The Psychiatrist as Expert Witness
Second Edition

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

1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Gutheil. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. ALL RIGHTS RESERVED Manufactured in the United States of America on acid-free paper 12 11 10 09 08 5 4 3 2 1 Second Edition Typeset in Adobe’s Optima and Warnock Pro. and that information concerning drug dosages. Thomas G. c1998. I. Gutheil has no competing interests to disclose. American Psychiatric Publishing. II. Dr. For these reasons and because human and mechanical errors sometimes occur. and routes of administration is accurate at the time of publication and consistent with standards set by the U. therapeutic standards may change. Food and Drug Administration and the general medical community. ISBN 978-1-58562-342-6 (alk. VA 22209-3901 www. Psychiatrist in court. cm. Inc. schedules. Expert—United States.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. 2.org Library of Congress Cataloging-in-Publication Data Gutheil. Expert Testimony. Evidence. Thomas G. Companion to: The psychiatrist in court / Thomas G. 1000 Wilson Boulevard Arlington. Forensic psychiatry—United States. 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. p. The psychiatrist as expert witness / Thomas G. Includes bibliographical references and index.. Gutheil. W740 G984pf 2009] KF8965. Inc. Books published by American Psychiatric Publishing. Moreover. however. Inc. .appi. As medical research and practice continue to advance. Forensic Psychiatry.G8 2009 614′. paper) 1. Gutheil. [DNLM: 1. 2. Title. Copyright © 2009 American Psychiatric Publishing. specific situations may require a specific therapeutic response not included in this book.S. — 2nd ed.

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

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

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

3

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

4

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

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

6

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

7

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

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

9

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

10 The Expert on the Road: Some Travel Tips

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

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

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

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

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

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

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

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

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

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

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

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

fundamental fairness. one is guided by its rules. Yet the court may be driven by principles of fairness. absent clear delusions. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said.6 THE PSYCHIATRIST AS EXPERT WITNESS. the common method of the lecture is replaced by another approach: the Socratic method of question and answer.. In contrast. but the Socratic method is one of the mainstays of courtroom procedure. do not demand to be heard: answer all the questions and then stand down when dismissed. hearsay. despite the convoluted. 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. and similar signs. In practical terms the expert witness. — George Santayana Unlike the treatment context. be it moral or monetary. The Socratic Method Although expert testimony has been compared to teaching. experts in court must play by court rules. 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. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process.. always seeking out verification. which preclude admission of certain kinds of data or evidence in the name of justice. The witness should be guided by the maxim: when entering the courtroom. Because a patient in treatment is willingly coming for help. Once again. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. though under oath to tell the whole truth. prejudice. the forensic practitioner is wise to suspect everyone of having some stake in the matter. This painstaking. may be forced into limitations on this promise because of countervailing considerations of precedent. obvious self-contradiction. and the like (4). and to maintain an appropriately skeptical posture. corroboration. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. detailed. hearsay-ridden trail by which it comes to the team’s attention. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. or discorroboration . the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony.

. Other contextual clues about the hired gun are overly candid advertising in legal media (e. makes forensic psychiatrists unpopular with their clinical colleagues.Introduction: What Makes an Expert? 7 for all important facts. or even reasonable psychological certainty).g. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. including forensic psychiatrists. high-profile insanity cases. honest experts should avoid these approaches to . sell time. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. we are paid by time criteria. ask about the local variant. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. but certainty is absurd. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. As a general rule. Rather. it most often means that the expert is sworn to testify about opinions that are true “more likely than not” or that are 51% certain. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. Although some will cry that there are exceptions. for example. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. Reasonable Medical Certainty Doubt is not a very pleasant condition. forensic work is a sideline to our clinical focus. — 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. reasonable medical probability. regardless of its clinical or empirical validity. For most of us. and leads physicians of all specialties observing. All psychiatrists. Note that there may be some jurisdictional variation on this point. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time.

