaphors. 19 hindsight bias. 24–29 social relationships with. 106 Beepers at trial. 35 Background of expert. 16 treater bias.
48–49. how to handle in written reports. 113–114 Case name or citation in written report. See Attorneys Countertransference. 28 Correction of answers at depositions. or experts. 85–86 Brokerage organizations for expert witnesses. 34 misunderstood by attorney. 82 Breaks and recesses depositions. 48–49 involving the insanity defense. 33–34 merit of attorney. money. 83 breaks and recesses during. 61. 18–19. 116 Coaching. 33–34 threshold question. 58–59 avoidance by attorney. 82 Clothing packing for travel. 86 Borderline personality disorder (BPD). 97 Case review. 62. 82 Child abuse issues. 74 Code language between attorney and expert. 70–71. 19 Capital criminal cases. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). example of outline. 81 Communication with opposing attorneys. 14 Carry-on luggage. 47–48 Competence issues. or data. 107 Brokering a case when unable to handle it personally. 118 Criminal cases capital cases. 118 Counsel. 33 The court. 5. 99–100 Consent Form for Forensic Examination. 65. 108 Browbeating by retaining attorneys. 73–79.142 THE PSYCHIATRIST AS EXPERT WITNESS. 83 Courtrooms. 86–87 Cross-examination. 29–40 documents. 103–108 Camera. 61 trial. 59–60. 24. 137 report. 66 Concessions at depositions. 77. See also Video depositions gazing into the lens. 13–14. 30–32 “nothing to go on” problem. 7–8. 40 Child custody cases. 23 Clinical material. 28–29 Contingent fees. 65–66 Confidentiality breaches as basis for suit. 32 Building a practice. 121–123 Constraints on time. xiii. 30 Causation. letters to. litigants. 30 validity of case. SECOND EDITION Complaint. 64–65 Cough drops or throat lozenges at trial. 85–86 code language between attorney and expert. 71 Candor. 33 scheduling. 17. 44 nonconfidentiality warnings. 77 unpacking at hotel. 101–102 Crises while testifying at trial. 116–117 metal detectors at. 69 Concentration at depositions. 25 Conflicting stories from parties in case. 34 Compound questions at depositions. 99. 4. 135 . 77 Change of opinion. 100 Consultation services. 38 Conflict of interest. 32. 4 Class action cases. questions about. 14 criminal responsibility cases. 113–115 trial appearance. 39–40 Cellular telephones. 16. 81 delaying tactics. 95 Court reporters. review of. legal.
135 admissions in. Reports. See also Interviews. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 66 concessions. 66–67 locking in/limiting expert’s testimony. 62–63 concentration during. 64 language/word choice. 74 Disclosure issues. 79–80 restructuring. 59–60. 91–92 privileged information. 57–58 nondiscoverable material. See also Depositions interrogatories. vast amounts of now stored online. 64. See Parties in case Demeanor cross-examination.Index demeanor during. 59 past. 64–65 curious questions. Written documentation Doing no harm. 60 malpractice suits. 64 opinions and their bases. 47 nonverbal responses. 65 correction of answer. 85 reasons for. 61. 68 treatises. 38 of experts at depositions. 70 “gerrymandering” clinical data. 34 stenographers in. 75 Decision to take case. 5–6. 66–67 demeanor of deponent expert. 77–79 Departure from courtroom. 31 Database. Privilege Discovery. 83 trial. 114 . 64 objections. 65–66 consulting with retaining attorney during. 85 Dangerous examinees. 61 compound questions or answers. questions about. 97–98 Daubert challenge. 64 priority. 58–60 inappropriate questions. 65 questions and answers. 8 Double billing. 58–60 goals of opposing attorney. Records leaving behind after trial. 83–86 “yes” or “no” questions. 64–65 later evidence affecting opinion given at deposition. 68–69 breaks and recesses during. 68 of experts at trial. 88 trial preparation. 85 quotes. 57–72. 115 access to courtroom. 117 Drugs. 135. 59 limits of expertise. 80–82 leading questions. 80–82 of examinees during interviews. 66–67 143 interruptions. 59–60 assumptions. 113 Dress and appearance packing for travel. 34 assessing. See Records. 26 pauses before answering. 68 final preparation. 135. See also Confidentiality. over-the-counter. 77 unpacking at hotel. 116 Drinking. 4–5. 69–70 videotaping of. review of. 135. 84 pauses before answering. 63 goals of expert being deposed. 87–88 Depositions. 73 use during trial. 69 Direct examination. 62–63 reviewing. 58–70. 92 Disabled individuals access to airplanes. 29 Defendant. See Privilege Documents. 76–77 written documentation to give listing of. 68 fighting by attorneys at. 113–115 trial. 34.
