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The Psychiatrist as Expert Witness
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D. Harvard Medical School Boston. Gutheil. DC London. England . M.The Psychiatrist as Expert Witness Second Edition Thomas G. Massachusetts Washington.
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. For these reasons and because human and mechanical errors sometimes occur. The psychiatrist as expert witness / Thomas G. Books published by American Psychiatric Publishing. Companion to: The psychiatrist in court / Thomas G. Gutheil. specific situations may require a specific therapeutic response not included in this book. Inc. Food and Drug Administration and the general medical community. Includes bibliographical references and index. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Expert—United States. 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.G8 2009 614′. [DNLM: 1. VA 22209-3901 www. W740 G984pf 2009] KF8965.appi. Forensic Psychiatry. and routes of administration is accurate at the time of publication and consistent with standards set by the U. and that information concerning drug dosages. I. Copyright © 2009 American Psychiatric Publishing. ISBN 978-1-58562-342-6 (alk. 1000 Wilson Boulevard Arlington. .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. Gutheil has no competing interests to disclose. — 2nd ed. paper) 1. 2.. II. American Psychiatric Publishing. c1998. Gutheil. cm. Dr. Title. Gutheil. Moreover.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Psychiatrist in court. Evidence.S.org Library of Congress Cataloging-in-Publication Data Gutheil. schedules. however. As medical research and practice continue to advance. Inc. 2. Expert Testimony. Thomas G. therapeutic standards may change. p. Thomas G. Inc.
.To my children and the hope of the future. To Shannon. truly the wind beneath my wings.
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. . . . . 16 . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . 7 Treater Versus Expert . . . . . . . . 3 The Prime Question . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . .Contents About the Author . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . .
Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 The Expert on the Road: Some Travel Tips
for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Recipient of every major award in the forensic field. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center.. 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. M. Clinical Handbook of Psychiatry and the Law. he has received local and national writing and teaching awards.D. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. coauthored with Paul S.About the Author Thomas G. Appelbaum. and a Distinguished Life Fellow of the American Psychiatric Association. the textbook. M. and now in its fourth edition. received the Manfred S. Through more than 250 publications and many lectures and seminars in national and international fora. Harvard Medical School. xi .. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry.D. Gutheil. he has taught many clinicians about the interfaces between psychiatry and the law.
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it provides tedious stretches of waiting and inactivity. xiii . besides the requisite updating of references and suggested readings. in fact. The Psychiatrist in Court: A Survival Guide. before experience itself has had the opportunity to provide the most durable and valuable instruction. 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. Such service presents many stresses and equally many satisfactions.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. this edition also contains things I wish I had said in the first edition. a model forensic consent form for examination. additional illustrative examples. an expanded discussion of bias in testimony. you might consider this book to be next in logical and chronological order to the companion volume in this series. As an aid to present readers. In addition. expanded definitions of key concepts. that book is a good place to warm up. and cases or principles that I have learned about since the first edition. if you feel shaky about the basics. interspersed with frenzied bursts of action. other changes in this second edition include: a glossary of useful terms. 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. 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. and many a practitioner feels the urge to try out this fascinating realm. Forensic psychiatry is growing in popularity. Often the greatest difficulties in this profession occur at the outset. and at the request of past readers of the first edition. From another perspective. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own.
I hope you find this approach useful. attempts to provide some of that practical. hands-on mentoring and guidance that were not readily available in the past. perhaps— dare I say it—interesting and even fun. Gutheil. you. The more seasoned expert may wish to skim over the more familiar material in the text. You who are in that position are also my audience. in part because they represent material never covered in other sources.D. the novice court goer. the later chapters may yet prove useful. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. whenever possible. SECOND EDITION If your early court experience has not been too traumatic. . for such readers. but choosing to go. Indeed.xiv THE PSYCHIATRIST AS EXPERT WITNESS. concrete advice replaces abstract theorizing. M. Thomas G. and informal discussion in a user-friendly tone replaces scholarly discourse. kicking and screaming. many an experienced expert has informally lamented to a group of peers how laborious was the early phase of practice when the absence of practical instruction required reinventing the wheel for each new challenge. Best wishes for success in your burgeoning career as an expert witness. This new updated edition. drawing on developments subsequent to its first version.
. Harvard Medical School. Larry Strasburger. Candace Love of On-Point Research for valued assistance in compiling resources. Stephen Behnke. Hilliard.” James T. Resnick. I especially thank “Dr. and Ms. and Shannon Woolley for their careful review and most helpful critique and comments. Phillip J. Harold Bursztajn. Esq.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center.D. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work.. M. xv . for permission to use some of his material on writing for court. Ellen Lewy for absolutely indispensable assistance with the manuscript. to Drs. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. and to Ms.
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More narrowly. In the courtroom setting. the question of what makes an expert witness is more complex. in contrast the expert is entitled by the role to draw conclusions. even if those conclusions are based on others’ observations. clinically defined. is a psychiatrist who uses particular skills. For example. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. the concept of a psychiatric expert witness.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. to provide information and understanding relevant to the legal system’s concerns. In this book. that is. an expert witness may review a chart filled with other clinicians’ observations 1 . This essentially didactic functioning—more closely resembling teaching than anything else—often requires intellectually bridging the gap between two widely divergent realms of discourse and th ought: psychiatry and law. knowing a lot about a certain topic and having extensive experience therein. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. the question “What makes an expert?” seems to answer itself: expertise makes the expert. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. both clinical and nonclinical. Indeed. 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.
SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. Under this model. not the ultimate finding that a judge or jury decides. Indeed. I’d want to be treated by this person because he/she makes sense. 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 questions can only be answered by a specialist.. competence. about matters that are beyond lay knowledge or decision making. For that matter. I believe this person.” This issue is discussed further in later sections of this text. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context.. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. at times.I do not want someone who [merely] teaches others about it. A leading plaintiffs’ attorney described his need for an expert in this way during a lecture: What I think you want the jury to feel when you have an expert in front of them is: “Gee. such as competence or insanity. and so on. then the judge or jury. that is.2 THE PSYCHIATRIST AS EXPERT WITNESS. the expert is to educate the retaining attorney. from ballistics to the temperature of coffee sold at fast-food franchises.. because what an expert offers is “only” a witness’s opinion. opinionphrased descriptions rather than conclusory statements: “in my opinion. However. if I had this problem. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible.” You want someone who will present in a way that the jurors would be inclined to say this. are the very same ones who had retained me on a previous case. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. Note in regard to the issue of ultimate findings. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. As a rule experts should limit themselves to criteria-driven. I also want someone who has clinical experience and is doing that which he/she is testifying about. . incompetent. the jury is free to accept or reject the expert’s testimony in whole or in part. the court system needs expert witnesses in a burgeoning variety of technical fields. or malingering. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. What I find bemusing is the fact that. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. proclaiming their ultimate faith in the jurors themselves. insanity.