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

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

Wiley. Accessed August 5. Lippincott. J Am Acad Psychiatry Law 33:55–58.10 THE PSYCHIATRIST AS EXPERT WITNESS. et al: The “whole truth” vs. 2008. 2006 Catto G: Acting as an expert witness. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Guilford Press.asp. Gould JW: Clinicians in Court: A Guide to Subpoenas. Am J Psychiatry 154:448–456. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. New York. Available at: http://www.gmc-uk. 1997 Gutheil TG. “the admissible truth”: an ethics dilemma for expert witnesses. MD. 2002 Bronstein DA: Law for the Expert Witness. Williams & Wilkins. New York. 3. 2003 Strasburger LH. J Am Acad Psychiatry Law 25:233–247. SECOND EDITION References 1. 4. Hauser MJ. 2007 Barsky AE. 1997 Gutheil TG. Kane AW: Psychological Experts in Divorce. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Depositions. FL. Simon RI: Narcissistic dimensions of expert witness practice. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Personal Injury and Other Civil Actions. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. DC. MD.org/guidance/ethical_ guidance/expert_witness_guidance. American Psychiatric Press. 8. 6. 1998 Gutheil TG. Harv Rev Psychiatry1:4–5. British Medical Journal 337 (#7664). 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. 2008 . Gutheil TG: Clinical Handbook of Psychiatry and the Law. Suggested Readings Ackerman MJ. Boca Raton. 1992 Appelbaum PS. Gutheil TG. Lippincott. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Lewis Publishers. Williams & Wilkins (Wolters Kluwer). 2005 2. 4th Edition. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. White MS. Baltimore. Washington. Expert’s Quarterly (Winter): 2. 7. 5. J Am Acad Psychiatry Law 34:14–21. Testifying and Everything Else You Need to Know. Baltimore. Bull Am Acad Psychiatry Law 20:153–162. J Am Acad Psychiatry Law 31:422–427. August 2.

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

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particularly an empathically attuned one. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. the ethical expert be13 . rather than help. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake.. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road.” They may forget that this encounter is not therapy. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. examinees being interviewed by a psychiatrist. To prevent such inadvertent abuse or exploitation of the examinee. S-3) THE EXPERT faces many challenges in forensic work. In this chapter.. tend to drift unconsciously into a “therapeutic mode. and its results may harm.[Finally] I realized that each witness chair comes equipped with a stabilizer control.” (1. p. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. First. It is a control easily within the reach of every witness—the lever marked “truth.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.. their ultimate goals in the legal process.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume.

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

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

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

as a clinician. of course. an attorney. this effort may be termed nonsexual seduction. 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. 337). Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications.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. There is no shame in this. Slovenko (5) has suggested: The adversary system of calling witnesses for each side and then examining them by direct and cross examination has evolved specifically for the purpose of exposing shortcomings and biases and probing the accuracy and veracity of opposing witnesses’ testimony. if the countertransference is unmanageable. you are expected to manage your countertransference toward the examinee or the examinee’s actions. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. you may feel unable to examine objectively a child molester. An empirical study aimed at obtaining a sense of the prevalence of this and other attempts at influence revealed that 35% of the admittedly small sample had experienced such efforts “apparently aimed at obtaining a favorable opinion” (4. The . The situation does reveal some complexity. and may add blandishments such as dinners at expensive restaurants and the like. many expert biases are not detected either by the adversary system or even by the experts themselves. 33) However. bias can be exceedingly subtle. Similarly. (p. promises many future retentions. If you are a victim of child molestation. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. for instance. The fact that the position is more or less neutral does not. such as overidentification with the judge or the “system. although not common in practice. eliminate other subtler biasing factors. Somewhat idealistically. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. p. 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. This neutral position is highly desirable for that reason.” Note also that. In this model the attorney lavishes praise on the expert. of course. you should refer the case.