Reimbursement for travel Expert witnesses. 16 marketing a forensic practice. litigants. See also Conflict of interest advocate for truth model. 75 Ethics. 15 remaining neutral. doing none. 129–130 standard fee agreement. 32 Good writing. See also Written documentation Forensics. 113 Fitness as expert. for travel. 38 “nothing to go on” problem. sample. 80 Fabrics. 2 Forms detailed fee agreement. 115 Flip charts at trial. 50–51 interviews. 8 Hearsay. 18–19 honest advocate model. 100–101 billing. See Meals Emotional injury cases. 82 nonconfidentiality warnings. 15 loyalty to retaining attorney. 67 Expenses. 115–116 Humility factor. 30–32 of experts. 44 . 88 Fees.144 THE PSYCHIATRIST AS EXPERT WITNESS. 15 Honesty. sample. ethical model. SECOND EDITION Family or friends. 6. See also Ethics of attorneys. 103–108 Forensic reports. 37 Eye contact at trial. 13–14. 129–130 standard fee agreement. 25 External consistency of story. 95–96. 78 Eating. 28 Fairness. deposition and trial. xiii–xiv evidence in. 1 functions. 82 Hotels. principles of. 17 special expertise of. 28. 61. 28. 87–88 Evidence. 80 Flying. See Fees. staying with. 136 spotting the other side’s. 67 marketing. 25 Honest advocate. 28. of sexual misconduct. 33 oaths. 61. 60 False allegations. 96 Harm. See also Hired guns definition. 113 contact with opposing attorneys. See Meals Forensic countertransference. 6 High-profile cases. scholars in. 24 Entrance of judge. always soliciting. 62 Hired guns. 125–128 Gestures at trial. 15 social relationships with attorneys. 25 Flashlight. sample. 49–51 examples. 16 turndown rates. See Countertransference Forensic practice. 107 new facts at trial. 14–15 Etiquette at trial. 1–3 Experts honesty of. importance. 52–55 History of expert. 9 Humor. 78 Global requests. 125–128 travel costs. 28. 15 altering reports. 75–79. sample. or experts. 36 “False memory” cases. 49–50 Employment relationship. 44. 13–21. See Air travel Food. 5. 112 Failure of retaining attorney to pay fee. 38. 115 Feedback. 47–48 cross-examination. principles of. 7–8. 112–113. 51–52 Hindsight bias. issuing. 26–28 detailed fee agreement.
38 emotional injury cases. 107 strategies. See Hotels Loyalty to retaining attorney. 137 Insurance challenges. 79. 45 locality rules. 35 order of. 18 Integrity. 16 Insanity defense in criminal cases. 97 to the court. 16. 6 entrance of. pros and cons. 105 ethics. 106 listings. 46–48 social service history. 35 Involuntary gestures at trial. 106 Locality rules for standard of care. 119 Materials. 106 publishing/writing. 18–19. 36 internal consistency of story. 115 Lawyers. 84 Leaving courtroom. 116–117 Media coverage and cases. 36 Internal consistency of story. 34–38 “alibi” issues. See Attorneys Leading questions on crossexamination. 99. 36 presence of attorney. review of. 45 Juries. 138 Marketing a forensic practice. 137 Intervening causes. 79–80 Jurisdiction-specific language. 43–48 creating timelines for. 87–88 dismissal by. 2 entrance. 40 videotaping or recording. 34 . 37 alternative scenario. for travel. suspending. 47 elements of malpractice. 106 specialization. 39 Interviews. 52 Malpractice suits. 86 Malingering. 51–52 Medical records. 86. 107 Interference of attorneys during interviews. 103–108 announcement of practice. 87–88 Lecturing as marketing tool. 37.Index Identification with retaining attorney. 91–92 recording. 36 Interrogatories. importance of. 98 145 Laptops. 49 demeanor of examinee. 107 lecturing. 95 Likelihood principle. 49–50 external consistency of story. 6–7. level of scrutiny. 57–58. 115 during trial. 36 nonconfidentiality warnings. 45 Lodgings. 7 Listings as a marketing tool. 37–38 criminal responsibility cases. 45–46. 35 priority. 47 standard of care. 45 records. 38 note taking. 106 Letters to attorneys. 82 Jet Smart (Fairchild). 112 Judges addressing. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 105 Judgment. 34 depositions. 53. 34–35 plausibility of case. 49. 35 retention of records. 112 Meals airplane food. 83 testimony before. 75 informing of availability as forensic expert. 48–49. 78 Jargon. 37 interference. 75 respect for. 34–35 plaintiff.