and an adversarial atmosphere are problems to be avoided. the emperor is initially resistant to Mozart’s novel music. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. however. or resolved or otherwise put to therapeutic use. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. The power of storytelling was captured in a movie about the career of Mozart. statistics. are so essential to this work that I review them in the following discussions. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. In this chapter.Introduction: What Makes an Expert? 3 Another scholar. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. 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. conflict between the parties. and throughout this book. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. went even further by listing the functions of the expert as being to 1) tell the story. and the resulting probabilities. causation. 3) make sense out of the law. Mozart begins to describe the opening scene of The Marriage of Figaro. with Figaro kneeling on stage taking the measurements of his marriage bed. and the one often most troubling to clinicians. although basic. a law professor. 4) help the fact finder see the facts. In one scene. Showing pictures of the deceased at communion. Most clinical work occurs in the context of the alliance. and 5) argue the case (1). at family functions. eyes glowing with interest. and so forth would have accomplished this vital storytelling purpose. The emperor leans forward. consider this scene: In the movie Amadeus. he has become engrossed in the story. The foremost of these. oppositionality. 2) make the fact finder want you to win. demographics. Despite his doubts. . pp. some points. clinical entities. is the adversarial context. syndromes. (2. surmounted. “Where are the communion pictures?” Pressed for a less cryptic expression. The highly experienced defense attorney who had retained me was heard to mutter at one point.
both of which reside in every case and every patient or litigant. they are not case-related documents and therefore are protected from disclosure. in a forensic setting. you usually work for the patient. For example. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. I define the term work product to include the notes. In the legal context. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. in the clinical context.4 THE PSYCHIATRIST AS EXPERT WITNESS. in the forensic setting.” a mandate that may trump other claims on your agency. one loser. render highly complex the question of agency. Unlike the search for consensus in the clinical setting. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. and other papers that the attorney generates in the course of litigation. the adversarial context is one of the “givens” in the situation. two of the victims of this concept are ambivalence and complexity. such as child custody evaluations. Com- . as well as the usual lack of a physicianpatient relationship (i. memoranda. even if it is a compromise (3). because that position confers greater neutrality and protection for your efforts. the court situation is a zero-sum game: one winner. whether testifying or consulting. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. Although there may be as many views of the patient as there are team members.. files. Note for completeness that certain forensic contexts. you usually do not). The usual guiding principle in such determinations is “the best interests of the child. 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. In medicolegal work. for whom am I working? Your answer will clarify your location within the adversarial framework.e.e. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3).. The question of whom you work for also will alert you to major pitfalls of bias. must first ask the question. 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. ambivalences may be divided between the two parties in the case rather than felt internally by either. In other words. you work for the consultee (i. Like other consultants. The Prime Question Any forensic psychiatrist. the retaining attorney or court). This specialized topic is beyond the scope of this book.
of data—facts and clinical verities—rather than on idiosyncratic theory or whim. 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. my own or others’ interview notes.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. reports. convicts. In contrast. As we will see later. your personal attorney can always give you advice on nondiscoverable matters. . the forensic perspective almost always extends beyond the individual examinee. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. when in doubt. The issue here is the tension. and relevant literature. between the “whole truth” and the “admissible truth” (4). of course. defendants. fantasy. it should. Most attorneys know not to include details of their trial strategy in letters to you. with exceptions. court-related issues are often matters of public record and public exposure (in open court). or basis. with some exceptions. Therefore. The term also suggests that an expert’s opinion rests on a base. and captured as well in the consent form for forensic examination as Appendix 1. is private and confidential. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. The retaining attorney will guide you in this matter. lest they be exposed prematurely to the other side. legal documents. suspects. Warnings are further discussed in later sections about the interview itself. Although therapy usually transpires within the patient’s self-reported data. correspondence. or impression. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. One trenchant reason for this approach is to obtain corroboration or discorroboration. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. including records. 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. later addressed. be carefully documented. litigants.
the common method of the lecture is replaced by another approach: the Socratic method of question and answer. the forensic practitioner is wise to suspect everyone of having some stake in the matter. Yet the court may be driven by principles of fairness. In contrast. despite the convoluted. always seeking out verification. hearsay-ridden trail by which it comes to the team’s attention. experts in court must play by court rules. absent clear delusions. and to maintain an appropriately skeptical posture. fundamental fairness.. Once again. do not demand to be heard: answer all the questions and then stand down when dismissed. may be forced into limitations on this promise because of countervailing considerations of precedent. This painstaking. prejudice. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. obvious self-contradiction. corroboration. but the Socratic method is one of the mainstays of courtroom procedure. detailed. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony.6 THE PSYCHIATRIST AS EXPERT WITNESS. The witness should be guided by the maxim: when entering the courtroom. Because a patient in treatment is willingly coming for help. which preclude admission of certain kinds of data or evidence in the name of justice. In practical terms the expert witness. 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. though under oath to tell the whole truth. or discorroboration .. 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. hearsay. and similar signs. and the like (4). one is guided by its rules. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. — George Santayana Unlike the treatment context. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. The Socratic Method Although expert testimony has been compared to teaching. be it moral or monetary.
Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. All psychiatrists. — 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. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. Although some will cry that there are exceptions. reasonable medical probability. regardless of its clinical or empirical validity. Rather. or even reasonable psychological certainty). for example. forensic work is a sideline to our clinical focus. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. makes forensic psychiatrists unpopular with their clinical colleagues. Other contextual clues about the hired gun are overly candid advertising in legal media (e. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. and leads physicians of all specialties observing. including forensic psychiatrists. As a general rule. sell time. we are paid by time criteria. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure).Introduction: What Makes an Expert? 7 for all important facts. Note that there may be some jurisdictional variation on this point. ask about the local variant. high-profile insanity cases.. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. but certainty is absurd.g. honest experts should avoid these approaches to . Reasonable Medical Certainty Doubt is not a very pleasant condition. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. For most of us. 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. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular.
Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. case materials.” in this volume). all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. although the clinician is obligated to place the welfare of the patient above other considerations. Often no absolute standard exists by which to measure opinion testimony. the prime directive of the legal system is telling the truth regardless of whether it favors the welfare of the patient or severely damages it. there are significant clinical. it is an excellent way to benefit from the teaching of colleagues and to share ideas. (By the way. legal.8 THE PSYCHIATRIST AS EXPERT WITNESS. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. and ethical incompatibilities with serving as your patient’s expert. “Developing and Marketing a Forensic Practice. There are complexities in this area that should be addressed. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. For various reasons (5–7). summarized as follows (for more extensive discussion of this point. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. and you maintain your ethical compass direction. If a clearly meritless case is offered to you for review. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. and corroborating data. see reference 5 and the appendix to reference 3). because these provide a base of financial stability that enables you to turn down cases. you avoid temptation to skew your opinion. First. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. 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). reasoning.) 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. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. Thus. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . SECOND EDITION finding work.
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. though essential for therapy. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). the expert goes in skeptical. Second. even though this may occur appropriately under legal rules.” Even when the expert is the only source of data that the jury receives. From this viewpoint.. . For these and other reasons the treater should resist serving as the expert witness for his or her own patients. the treater has usually had only the patient’s reports on which to rely. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. as noted in the section on malingering above. Early in my career. Attorneys seem to display a curious indifference to these incompatibilities. rather than the entire forensic database.D. the therapeutic alliance. M.” Although this last is true in certain respects. 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. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. Master forensic psychiatrist Robert Simon. not the engine. thus leaving the jury free to vote its “gut. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. Third. whether because of simple ignorance of the above distinctions.Introduction: What Makes an Expert? 9 the treater gives in court. constitutes a bias for forensic functioning. Indeed. in contrast. treaters called into court may violate the confidentiality of the clinical setting. the wish to avoid paying expert fees that are usually higher than those of treaters. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. The Humility Factor Finally.” This provocative image should be kept solidly in mind. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. 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.