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

Therefore. defend those opinions passionately and fiercely on cross-examination. yes. 261. the limits of your conclusions. 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. and the hypothetical situations under which their conclusions would be different. experts can be separated into two categories. p. the limits of your knowledge. likely be explored.The Expert’s Ethical Universe 19 TABLE 2–1. and the limits of your testimony. the limits of your data. . The less admirable experts. if appropriately asked by the other side. expert testimony is like that. the opposing attorney exerts the push of attempted impeachment. the true extent of their opinions. having become inappropriately enamored of their opinions rather than of the truth. and identification as above. Gutheil and Simon (6). The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. both pull and push must be resisted. and their testimony is often unconvincing. A scene from an old movie revealed an ordeal in which a prisoner had to walk balancing on a thick hawser with threatening swords on both sides. none of this information should be a surprise to your retaining attorney. the limits of your credentials. In the process of cross-examination. Again. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. Such candor may well enhance their credibility. while servants beat him with knotted towels. loyalty.” Your retaining attorney exerts the pull of retention. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. Finally.

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

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

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

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

as indicated by publication. The Expert’s History as Possible Problem Area Are there any blots on your reputation? Your attorney is entitled to know whether any circumstances could prove embarrassing if brought up by the other side in court. the hospital. the attorney will not have revealed confidential information (the names) to you. that is. I recommend hearing about the broad issues of the case first and only then asking for people’s names. Note that your special expertise should exist against a backdrop of your general competence in the field. such cases should be reality-tested for the attorney. if you cannot or should not take the case. In general. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. 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. but subtler versions of personal resonance with a case are not uncommon. and so on. These issues go beyond mere conflict of interest. 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. if your aged mother has just died in a nursing home. but I am willing to become familiar with the issue”). and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. For example. board certification. The Question of Initial Bias The last chapter should raise the question: Is there an element of bias pro or con? Do you know the players.. Therefore. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. which is usually (but not always) clear-cut. no matter how unfounded? Do you have a .g. experience. This example is fairly obvious. Your Fitness as an Expert Should you. what is the psychiatric aspect of this case? A certain percentage of cases will turn out to be ones in which your role is presumed to be that of human lie detector.First Principles 25 chiatrist actually has some knowledge about. personally. 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. I don’t know a great deal about this specific subject. 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. “Look. have you been the defendant in a malpractice suit.

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

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

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

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

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

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

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

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

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

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

warn once. in the unpublished 1996 case of Lailhengue v. This subject is addressed extensively elsewhere (3)..Attorney Larry Cohen (personal communication. but the following vignettes make the point clearly: For example. “I wasn’t myself when I plotted that elaborate armed robbery”? Internal Consistency Does the subject on the side retaining you present a coherent story. behind the examinee). p..An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. distortion..36 THE PSYCHIATRIST AS EXPERT WITNESS. a psychiatrist interviewed plaintiffs with an attorney present.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. Plausibility The first question to ask of the case. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me.. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. 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. and I want to sue him.. 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. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. If the attorney attempts in any way to cue or coach the examinee. March. a mass tort in Louisiana.. be it civil or criminal. 1997) at the University of Michigan Law School reports that some attorneys consider it part of attorneyclient privilege to instruct the client to deny that the coaching ever took place. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. . (4. and so on? . Do the deviations from standard of care sound hokey.g. Mobil. The following are four of the principles that I apply as a generic framework for this purpose. 322) To offer a structure for this stage of the inquiry. as when the complaint boils down to. is whether the case is fundamentally plausible. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e.

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

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

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

what the results were of subsequent events. 1994 Gutheil TG. because they would be hard to replace. and so forth that require revisiting the materials. In addition. two major approaches apply: 1) shred or have a reputable company shred the paperwork. Keeping Records How long should you keep forensic records? A basic rule is that you should never discard case materials until you have asked the retaining attorney if you can do so. If you are discarding case materials. then is sexually abused by a treater. or incident. Washington. work by Pittman and Orr (5) on differentiating serial trauma shows promise. although it has not yet gained broad enough acceptance to be generally admissible as evidence. they may serve you to recall the case at a later point for research or publication purposes. American Psychiatric Publishing. appeals.” there may be subsequent posttrial motions. 2. . 2002 Gutheil TG: Reflections on coaching by attorneys. or 2) return the materials to the retaining agency. and then has other symptoms or more of the same symptoms. SECOND EDITION were of a particular deviation. 2003 3. all case materials except your reports. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. 63 Ohio Misc 2d 533 at 534. mistrial claims. Another good rule is to discard. and what the exacerbations were of preexisting conditions. keep the latter indefinitely. Or. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. what amount and what percentage) of the damages can be assigned to the later trauma which is the occasion for the suit? To take this issue out of the guessing-game arena. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. if any. Further research may reveal other promising approaches (6). and your interview notes.40 THE PSYCHIATRIST AS EXPERT WITNESS. DC. Kirby v Ahmad. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. J Am Acad Psychiatry Law 31:6–9. References 1. with permission. Even if a case seems “over. event. What portion (usually.