while traveling. 24–29 background of expert. 82. 15. See also Confidentiality deposition. 68 Pauses before answering cross-examination. 77 keeping notes. 26–28 fitness as expert. 50 Preliminary reports. 113–115 Parties in case case name or citation in written report. 64 Peer review for testimony. 4–5. consulting with retaining attorney at. See also Web sites storage of past depositions. 118 Metaphors and analogies. 40. 88 The Packing Book (Gilford). See Parties in case Plausibility of case. 85 depositions. 112 Packing for travel. unfailing. 24–25 timing and scheduling. 24 request of retaining attorney. 8 Pens and pencils at trial. 97 . 91–93 Precautions. 71 Oaths. 49–51 Morality. 57–58 Objectivity. 47–48 Outcome of case. 36 Politeness. 91–92 Privilege. 25–26 Priorities. See Emotional injury cases Physicians’ Desk Reference (PDR).146 THE PSYCHIATRIST AS EXPERT WITNESS. 64 interrogatories. 86 Nonconfidentiality warnings. 35. not compromising. questions of. 52–55 contact with. See Trial preparation Prescription medications. 5. 14. SECOND EDITION Online. 117 Metal detectors at courthouses. 69 Plaintiff. 16–18 clinical and forensic issues. writing for. 44 Melatonin. 54. 65. 97 Preparation for trial. 115 Preexisting illnesses or conditions. 82 interrogatories. 74 Prior testimony by expert. 100–101 Posttraumatic stress disorder. 138. See also Marketing a forensic practice New facts at trial. 137 Negotiations with retaining attorney. 49–51 Practice pointers. use of. 17–18. 104. 38 Nonsexual seduction. 80 Misunderstanding of clinical issues by attorney. 13–14. 58–60 Opposing expert witnesses. 82–83 Microphone use at trial. 47 during interviews. 70 Medication issues as basis for suit. 74. 25 bias. effect of. 137 Note taking importance of. 45. 106 Negligence. 47–48 plaintiff interviews. 67 National Forensic Center. 81 Postreport negotiations. 16. 25 initial contact. 15 Objections depositions. goals of. 117 Pretrial conferences. 77 Personal injury cases. 97 communication with opposing party. 137 depositions. 39 vulnerability of plaintiff (“thin skull”). 82 Mitigation of damages. 24 decision to take case. 26–28 Networking. 66. 65 work product privilege. 30 Occasions. 26 Opposing attorney. 57–58 trial. 34–35 Patience. 29 fees. 114.
See also Written documentation Reputation of expert. 9. 6 Scheduling issues. 3 Suicide malpractice cases. 95–102. xiv. 91–93 personal conflicts. 108 Roles of expert. 104–106. 26–28. 75 Sexual misconduct cases. 34 retention of. 18. 79. 46 criminal responsibility cases. 31–32. 54. showing toward juries. 131–133 travel books.. 9. reasonable medical certainty. power of. traveling with. 97–98 Supporting data for written reports. 17–18 Self-serving behavior. 113 Relatives. 93 Seating at trial. nonsexual. 100 Recesses. 15. 51–52 Quoted passages. 7. 40 Returning calls. 14 147 Retaining attorney. 81 Sworn statements. suggested. See also Court reporters in depositions. 70 Skepticism. See Breaks and recesses Recorded interviews. 25 Required action. 138 of witnesses. 25 Reasonable medical certainty. See also Malpractice suits Suitcases. 38–39. 131–133 travel books. importance of. negotiations with. 49 database of. 82 Silent treatment. 48 Sleeping. 68 Storytelling. 106 Publicity and cases. 112–113 Santayana. 108 written documentation. 117 Social relationships with attorneys. 54 Resources for suggested readings. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). review of. 79 Stenographers. obtaining in advance. 92. 112 Reports. staying with. See Oaths . 97 Rehearsing testimony. 73–74. See also Packing for travel Supplementary reports. 99 Surprised expert. 82. 40 case review.Index Pro bono work. See Negotiations with retaining attorney Retention of records. 33–34 CATO model for. 24 Publications by expert. 3. Robert I. 44. 106 Psychiatric malpractice suits. 49 Sequestration. 66 Simon. 85 Readings. 6–7. 47 Socratic method. 107 Standard of care. 138 Professional meetings. response to. 112 Reality-testing. 6. 16 Social service history. 25–26 as marketing tool. 28–29 Running shoes. 112 Respect. level of scrutiny. 5–6. 53. 40 social service histories. 7. 6 Specialization. 138 Rebuttals. 35 Records. 33. 115 Rental cars. 138 Standard of proof. 36. 74 Reimbursement for travel. 119 Site visits. review of. 107. 34 malpractice cases. 46–48 medical records. 64. maintaining appropriate. George. 47 Referrals. 83 Retainer. 113–114. 43–45. 45–46. 75–76 Seduction.