Guilford Press. Gould JW: Clinicians in Court: A Guide to Subpoenas. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. British Medical Journal 337 (#7664). 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. 2003 Strasburger LH. DC. 1992 Appelbaum PS. Simon RI: Narcissistic dimensions of expert witness practice. Washington. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Am J Psychiatry 154:448–456. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Suggested Readings Ackerman MJ. J Am Acad Psychiatry Law 25:233–247. 2005 2. 2008 . Gutheil TG: Clinical Handbook of Psychiatry and the Law. Hauser MJ. New York.10 THE PSYCHIATRIST AS EXPERT WITNESS. Kane AW: Psychological Experts in Divorce. J Am Acad Psychiatry Law 34:14–21. Williams & Wilkins (Wolters Kluwer). Williams & Wilkins. 2002 Bronstein DA: Law for the Expert Witness.org/guidance/ethical_ guidance/expert_witness_guidance. Wiley. Depositions. White MS.asp. et al: The “whole truth” vs. 2007 Barsky AE. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Boca Raton. 7. 3. 1997 Gutheil TG. MD. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Lippincott. 6. Baltimore. American Psychiatric Press. Personal Injury and Other Civil Actions. 2006 Catto G: Acting as an expert witness. MD. 1997 Gutheil TG. J Am Acad Psychiatry Law 31:422–427. Accessed August 5. Expert’s Quarterly (Winter): 2. 4. SECOND EDITION References 1. Testifying and Everything Else You Need to Know.gmc-uk. Lippincott. Lewis Publishers. J Am Acad Psychiatry Law 33:55–58. 1998 Gutheil TG. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. August 2. 2008. Harv Rev Psychiatry1:4–5. Gutheil TG. 4th Edition. Bull Am Acad Psychiatry Law 20:153–162. Baltimore. 8. “the admissible truth”: an ethics dilemma for expert witnesses. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Available at: http://www. New York. FL. 5.
Analytic Press. 1994. Washington. American Psychiatric Press. 3rd Edition. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. 1992 Dietz PE: The forensic psychiatrist of the future. NJ. 2004 Slovenko R: On the therapist serving as a witness. American Psychiatric Press. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. Bull Am Acad Psychiatry Law 2:119–132. 2001 Quen JM: The psychiatrist as expert witness. Bull Am Acad Psychiatry Law 15:217–227. New York. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Washington. 1990 Gutheil TG. 1989 . DC. 2001 Simon RI. 2005 Simon RI: Psychiatry and Law for Clinicians. Psychiatric Services 52:1526–1527. J Am Acad Psychiatry Law 30:10–13. Int J Law Psychiatry 13:281–307. in The Psychiatrist in the Courtroom. Hillsdale. DC. Edited by Quen JM. Gold LH: Textbook of Forensic Psychiatry.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. Springer Science+Business Media. pp 233–248 Rogers R. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Behavioral Sciences and the Law 7:145–180.
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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.. S-3) THE EXPERT faces many challenges in forensic work. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. In this chapter. tend to drift unconsciously into a “therapeutic mode.[Finally] I realized that each witness chair comes equipped with a stabilizer control.” They may forget that this encounter is not therapy. and its results may harm. To prevent such inadvertent abuse or exploitation of the examinee. particularly an empathically attuned one. rather than help. their ultimate goals in the legal process.. the ethical expert be13 . I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. It is a control easily within the reach of every witness—the lever marked “truth. First.. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. examinees being interviewed by a psychiatrist. p. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake.” (1.
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? .) For example. (Note that even if you cannot support all of the claims proffered in the case. after reviewing. who—in the ideal situation—accepts this view.g. For symmetry. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. The warnings (carefully documented. the attorney curses your name. that the firm will not be using you as an expert. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. this case might be called a defense case because the actions of the defendants are. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. indeed. and states. if necessary. and slams down the telephone. either your threshold for validity is too high or you need to meet a better class of attorneys. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. impugns your ancestors. Rather. you are friends with one of the defendants). You pass this information on to your retaining plaintiff’s attorney. 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. indicates the intention of explaining your information to the client. understandably. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. scoffs at your qualifications. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. defensible. 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. thanks you for your help. you decide you cannot support the retaining attorney’s position. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. If you take every case you review. After settling up any monetary adjustments. Therefore. If you turn down most cases you get. In a not-so-ideal situation. Turndown rates between 10% and 30% are not uncommon. the turndown rate is the percentage of cases in which. denounces your integrity. this case is over and has been turned down. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure..14 THE PSYCHIATRIST AS EXPERT WITNESS. you must consider whether your threshold for case validity may be too low.
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. An author described the special sensitivity to what one can swear to in this way: You are asked. Partisan pressures from the adversary are put aside. say. for example.” Once under oath. This model has been called the honest advocate model. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. inpatient care. “What color is that house over there?” The novice answers. One model holds that once the oath is taken. you take nothing for granted. or a number of invalid or meritless cases. Although these referrals are not strictly turndowns. In forensic practice. only over those you elect to accept. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. 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. and so on. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert.” Your correct answer would be. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. and 2) you answer cross-examination truthfully (see the following discussion). and the expert becomes the fully neutral observer and reporter. Consequently. 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. guess. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. Nevertheless.” . “White. that is. all of which you should turn down. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. This model is sometimes called the advocate for truth model. “White on this side. speculate about. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). the only touchstone is absolute truth as you know it or understand it. they do represent cases in which you have elected not to participate. that position is always acceptable. for a particular case outcome). Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. you could receive a number of good cases. all of which you might accept. Consequently.
Recall that the attorney’s goals are winning the case. similarly. is misreading the nature of the ethical contract between the two parties. under the rubric of loyalty. yours are providing ethical and valid consultation or testimony or both. but the likelihood of identification bias would surely seem to be greater. The attorney is free to find another expert. Extending this idea.” in this volume).g. is disappointed that your present opinion is unfavorable. . You do owe it to your attorney to level with him or her about yourself (e. 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. and what you can and cannot testify to under oath. First. and admire him or her. “First Principles. that is not your problem. your opinion and its limitations. As you work closely with your attorney. you owe only serious. might extensive socializing with the retaining attorney—or. The varying forms of bias are discussed below. you may come to like.16 THE PSYCHIATRIST AS EXPERT WITNESS. this identification may compromise your needed objectivity. this factor would require greater scrutiny of the relationship by the forensic witness. I suggest you also owe rigorous candor to your retaining attorney about what you can and cannot say and what the weaknesses in your own opinion are. discussed further in Chapter 3. respect. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. 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. or make whatever use of your opinion that may be of service. If the attorney. that is. you do not owe agreement with the attorney’s position or theory of the case.. A pitfall in this area might be called forensic countertransference. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. settle or drop the case. thus. with whom you have done many a previous case together. but two dimensions of the relationship pose potential ethical problems. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. This difference is significant. committed quality work. just what does the expert owe the retaining attorney? Strictly speaking. the skeletons in your closet. out of feelings of being loyal to his or her retaining attorney. identification with your retaining attorney (discussed more extensively in ).
you should refer the case. as a clinician.” Note also that. p. such as overidentification with the judge or the “system. The fact that the position is more or less neutral does not. Similarly. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. The . an attorney.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. for instance. 33) However. you are expected to manage your countertransference toward the examinee or the examinee’s actions. The challenge for the expert is to distinguish such reasonable and appropriate events from venal attempts at swaying the expert into a favorable opinion in the instant case. There is no shame in this. many expert biases are not detected either by the adversary system or even by the experts themselves. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. If you are a victim of child molestation. 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. 337). bias can be exceedingly subtle. and may add blandishments such as dinners at expensive restaurants and the like. In this model the attorney lavishes praise on the expert. (p. of course. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. although not common in practice. This neutral position is highly desirable for that reason. of course. 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. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. if the countertransference is unmanageable. eliminate other subtler biasing factors. Somewhat idealistically. The situation does reveal some complexity. promises many future retentions. 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. this effort may be termed nonsexual seduction. you may feel unable to examine objectively a child molester.