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

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than was actually so before the event in question occurred. in this chapter. you already know the person is dead. Sometimes forgotten is the fore43 . Psychiatric Malpractice Cases One of the most critical issues in psychiatric malpractice is the failure to prove all four elements of malpractice (dereliction of a duty directly causing damages): 1) duty of care. More practically.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. 2) breach of duty. 3) injury to the patient. The discussions within this chapter should be considered an introductory survey. for example (the most common claim against mental health professionals). Generally. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. this bias means that the outcome of an event appears as though it had been far more foreseeable. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. once you know it has already happened. In a suicide malpractice case. and 4) proximate cause. 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. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known.

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

Types of Typical Cases

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

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

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

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

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

Doctor. it is inappropriate to call or write directly to the opposing attorney. friendly approach into letting your guard down and discoursing freely on your opinions. To read critically. statements of the arresting officers. For example. or expert. but still relevant. and records of any treating clinicians from points close in time to the alleged acts. eh?” Presumably. a case wherein the defendant had or has a major. you may confront the classical poles of the issue. Out of the entire panoply of available material on a criminal responsibility case. Because of the flow of material and its often fascinating content. Criminal Responsibility Cases In cases of criminal responsibility. remember to consider diminished capacity as an intermediate condition. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. exert the effort to stand back from the process. weighing the logic of the deponent’s responses. “I think you should talk to the retaining attorney. The truly challenging case lies between these extremes. the more helpful it would be in forming your opinion. The appropriate response is.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. is historical material. These would include witness and victim reports. and so on. Of second-rank importance. are the most significant. On occasion. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. In those jurisdictions where the issue exists.48 THE PSYCHIATRIST AS EXPERT WITNESS. what do you think about this amazing case. you can be drawn into the prose by the unfolding drama therein recorded. namely. your attorney’s confidential trial strategy. in my (and almost everyone’s) view. Is this defendant someone who seemed to show . These unethical conversations usually have an informal tone: “So. while reading a deposition. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. 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. SECOND EDITION Although the more information gathered. data gathered at the time of the alleged act. you are lulled by this informal. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. litigant.

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

These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. however. The response “My attorney told me not to” conveys its own obvious message. may be relevant. He claimed to have full-fledged PTSD. Not only might these provide a context for the injuries claimed. In this situation. The shopper then may sue the store for harassment and consequent emotional harms. 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. and startle responses. 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. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. only to find that the goods are legitimately accompanied by a receipt. I . too. Next to the small table where we were sitting. as a result of the mugging. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. History. Such a search can be embarrassing and humiliating to anyone. SECOND EDITION their own accord and some when given this advice by their attorneys. avoidance. especially idiosyncratic history. 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. A question you should ask your interviewee is. “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. Finally. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. This history may represent the plaintiff ’s “thin skull” (i. you again often encounter the previously described problem of factoring out the effects of serial trauma. preexisting vulnerability. I had to interview him in his home because he claimed to be phobically homebound. with intrusive flashback memories.50 THE PSYCHIATRIST AS EXPERT WITNESS. These “critogenic” (“law-caused”) harms often cloud the picture of the claimant’s actual damages caused by the defendant(s) alone (9) and must be factored out. For example.e. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. but they may also be relevant to assessing damages or preexisting conditions. The interview took place in his basement recreation room.