87 . 78 illustrations. 80 language/word choice. versus expert. effect on standard of care. 73–74 practice sessions. 77 what to bring into court. 108 wake-up calls. See Crossexamination demeanor at. 118 Time creating timelines. 117–118 testimony. 112 Travel expenses. 28–29 Third-party cases. 86. 118 crises while testifying. See also Cross-examination prior testimony by expert. 112 unpacking. 35 flying. 115 lodgings. 37–38 Trial. 74 rehearsing. 61. 75–76 supplies. 19. or flip chart. 77. 25–26 roles of expert. 60. 78–80 Telephones calls during trial breaks. 77–79 departure from courtroom. 87–88 dress and appearance. 64 for interviews. 44. 91–92 seating at. 77 breaks and recesses during. 80 pretrial conferences. SECOND EDITION cough drops or throat lozenges. 82–83 lunch during. effect of. 82. 112 Traumas. 112–113 travel information. 34 for depositions. 39–40 Travel books. See also Ethics. 116 Treater. 82. 69–70 Treatment recommendations. 8–9 Treatises. 139 Taxicabs. 44 Throat lozenges or cough drops at trial. 77 courtroom. 74 Truth telling. 85–86 conclusion of questioning. 74 presentation. 45–46 Types of cases. 80 new facts coming to light. 73–90 beepers/cellular telephones. 43–56 criminal responsibility cases. 116–117 microphone use. 115–116 meals. 111–118 billing. 51 evaluating. 74 planning. 48–49 emotional injury cases. 26–28 travel time. 80 humor. 76–77. 74. 49–51 Tarasoff-type cases. 112 Traveling. 73–74 language/word choice. 116 Testimony at trial. 13. importance of. 80. 113 Travel service. Honesty Turning down cases. marker board. 85. 8. 92. 74 pitfalls. 74 using database during. 112–115 sleeping. 86–87 cross-examination. 77 etiquette at. 14–15. 35 keeping track of. questions about. 113 examinees. 79–80 timing and scheduling tips. 117 time planning. 76–77 water. 86 pens and pencils. 117–118 Trial preparation. 74 Teaching role. See Meals packing. 77 pointers. 55. bringing into. 77. blackboard. 139 Type of practice expert has. 75–79. 79–80. 74. 77 returning calls. 86 cellular telephones. 81–82 priority. 87–88 eye contact.148 THE PSYCHIATRIST AS EXPERT WITNESS.
97 supplementary reports. questions of.” 2. 100–101 trial preparation. 51–52 psychiatric malpractice cases. 97 conclusion. 100–101 preliminary report. 4–5. 97–98 jurisdiction-specific language. 99 . 70. 82 Values. 43–48 “Ultimate ethical test. 44 White noise. 107 Weight to be given to on-site psychiatrist’s observations. 67 Video depositions. 115 in courtroom during trial. 97 occasions. 64–65 reports. 101–102 database listing. 108 Work product privilege. 100 criminal case. 97 principles of good writing. 7 Waffling in answers. 98–99 postreport negotiations. 96 rebuttals. 104–105. money. Reports case name or citation. 98–99 conflicting stories from parties in case. 116 Water during air flights. 98 letters to attorneys. or data. how to handle. 53–54 Wake-up calls. example of outline. 70–71 Videotaped interviews. misunderstanding by attorney. 97–98 supporting data. 99–100 constraints on time.Index high-profile cases. See also Records. 79. 140 Written documentation. 77 Web sites. 97–98 headings. 97 interviews/items reviewed. 100 referrals. 97 opinion.” 18–19 “Ultimate issue. 140 examples of. 82–83 149 Word-of-mouth referrals. 139 Understanding of clinical issues. 74. 117 Word choice depositions. 35 Visual aids. 95–102. 74 Voltaire.
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