Finally. p. and their testimony is often unconvincing. and the limits of your testimony. The less admirable experts. while servants beat him with knotted towels. the limits of your knowledge. In the process of cross-examination. likely be explored. experts can be separated into two categories. the true extent of their opinions. 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. 261.” Your retaining attorney exerts the pull of retention. defend those opinions passionately and fiercely on cross-examination. both pull and push must be resisted. Therefore. yes. and identification as above. 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. none of this information should be a surprise to your retaining attorney. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. . Such candor may well enhance their credibility. expert testimony is like that. the limits of your data. and the hypothetical situations under which their conclusions would be different. loyalty. the limits of your credentials. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. Gutheil and Simon (6). the opposing attorney exerts the push of attempted impeachment. if appropriately asked by the other side. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. having become inappropriately enamored of their opinions rather than of the truth. Again.The Expert’s Ethical Universe 19 TABLE 2–1.
8. Miller PM: Withholding. 2001 Miller RD: Professional vs personal ethics: methods for system reform. Miller PM. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. December 2004. 2004 Gutheil TG. Baltimore. 7. Springer Science & Business Media. Martinez R: Forensic Ethics and the Expert Witness. J Am Acad Psychiatry Law 36:195–200. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. Psychiatric Times. Simon RI: Avoiding bias in expert testimony. Bull Am Acad Psychiatry Law 20:141–152. Weinstock R. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. 4th Edition. 2004 4. J Psychiatry Law 28:449–457. pp 33. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 2008 Katz J: The fallacy of the impartial expert. Psychiatric Annals 34:260–270. 1992 Lynett E. 2007 Gutheil TG. SECOND EDITION References 1. American Psychiatric Publishing. 3. 6.20 THE PSYCHIATRIST AS EXPERT WITNESS. DC. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Commons ML. 1999 Commons ML. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. WI. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. 2002 Gutheil TG. J Am Acad Psychiatry Law 27:546–553. Milwaukee. Baker TO: Operator’s Manual for a Witness Chair. 5. 2. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 36. 1990 Brodsky SL. 1983 Appelbaum PS. MD. J Am Acad Psychiatry Law 29:336–339. 39 Gutheil TG. objectivity and fair compensation. Williams & Wilkins. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. 2002 Candilis PJ. 38. Washington. Prof Psychol Prac Res 33:307–309. Int J Law Psychiatry 13:249–259. 2001 Slovenko R: Discrediting the expert witness on account of bias. Bull Am Acad Psychiatry Law 20:163–177. J Am Acad Psychiatry Law 32:70–75. New York. Gutheil TG: Expert witness perceptions of bias in experts. 1992 . Defense Research Institute.
2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. 1993 Shuman DW. Greenberg SA: The expert witness. J Am Acad Psychiatry Law 33:386–389. 1991 . the adversarial system and the voice of reason: reconciling impartiality and advocacy. 1987 Schultz-Ross RA: Ethics and the expert witness. Leong GG. Bull Am Acad Psychiatry Law 19:237–248. Hosp Community Psychiatry 44:388–389. Bull Am Acad Psychiatry Law 17:189–202. 1989 Weinstock R. 2005 Rogers R: Ethical dilemmas in forensic evaluations. 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. Prof Psychol Res Prac 34:219–224. Behavioral Sciences and the Law 5:149–160. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. J Am Acad Psychiatry Law 36:167–174.
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discussed in the previous chapter and later in this chapter. 23 . considered for examination of competence to stand trial. is being treated in a hospital setting.CHAPTER 3 First Principles IN CLINICAL WORK. but you are not required to preview your findings. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. share a copy of your report with the examinee. Your duty is to the person for whom you are working. or perform some other such intervention with him or her. as when a defendant. prescribe. When you examine a plaintiff at a defense attorney’s request. you still work only for your retaining attorney and. you may or may not owe a separate form of allegiance to that attorney’s client. ineffectual testimony. forensic work should thus always begin with the question. That relationship is also a source of certain pitfalls of bias. make recommendations. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. Although you are usually working for an attorney. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. or some kind of class action). regardless of what is going on with other experts or treaters. that person is the recipient of your opinions. However. In the forensic relationship. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. indirectly. your employer is less clear. that is usually clear. the patient is your employer. that attorney’s client. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. you should—be polite and supportive to your examinee. treat. you may—indeed. and compromised working relationship.
the topic is extensively discussed in the companion volume. more likely. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. This telephone call is far from a mere administrative formality. Watch for this ploy. this approach is self-defeating. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. “Have you discussed this with your attorney?” This threw me. If this issue is in question. informal discussion should be the format. politeness dictates that you call the attorney Mr. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. The Retaining Attorney’s Request After the first forensic question. In this chapter. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. or Ms. the term your attorney will be used to refer to the attorney retaining you as an expert. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . This point came up in an actual cross-examination in a distant state. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. The Psychiatrist in Court: A Survival Guide. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. and mastery of professional jargon. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. Friendly. not your personal counsel. for whom am I working. It became clear that the cross-examiner meant my retaining attorney. Smith until he or she invites you to call him or her John or Jane. on purpose—he chose to characterize as “mine. How you communicate with your attorney is important from the outset. refer to those sources.” implying venality and bias. clinical experience. though this distinction may be intentionally obscured as a cross-examination tactic. Instead. which—either by accident or. I was asked.24 THE PSYCHIATRIST AS EXPERT WITNESS.
but I am willing to become familiar with the issue”). it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. Therefore. but subtler versions of personal resonance with a case are not uncommon. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. such cases should be reality-tested for the attorney. I recommend hearing about the broad issues of the case first and only then asking for people’s names. but the attorney wishes to retain you anyway because of a recommendation from a peer or because of the high regard in which you are held by local physicians. and so on. the hospital. Your Fitness as an Expert Should you. 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. if your aged mother has just died in a nursing home. however baseless? Are you now being investigated by the board of registration for some allegation. Note that your special expertise should exist against a backdrop of your general competence in the field. “Look. 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. have you been the defendant in a malpractice suit.. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. For example. The attorney can then take or leave this arrangement. if you cannot or should not take the case. These issues go beyond mere conflict of interest. experience.First Principles 25 chiatrist actually has some knowledge about. In general. 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.g. This example is fairly obvious. which is usually (but not always) clear-cut. no matter how unfounded? Do you have a . I don’t know a great deal about this specific subject. board certification. that is. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. as indicated by publication. the attorney will not have revealed confidential information (the names) to you. 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. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. personally.