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

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

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

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

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

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

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. there is the period known as discovery. 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.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. 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. preparing for what to expect from the various witnesses and documents. In both cases. the attorney will likely write the actual prose of the 57 . use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. if any. From the viewpoint of the expert. Attorneys probe and define the limits of their cases. Under some circumstances.

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

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

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

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

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

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

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

have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. 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. pp. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. the entire deposition takes place under oath and under penalty of perjury. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. Therefore. In a suicide malpractice case.” Of course. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. . if you are concerned specifically about a matter of privilege that may govern your answer. . No. (The question of coaching is more extensively addressed elsewhere [5.) When to Throw It Away In my consultative experience. I’d be lying. . you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. When in doubt. Two points about this problem should be kept in mind.Discovery and Depositions 65 it on the record. would you agree that a patient’s sui- . .6]. because no two fractures are exactly alike. the deposing attorney may ask. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching.To tell the truth. this may be phrased as when to throw away the “throwaway” questions. but I can’t say that any of them were [sic] precisely like this one. As a deponent witness..” (3. he could accurately answer in the negative. I tell a lie.. “Doctor.. Therefore. However. exercise this option. the doctor might answer: “Well. 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. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. Second. First. . but leaving the error on the record means having to retract it on cross-examination. To err is human. the deposition may be paused for that consultation.If I said that. Therefore. . where you are retained by the defense. for example.

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

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

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

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

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

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

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

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

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

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

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

ornamentation. eccentricity. Above all. Finally. the bailiff usually will keep it filled. during breaks. what you wear should fit well and be well broken in. depositions.e. the bored juror. 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 I need the actual page or quote. testifying is thirst-provoking work. Arranging for a cup. if you must. glass. showing off how busy you are and how court is taking you away from really important matters. or if you must. I take to the stand a one-page table of contents (i. A handy pen or pencil. 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. Indeed. the defendant or . affidavits. or carafe of water is an excellent idea. This table of contents enables speedy reference to key facts. For depositions of less central players in the case. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. in the sense that you are usually under observation by someone—the bailiff. your mode of dress should convey the fact that you are a professional in the courtroom on business. I can use my table together with the attorney’s copy of the deposition. and similar data. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. It is unclear whether either strategy is superior to the other. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. Stick to the conservative business mien.The Expert in Trial 77 (pruned to relevant periods if needed). Avoid either ostentation. do not wear new clothes. and check in. ensure that they are turned off. and you will not go wrong. highlighting marker. Arrange appropriate coverage so that you do not have to worry about being reached. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. perhaps comfort should rule. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. and cutting-edge high-drama fashion or excessive informality. What to Wear Experts tend to fall into two general categories: 1) those who try to look like lawyers and 2) those who try to look different. If you are completely uncertain about what to wear to court. Demeanor Being on the stand is not unlike being filmed. Do not wear or carry your cellular telephone or beeper..

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

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

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

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

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

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

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

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

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

If you want to say. Instead.84 THE PSYCHIATRIST AS EXPERT WITNESS. but in this instance it is not. Throw it away.. or the answer may be obvious from the question (i. interrogatory. It is better to say. such as the previously listed leading questions. attorneys do not perform this simple but effective maneuver. the question answers itself ).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. what you say is often true in other cases. never ask a question to which you do not already know the answer. The tight rein on which you are held may make it difficult to get your opinion out there. isn’t that right. which may be asked on cross. “That’s generally true. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. First. “Although the present case is a clear exception to that rule. ask only questions to which only one answer is possible (fittingly. however.” are almost always answered yes on the theory that almost anything is possible). as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. Even those attorneys who opt to engage in cross-examination are usually (but.”) or exhibitionism (“Watch me shine!”). or publications. The following are some examples of the last (all are leading questions. SECOND EDITION Most often. and even the attorney’s competitive feelings directed toward the expert.. equivocating hurts you.” . can they not?” • “Another expert might come to a different conclusion. questions beginning “Is it possible.e. deposition. the attorney’s wish or need to have the client see the attorney doing something. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. or alternatively. the attorney asks closed questions. The attorney may know the answer to a particular question from the expert’s report. surprisingly.” the attorney may move on to the next question after you have said. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off.. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. the attorney’s competitive strivings with the opposing attorney or firm. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. no problem. “that’s generally true” and you may be too flustered to challenge the action. not always) aware of two fundamental principles that should guide this activity.