Similarly.. the court record chidingly notes. This issue is further discussed later in this chapter. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. the ultimate beneficiaries. the more words you might have to eat on cross-examination. for example. Reviewing your own published work in a particular area is a worthwhile part of your preparation. attorneys are invisible within the court record. they are all corrupt). who are the strangers in the courtroom. you realize that the more you write. credentialing problems in the past. Belatedly surprising your attorney (e. . contradicts your present position. or have been retained by one side more than the other? Review this with the attorney. a criminal record (no matter how minor). “Smith failed to plead . 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. .. Fees. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. Time.e. . knows that it was Smith’s lawyer who was derelict. 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. even if the issues are clinically or forensically totally different. juvenile offenses. including the speaker. not for their time and clinical expertise. Finally. unfortunately. for instance.” when everyone. . for the first time while on the witness stand) is a major expert sin. in the preceding quote. are there cases in which you have testified on behalf of the other side. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. and similar problems? You must be extremely candid with the lawyers about such facts at the outset.In too many medical malpractice cases. (1) This quote is interesting from several viewpoints.26 THE PSYCHIATRIST AS EXPERT WITNESS. Second.g. have taken an opposite position or opinion. Thus. . Do your best to address this possibility early. If you write a lot. As is often the case. 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.. 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. in an economic sense. SECOND EDITION history of problems in the military. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment.
is “I am not being paid for my testimony. 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. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). planning. or challenge the details.First Principles 27 not the forensic context. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. choose a fee that you would not be embarrassed to state. this is a pro bono case for you?”). these conversations usually convey to me that the caller may not be able to afford me—there is no shame in that—and that I am certainly willing to recommend someone younger and cheaper. Second. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered.” Other witnesses may take this further: “My testimony is not for sale.” Yes. Therapists who are quite capable of taking an extensive. Use timers or check your watch at the start and end of a piece of work and write down the time. Don’t charge for a 90-second telephone call confirming the date of . but you are made of finer stuff. grits his or her teeth. only for my time. I know. without children bursting in to share their Nintendo triumphs with you). But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. “So. or grasps the point. and organizing your forensic assessment is part of the work. 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. and try to maintain that rate. meaning no offense. allowing me to refer to a junior colleague.” or “Nothing” (and wait for the attorney to crack. First. analyzing. I tactfully suggest that. Doctor?” The only appropriate answer. nit pick. since the doctor-patient relationship is not pertinent to the examiner-examinee one. Like the judge previously quoted. Note also that time spent thinking. ideally delivered in a calm tone of voice and not through clenched teeth. and hires me anyway. attorneys have timers on all their phones and charge by the split second. Doctor. whether for psychotherapy or expert witness time. Indeed. this usually means that the client has hesitation or resistance about my rates. same as you. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. I also recommend not “nickel and diming.” or “I am paid by the hour.
or other conflict. 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. failure to pay is reality. respectively. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. Then. your fee should never be contingent. You give only testimony..28 THE PSYCHIATRIST AS EXPERT WITNESS. you are charging for time regardless of the outcome of the case. Urge your attorney to bring up your fees on direct examination to get it out of the way. shame. Ethically speaking. To novice experts. it is unfair to your attorney. I reported him to the Massachusetts Board of Bar Overseers. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). Keep your vacations in mind. Bitter experience teaches that it is critically important to have a standard fee agreement or contract signed by the attorney (or insurer) and to operate by retainer or payment in advance. It should. and give the dates to the attorney. defaulted on payment) by their first attorney. I took my first major “stiffer” to court eventually and received some of my money. You sell only time. 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.A. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. If you don’t have enough time. but in my experience. some of which never . ideally. Refuse any other arrangement. The attorneys. Perry Mason. at the end of this book. they referred me to small claims court. you can calmly state them without guilt. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. How much work or time should you devote to the case? This depends on your schedule. but your consultation must be free of investment in any form in the outcome of the case. are free to employ contingent fees. the organization in charge of attorneys’ ethical issues. when asked about your fees on the stand. basically consultative services. in addition. don’t take on the case. even if there is). or for reading a one-paragraph letter. SECOND EDITION a deposition. the good folks on L. for instance. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. of course.e. among others. Owen Marshall. That august body opined that this was not an ethical problem but a business issue or a contract issue. when you design your own fee agreement.
Moreover. You simply may be a consultant to the attorney on the merits of the case at the outset. You may provide rebuttal material for use by others. your consultative. someone who has to generate a written 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. what your time permits. You may be needed to evaluate a plaintiff (or a defendant. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. at some point. going to testify. an individual client. In other cases. Do one or the other. what your skills or knowledge support. as a professional. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. 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. that role would be ethically incompatible with the objective testifying role. Will you be expected to testify at trial. rarely. You might advise the attorney on how to cross-examine the other side’s experts or litigants. If you are. Among other things. how you feel about the attorney. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. .First Principles 29 lead to the courtroom. is a tentative trial date known? How do your vacations fit in? This information allows you to allot more time and spread your cases so that you are not testifying on consecutive days for different cases—the expert’s nightmare. Which comes first boils down to a matter of individual preference. testator. or even witness. often in orange-crate–sized lots. for that matter). or will your opinion be used by the attorney to strategize without a report. is more accountable. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. your first task might be an evaluation of plaintiff. defendant. your attorney. which the attorney decides to forgo because it might have to be supplied to the other side? All these considerations affect not only your clear sense of role but also practical matters such as your time allotment and scheduling. The Final Decision Putting together everything that you now know—what you charge. nontreatment role is clearer. The usual next step begins with your receipt of written materials on the case. that is. As a rule. or is the matter likely not to go to trial? Are you going to be a reporter.
you must ask the question. compared with some other behavior. stating that the patient’s dangerousness flowed from his being charged with slashing tires. his dangerousness was the crucial issue. The attorney presented the case to me by telephone. for that matter. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint.30 THE PSYCHIATRIST AS EXPERT WITNESS. In any case. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. followed by review of the documentation. the emotional pressure of the attorney’s desperation should not alter your objectivity. 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). In reality. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. attorneys would call you only for ironclad solid cases in which they have every confidence. I recommend listening for indexes of venality. even in a consultative sense? In the initial telephone call. you may be the ninth expert the attorney has consulted. the attorney may be employing you in a desperate attempt to clutch at some faint hope. though you would not necessarily know this. Regrettably. There is nothing inherently wrong with this desperation. For example. Scheduling considerations may determine the first task. the minority are the ones who pose the problems. of course. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. the next task is clear. or a tendency to want to withhold information. does the side retaining you have a valid case (or even a case valid in at least some aspects on which decisions about litigation or settlement could be made)? Note that in an ideal world. The point is perhaps an obvious one. including by obtaining expert consultation. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. does the attorney have merit? As a rule. a tendency to assume you will give the “desired” opinion no matter what the material shows. in relation to which. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. However. a behavior that certainly did not seem all that threatening. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. On perusing .
my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. Most ethical attorneys. and the arguments fall into two categories. will acknowledge that they agree or felt the same as you did but needed to use expert input to satisfy their own mandates or those of the client or the insurer. I telephoned the attorney and demanded to know why he had withheld this history. the only safe course is not to work with that attorney. such pressure should be resisted. I told the attorney that she possessed “islands of competence. the attorney wants to be sure you understand the import of certain data. which happen to be unfavorable to the retaining attorney’s case. the benign category. will argue with you at this point.” After mulling this over. you give your conclusions. You cannot afford to embark on a course of work with someone such as this particular attorney. Somewhat annoyed. A delicate balance must be struck between reasonable flexibility about.) The second red-flag situation occurs when. In the first. however. the malignant category. 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. 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). faced with this disappointing fact. In the second. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness.” He wondered if that could be equally well expressed by “areas of competence. For example. I decided those were near-enough equivalents. the wording in which your opinion is couched and the substantive alteration of your opinion. based on the patient’s history of significant violence. therefore. then you have to expect the same in the future. (Note also in this example the value of the previous record. for instance. but I emphasized that he and I needed to be clear about the fact that I would testify . based on your review of the database. after you have given your verbal report. Underlying this issue is a more fundamental challenge for the expert: how far to go in negotiating with the attorney as to the limits of your opinion. however. If he or she withholds or distorts information or lies to you initially. Some attorneys. Another less knowledgeable group of attorneys will be educated by your discussion.First Principles 31 the old record. in a competence assessment of an elderly woman. arguments are the attorney’s attempt to browbeat you into changing your mind. and the result may be your withdrawal from the case. wants to be certain you took note of a particular record entry or deposition statement. a document often difficult to unearth but essential to the full evaluation. Obviously. Expert witness work is hard enough without bad faith.
and I accepted. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. the remainder of the opinion. regardless of what may be precluded by rules of evidence and discovery. shape or form whatsoever. inclusion of somewhat negative evidence would show objectivity. wanted.” The attorney moved on to other matters. . to “go over” my report. in fact. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. and testify to if asked. and did not stop until I said. This is the final opinion I am giving here and now. an opposing attorney asked me on the stand when I had received various parts of the database. Your request should be global. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. He asked me to use the dates of the depositions I had reviewed. In yet another case. I said I would change nothing. and withdrew from the case. in an extended phone call. In another case. finally. I had prepared a 22-page single-spaced report. in any way. Although delighted with this level of detail. in a high-profile. and so on. The attorney made a big show of my “concealing” this information. rather than Volume I. It is important to ask for everything from the attorney. This suggestion was acceptable. The negotiating discussion moved into argument. This was trivial.32 THE PSYCHIATRIST AS EXPERT WITNESS. multimillion-dollar will contest. that since I had read it and thought it relevant. Volume II. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. and so on. I did not recall because I do not keep that kind of record. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. moreover. only the final opinion really matters. The attorney asked for major cuts or deletions. I told him. under the specious rationale that this method would permit seeing the evolution of my opinion. this rationale is especially ill-founded. hung up. Since only the final (or courtroom) opinion is determinative. after discussion I accepted that. however. One attorney nearly drove me mad by releasing dribs and drabs of material. even if some material is irrelevant and other parts are inadmissible. tactfully. his senior partner wanted to deemphasize the subject by changing some wording. “withholding” important data from the jury. The attorney said he was offended that I should even think he was suggesting omitting something. Agreement was struck. the retaining attorney. In a variant on this issue. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. I could not ethically omit it.
if you will. 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. you should consider some important points. you are creating a checklist.” 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. Either undertaking or turning down such a case is a defensible position. I think this guy is probably not insane. I have found that attorneys for some reason often fail to send the exhibits to depositions. “Look. each element of which may be confirmed or disconfirmed by other material in the database. because I’ve got nothing. Forensic countertransference is further discussed in reference 2. Referral to another or an additional expert also may be indicated. but I’d like you to do this evaluation on him anyway. This ethical dilemma arises when the attorney says. directed not toward the patient or examinee but toward the attorney. As you go through the documents. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. I find it helpful first to read the complaint so that you know what the basic issues are. long pages of deposition testimony drone on about the exhibit. it is up to you.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. Recall that a plaintiff can claim anything at first. check the documents you receive against the cover letter to be sure you have everything you should. As you read the complaint. However. . This problem is a variant of a countertransference issue. and connections that can be checked against the primary record data and flag those in some way. In general. facts. feel free to use it if it suits your own preferences. a situation sometimes occurs that requires special mention. First. after your report. My own approach is as follows. but you have to make your own ethical decision about the circumstances under which you as a forensic expert should take on a case in such an “I’ve got nothing” scenario. but you can only imagine it because the actual document has not been provided. Second. He was photographed doing the crime. even data of dubious validity. look critically for claims. 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. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. for example.
I read the medical records and clinical material or the equivalent.g. makes it harder to focus on hot spots of the case or areas of contradiction in the database. your interview queries would thus arise directly out of the material. insanity in a criminal context). It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. A laptop computer for this task may be quite helpful. accept it as a limitation. advance screening. then to check the record to determine whether the complaint or issue has any validity. Such an examinee-first approach. the testator. Given the complexity of many psychiatric malpractice cases. I strongly recommend reading large chunks of material at a single sitting. including your own. or whoever is involved in the case (presumably. third. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. or with only the complaint reviewed. Some discretion. 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). you also may want to review relevant literature on the subject. Note for completeness that some experts like to start by examining the litigant first. exert every effort through your attorney to obtain enough time to do an adequate examination. you are familiar with basic interview approaches). the depositions or witness reports. . no matter how difficult the scheduling might be. and selection of a safe environment may be required for examining potentially dangerous examinees. for example. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. you will want to interview the plaintiff. At this point. however.. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. you may also request that the attorney’s office create the timeline. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. The Interview After reading the materials. The attorneys on either side of the case may limit the interview time available. If the appropriate amount of time for your examination cannot be obtained. This approach is the best way to have the whole case in memory so that you can catch contradictions between different sections of the database. if you have not already done so. This permits. SECOND EDITION Second.34 THE PSYCHIATRIST AS EXPERT WITNESS. cold. and be prepared to acknowledge this constraint as a limitation on the data. the witness. perhaps by a paralegal. the defendant.
exaggerating symptoms. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . Verbatim material also can be obtained in this way. based on the belief that such an examination can only hurt the case. The occasional plaintiff ’s attorney will openly state that he or she never allows an IME (independent medical examination by an expert) of the client-plaintiff.” was appropriately disconcerting. Examinees who must travel to see you should. This decision is legitimate but bears consequences. as a rule.First Principles 35 If the witness lives locally. The fundamental reasons are as follows: 1. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. presumably.” My immediate response. inhibit free-ranging inquiry. cuing. then to read the database. 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. but I strongly recommend opposing their occurrence through your attorney. focusing on making a recording. that side’s attorney may refuse to allow you to do so. more authentic) responses to your inquiries. Note that when you are retained by the defense and wish to examine the plaintiff. for some experts. 3. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. and suggestions from the attorney present may contaminate the process. an audiotape or videotape of an interview may be constructive. however. be spared this burden. although this irritates some examinees more than writing during the interview. 2. For a number of circumstances. “You wouldn’t let me!. the absence of this datum must be factored into the opinion. when examining for the opposite side of a case. Jurisdictional rules may make one or all of these procedures mandatory. it is certainly beneficial for teaching and for self-review for quality assurance. unobtrusive note taking probably represents the optimum compromise among choices. in one case. then to examine him or her again to clear up matters raised by the written material. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. it might be effective and appropriate to examine him or her first. Inappropriate interruptions and objections. Not uncommonly. For example. alternatively. However. If you are unable to prevent the above intrusions. to have the interview audiotaped or videotaped. the expert will receive a request to have an attorney or paralegal present during the interview or. Examinees commonly play up to the audience or recording device.