” This response may be foreclosed by the judge directing you to answer anyway. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. Breaks During breaks that occur in the middle of cross-examination. a question will require more time for prolonged thought or searching of your memory. to be sure you are clear about the question. state that you cannot answer yes or no. and a mere yes or no may fail to convey the “whole truth. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . we are going to take our midmorning break right now.” “no. If either will do so.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). this type of questioning means that you have only three answers available: “yes. I seriously recommend that you try to look as if you are thinking to clarify for the jury what this pause in the proceedings is all about and to allow those jurors who have dozed off to be awakened by the sudden silence.” Listen with intense attention to the question. We’ll reconvene in 15 minutes. Practically. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. the attorney may quote something that you wrote or lectured on. say it. and to allow your attorney to object.” and do so. a judge may even decide to declare a recess: “While you are thinking. if needed. At times. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. Doctor. Always ask to see the context if you do not immediately and completely recall it. You took an oath to tell the whole truth. some attorneys advise not discussing your testimony.” The break gives you ample time to think. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. consequently. or have you dozed off? It is best to state. to consider your answer carefully. At such moments. Quotes On cross-examination. if not. The key word is truthfully. some sources suggest answering at the outset. and think seriously about whether yes or no will represent the whole truth. “I’m going to take a moment to think about that. Scholars liken agreeing to this either-or approach to signing a blank check. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination.

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

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

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

The Expert in Trial 2.

89

3. 4.

5.

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

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

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

CHAPTER 7

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

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

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

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

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

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

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

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

A typical conclusion in a malpractice case. the overall basis is described as both the database (all the material reviewed in the case. SECOND EDITION formed and their date and length. about the disposition. all medical reports. all depositions). or other) is free to stop there and make decisions about future directions in which the process should go. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . (or.98 THE PSYCHIATRIST AS EXPERT WITNESS. 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. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. it is my professional opinion. attorney. for example. and so on. that. logical grouping (e. Note the wording. First. .. or according to some natural. in the treatment of (plaintiff ). Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. you are free to choose your favorite. The remainder of the report is thus treated as optional reading. 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. no convincing case has been made for the inherent superiority of either approach. Although each group has a rationale. held to a reasonable degree of medical certainty. It is important to couch your conclusion in the explicit jurisdictionspecific language defined in case law or statute (your lawyer should inform you what this is) and to state it according to the standard of reasonable medical certainty (or its local variant) to render your report material and admissible.. The rationale for placing the conclusion 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. chronologically.g. The documents may be listed alphabetically. including interview data) and your total clinical background of training (what you were taught) and expe- . might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience.

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

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

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

19. Guilford Press. 22. New York. 2007. 20. 1987. 21. THE PSYCHIATRIST AS EXPERT WITNESS. Wiley. 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. Petrilla J. 24.102 18. Hess AK. report writing and expert testimony. et al (eds): Consultation. pp 577–605 Weiner IB: Writing forensic reports. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. Poythress NG. 25. Edited by Weiner IB. Am J Psychiatry 143:164–169. 1986 Melton GB. 3rd Edition. New York. 23. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. in Handbook of Forensic Psychology. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. MA. pp 511–528 . SEAK. Falmouth.

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

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

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

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

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

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

Massachusetts.. New York. 1997 Feder HA: Succeeding as an Expert Witness. I disclose that I have lectured for SEAK numerous times over the years. Tageh Press. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing.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. Glenwood Springs. . Inc. WW Norton. out of Falmouth. CO.