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. behind the examinee). as when the complaint boils down to. This subject is addressed extensively elsewhere (3). “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. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. p. in the unpublished 1996 case of Lailhengue v.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. . SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. March. distortion. The following are four of the principles that I apply as a generic framework for this purpose.. be it civil or criminal..An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. Mobil. but wanted them to know that it would not help their case if it came out that they went to the gym to play basketball before they went to the emergency room after their auto accident.Attorney Larry Cohen (personal communication.36 THE PSYCHIATRIST AS EXPERT WITNESS. a psychiatrist interviewed plaintiffs with an attorney present. and I want to sue him.. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. a second offense should lead you to terminate the interview and report this interference to your retaining attorney.. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. a mass tort in Louisiana. and so on? ...g. Do the deviations from standard of care sound hokey. is whether the case is fundamentally plausible. If the attorney attempts in any way to cue or coach the examinee. the parts of which do not refute one another? Did the subject tell the same story to different observers at different times or a varied story? What benign factors might account for this discrepancy? What might this finding imply about possible fabrication. Plausibility The first question to ask of the case. but the following vignettes make the point clearly: For example. (4. warn once. 322) To offer a structure for this stage of the inquiry. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me.
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. how might it have occurred alternatively? Is there another way of explaining what happened. the outcome. The notion of the alternative scenario can be essential for assessing civil claims. Finally. in a sexual misconduct claim later proven groundless. however. 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. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. If the situation did not occur in the manner claimed. or for some criminal claims of insanity. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. MGM/UA. remember not to offer any treatment or treatment recommendations to your examinee. observations. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. about the historic English crime. 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. such as sexual misconduct. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. or the alleged damages? For example. as well as disability evaluations and similar tasks. 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. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. the following dialogue occurs between the trial judge and Edward Pierce. even if asked to do so or tempted by medical ne- . The phone records aided in challenging the claim by providing a time stamp. 1978). he had made several outgoing calls during the time period of the alleged molestation. She had apparently established these referents by calling the office and receiving no answer. Alternative Scenario In the film The Great Train Robbery (Crichton M. she assumed the doctor was not present and could not refute her claim. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component.
Is the patient convincing and plausible? Do the words match the music. recall that anyone can really be fooled.38 THE PSYCHIATRIST AS EXPERT WITNESS. my testimony may help your case. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. move on to the substance of your interview. and if you do not. what you say may come out in a report. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. you do not have to answer any of my questions. First. hurt your case. although I hope you will do so. but since I can only be useful if I am objective. possibly with reporters present. Her emotions were strong and appropriate to the content. in both civil and criminal cases. what we talk about here is not confidential because I am not your treater. restroom) at any time. or in an open courtroom. answer them as best you can. defendant. you will interview the subject (plaintiff. unlike what you may be familiar with from other doctors or therapists. I have been retained by (your side. if not. as noted early in this text. The relationship is not a medical one. As you are interviewing the examinee. 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. and you must keep several issues in mind. I am entitled to make note of that. or have no visible effect on your case—only time will tell. there are some things I need to inform you about. Third. and treatment offers are inappropriate. compare the consent form in Appendix 1. the court). please sit down” but before anything substantive has been said: Before we start. Second. she had plausible answers for all my questions. You will be challenged to weave interview data into the totality of the case. Only when I subsequently read her deposition did her entire . you are attending to his or her demeanor and its relation to credibility. and others) as part of your exhaustive review of the database. Other warnings. you can ask for a break (water. Fitting Together the Interview Commonly. such as informing the examinee which side has retained you. that is. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. seem to be called for out of fundamental fairness to your examinee. Note the fully intentional structural resemblance of the above paragraph to informed consent. in a deposition. SECOND EDITION cessity as treatment issues emerge in the interview. Do you have any questions about what I have told you so far? If the person has questions. the other side of the case. And finally.
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 . The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. but those efforts may fail or be misdirected and may even make things worse. Such distinctions are extremely significant in the hard monetary realities of the legal case. a defendant may be mentally ill. The plaintiff ’s failure to take those remedial steps does count against him or her. but did that deviation cause the damages. Smith did X at this point. particular plaintiff vulnerability for which the defendant must be held responsible. but then Dr. on the other hand. Besides serving as a valuable lesson in humility. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i.First Principles 39 case fall apart. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria.. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. the preexisting condition must be deducted from the damages.” In the civil system. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. believe deeply in their position. The Causation or Connection Dilemma In many forensic cases. because of their psychopathology. it only means that you’re being conned into thinking that you’re not being conned. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. Jones did Y and the plaintiff did Z. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. the case was highly instructive: interviewees can be extremely convincing. Similarly problematic is the matter of intervening causes: “Dr. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. For example.e. especially when they themselves. because the defendant is not causally responsible for what happened earlier. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms.
although it has not yet gained broad enough acceptance to be generally admissible as evidence.” there may be subsequent posttrial motions. 2. American Psychiatric Publishing. Washington. and your interview notes. 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. 2002 Gutheil TG: Reflections on coaching by attorneys. because they would be hard to replace. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. what the results were of subsequent events. 1994 Gutheil TG. In addition. mistrial claims. with permission. J Am Acad Psychiatry Law 31:6–9. What portion (usually. or incident. 63 Ohio Misc 2d 533 at 534. 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. and then has other symptoms or more of the same symptoms. if any. SECOND EDITION were of a particular deviation. References 1. or 2) return the materials to the retaining agency. event. appeals. If you are discarding case materials.40 THE PSYCHIATRIST AS EXPERT WITNESS. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. Further research may reveal other promising approaches (6). 2003 3. work by Pittman and Orr (5) on differentiating serial trauma shows promise. they may serve you to recall the case at a later point for research or publication purposes. then is sexually abused by a treater. Another good rule is to discard. Kirby v Ahmad. Even if a case seems “over. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. and what the exacerbations were of preexisting conditions. . all case materials except your reports. keep the latter indefinitely. and so forth that require revisiting the materials. Or. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. two major approaches apply: 1) shred or have a reputable company shred the paperwork. DC.
First Principles 4. J Psychiatry Law 21:33–76. 4th Edition. 2005 . Families and Physicians Can Cope With Uncertainty. 2007 Borum R. Edited by Rogers R. 2003 Group for the Advancement of Psychiatry. Brain Injury 11:791–799. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. Guilford Press. Chapman. in Clinical Assessment of Malingering and Deception. Feinbloom RI. Williams & Wilkins. J Psychiatry Law 24:3–25. 2008. Brunner/Mazel. Lippincott. New York. Zasler ND. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. & Hall. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. New York. Routledge. 1991 Lees-Haley PR. 1993 Bursztajn HJ. J Am Acad Psychiatry Law 33:158–175. 3rd Edition. 3rd Edition. 5. 1990 Suggested Readings Appelbaum PS. Hamm RM. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. et al: Medical Choices. Gutheil TG: Clinical Handbook of Psychiatry and the Law. et al: Response bias in plaintiffs’ histories. Williams CW. Bull Am Acad Psychiatry Law 21:37–52. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). 41 6. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. 1997 Pittman RK. Baltimore. New York. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. MD. Guilford Press. Medical Chances: How Patients. New York. Otto R. J Am Acad Psychiatry Law 31:232–238. 1993 Deaton JSD: Toward a critical forensic psychiatry. Assessment 4:321–324.