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

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

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

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

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

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

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

) Gutheil TG. James E: The Secrets of Simple Packing (VHS videotape). SECOND EDITION removal. 2003 2. J Am Acad Psychiatry Law 29:202– 206. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. CA. Although some of the pointers in this chapter probably state the obvious. Flying Cloud Publishing.: Expert witness travel dilemmas: a pilot study of billing practices. Celestial Arts Publishing.118 THE PSYCHIATRIST AS EXPERT WITNESS.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. San Francisco. New York. Jossey-Bass. or refreshment. Miller PM: Expert witness billing practices revisited: a pilot study of further data. 1996 . Gilford J: The Packing Book: Secrets of the Carry-On Traveler. Magellan’s International. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. 3. Seattle. CA.) St. References 1. or throat lozenges. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. 4. 2001 Simon RI. et al. I hope that these tips make your travel easier and less surprising. 5. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Psychiatric Annals 33:302–306. Santa Barbara. J Am Acad Psychiatry Law 26:21–26. Berkeley. with the emphasis on safety and security issues. Commons ML. 1998 Gutheil TG. 1994 (An excellent guide to what to take and how to pack it. 1988 (Incredibly detailed. WA. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Revised. Villard. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. cough drops. CA. Commons ML. sample wardrobes and general travel pointers included as well. mints. Ten Speed Press. and a headache remedy for the obvious problem.) Savage P: The Safe Travel Book. Berkeley. I welcome your suggestions and favorite travel tips. Slater FE.

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

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e. supplied for consideration. and the examinee’s attorney’s attestation that the examinee understands the form (i. clarification that the forensic examination is not the practice of medicine. is likely to be competent to consent to the interview). The main points about the form are the use of basic language. I read it or have the examinee read it at the start of the interview and answer questions..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. 121 .

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

free to show it to me. he/she appears competent to understand it. 20 . Signed. or the court as provided by law. a court officer. Dr.Appendix 1: Consent Form for Forensic Examination 123 5. of course. that individual is. 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. Gutheil’s retaining attorney. 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 .

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

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

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

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

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

If the foregoing fee basis meets with your approval. All travel shall be by first-class conveyance. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. messenger services. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. Larry H. SECOND EDITION rates will apply to portal-to-portal travel time. Strasburger. compensation for my time in giving testimony shall be as follows: I shall be compensated at the rate of $ per half-day (4 hours or any part thereof ) or $ per full day (in excess of 4 hours). For depositions and court appearances requiring travel beyond the Boston area I shall be compensated at the rate of $ per calendar day plus all expenses. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. American Board of Psychiatry and Neurology Diplomate. Time spent in preparing for testimony shall be billed at the hourly rate specified above. literature research.D. please so indicate by signing this letter and returning it to me with your check for the retainer. and all travel expenses will be reimbursed. as prescribed by statute. postage. photocopying. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Nor shall such failure relieve your obligation to have on deposit. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. along with a listing of out-of-pocket expenses. Diplomate. prior to my testimony. court order. Sincerely. Please keep a copy of this letter for your records. expert or otherwise. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation.130 THE PSYCHIATRIST AS EXPERT WITNESS. including secretarial service. I will send you a monthly statement. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. court rule. setting forth the nature of the services rendered since the prior billing. no refund of the retainer deposit will be made. long-distance telephone calls. Any excess over the retainer balance is due upon receipt. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. the retainer discussed above. M. etc.

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

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

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

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

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

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

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

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

work product occupies a special category of privilege and is usually not discoverable. This may apply to certain communications between expert and retaining attorney. evasive testimony designed to avoid answering a question directly or at all. to say” but more relevantly.140 THE PSYCHIATRIST AS EXPERT WITNESS. See Gutheil 2007. the purpose is to allow preparation of cross-examination or rebuttal. Waffling An expert’s rambling. in the present context. discursive. Chapter 4 (reference 11). . a subexamination before or during the trial in which the opposing side attempts to get a sense of what the expert plans to give as testimony. “The Problem of Evasive Testimony” in Suggested Readings. literally “to see. There are a number of possible causes. Work product A designation of privacy for material that is part of the attorney’s trial strategy. SECOND EDITION Voir dire An expression from the French.

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

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

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

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

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

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

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

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

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

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