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3) injury to the patient. for example (the most common claim against mental health professionals). than was actually so before the event in question occurred. The discussions within this chapter should be considered an introductory survey. in this chapter. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. this bias means that the outcome of an event appears as though it had been far more foreseeable. 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. and 4) proximate cause. once you know it has already happened. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. In a suicide malpractice case. More practically. 2) breach of duty. Sometimes forgotten is the fore43 . But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. 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. you already know the person is dead. Generally.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of
Types of Typical Cases
course, it is quite a different matter if the on-site treater’s conclusions are internally inconsistent with his or her own contemporaneous observations or are egregious distortions of the diagnostic or therapeutic process. But absent such extremes, great primacy should be awarded to subjective, nondocumented material that is observed and enters into the decision making by the on-site personnel at the relevant time. It is therefore important to suspend your judgment while reading a case until the whole has been reviewed. Each side can be surprisingly convincing when assessed in a vacuum (such as the complaint or interview alone) so that premature closure of your opinion is a great hazard of the trade. Resist this temptation, and flag those claims that need to be checked against other parts of the database.
The Standard of Care
The question of the standard of care is a complex but central issue in malpractice; it is the benchmark against which deviation (i.e., negligence) is measured. Unfortunately, the official standard of care or the wording in which it is couched may vary between jurisdictions. As an expert, you must, of course, familiarize yourself with the relevant local standard and its wording early in your work on the case and apply it to your review of the database. Massachusetts case law, for example, has a rather elaborate definition; the standard of care is that of “the average reasonable practitioner at that time and under the circumstances and taking into account the advances in the field.” By inference, this is a national standard, because advances in the field are professionwide, not regional. Other jurisdictions may have what is called a locality rule, which is a standard drawn from the practice of clinicians in that locality. For example, part of my qualification process in testifying in Durham, North Carolina, which has the locality rule, was to demonstrate the various ways in which I was aware of what clinicians do in Durham. In light of some recent American Psychiatric Association (APA) publications articulating diagnostic and treatment guidelines, how are these guidelines to be construed in relation to standards of care? The average guideline is not itself a standard; rather than describing average actual practice, the guideline often identifies what care ideally should be, that is, best practices. For example, if you write a textbook of psychiatry and law that proposes certain recommendations, those are not the standards of care. Those recommendations are called precatory or preaching; that is, they preach what the best care should be, rather than the required average reasonable care. Those recommendations do not pretend to be the standard of the average reasonable practitioner. All of these citations may be legally considered “evi-
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.
Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
the expert may draw conclusions from the record alone. through your retaining lawyer’s permission and intercession. you may be tempted to say to yourself. make some sort of notation each time you read through the record. Next. of what this record entry contradicts or supports in the deposition. defendants. “This is so clear and memorable that I will naturally recall it later. you are seeking consistency and credibility. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. you may have to pose your own questions to the parties. plaintiffs. In the process of reading. or it can be a highlighted entry. for example. you read the depositions of witnesses. or a folded corner of the page. of any queries or signs of missing data that the record generates to be checked later or elsewhere. an underline. There is something of a translation burden on you to read between the lines to determine the issues. When reading the deposition. as a separate document. a marginal scribble. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. The intrinsic problem is that the deposition usually takes place long after the incident occurred and certainly after litigation has been initiated (a problem that potentially biases or distorts the issues. these may not necessarily be the questions you would want to ask. the next time you read this document for deposition or trial may be 7 years away. . of your thoughts and reactions. or whatever. any forensic document) without making some sort of notation of what is significant. if present. To save yourself reading everything from scratch each time. as different things may strike you on subsequent review. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. of course).Types of Typical Cases 47 the tests ordered. and others. after the records. Because keeping a medical record is itself part of the standard of care. It is useful to compare the perceptions of the social worker (who often has worked extensively with the family) with the perceptions of other staff. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. a post-it. This notation can be on a separate sheet of paper of similar notes.” However. nor are the queries necessarily posed the way you would do so. I have been impressed by how often the social service history supplies additional relevant data or gives a more detailed and comprehensive family history than does the psychiatric history. On some occasions. The point may seem obvious. but depositions consist of attorneys’ questions to various parties. opposing experts. I find it valuable to look at the social service history.
or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. litigant. All communications beyond the most mechanistic (giving the opposing attorney’s secretary directions to your office for a deposition) should be channeled through your attorney. These unethical conversations usually have an informal tone: “So. while reading a deposition. I have had opposing attorneys telephone me directly on a “fishing expedition” to see what they could get me to disclose about a case without the trouble and expense of scheduling a deposition. The truly challenging case lies between these extremes. you are lulled by this informal. The appropriate response is.48 THE PSYCHIATRIST AS EXPERT WITNESS. statements of the arresting officers. in my (and almost everyone’s) view. the more helpful it would be in forming your opinion. weighing the logic of the deponent’s responses. is historical material. or expert. SECOND EDITION Although the more information gathered. data gathered at the time of the alleged act. what do you think about this amazing case. “I think you should talk to the retaining attorney. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. To read critically.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. Doctor. eh?” Presumably. you can be drawn into the prose by the unfolding drama therein recorded. it is inappropriate to call or write directly to the opposing attorney. 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. your attorney’s confidential trial strategy. but still relevant. In those jurisdictions where the issue exists. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. Is this defendant someone who seemed to show . Criminal Responsibility Cases In cases of criminal responsibility. namely. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. On occasion. are the most significant. exert the effort to stand back from the process. Of second-rank importance. friendly approach into letting your guard down and discoursing freely on your opinions. Because of the flow of material and its often fascinating content. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. These would include witness and victim reports. and so on. remember to consider diminished capacity as an intermediate condition. For example. and records of any treating clinicians from points close in time to the alleged acts.
an injury from which he recovered rapidly without lasting effect. for example. All the interview data must be fitted to the totality of the database. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. The interview also gives you a chance to assess what might be called a sense of proportion. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. Because of the seriousness of criminal penalties. Finally. The plaintiff who claims that his or her major posttraumatic stress disorder (PTSD) and all of his or her subsequent emotional problems were caused by a tiny plastic bottle of vodka striking him or her when falling out of an airplane’s overhead compartment might raise some issues of proportion. I find the interview for an emotional injury case to be of primary value. The novice expert should become familiar with useful publications on the subject (7. some on . malingering is especially common and problematic in this assessment. as with all forensic evaluations (6). a plaintiff drank from a chemically contaminated bottle and burned his mouth. The most valuable dimension of the interview is obtaining previously unrecorded history and the defendant’s own self-reported rationale for his or her actions and own description of the internal mental state at the time of the act.Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. the result of the crime. the interview in a criminal responsibility case has the least power of all the data collected.8). In one case. an unrelated accompaniment to the crime. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. although mandatory and irreplaceable. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. and so on. or did he or she have a long history of mental illness with recurring hospitalizations and delusional symptoms that relate directly to the alleged act? Recall that mental illness may bear a wide variety of relationships to crime: a factor in responsibility. a surprising number of individuals avoid treatment. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. the cause of the crime.
“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. I had to interview him in his home because he claimed to be phobically homebound. as a result of the mugging. The response “My attorney told me not to” conveys its own obvious message. with intrusive flashback memories. 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. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. SECOND EDITION their own accord and some when given this advice by their attorneys. For example. preexisting vulnerability. 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. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. I . there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. you again often encounter the previously described problem of factoring out the effects of serial trauma. and startle responses. A question you should ask your interviewee is. but they may also be relevant to assessing damages or preexisting conditions. Next to the small table where we were sitting. The interview took place in his basement recreation room. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. may be relevant. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. Not only might these provide a context for the injuries claimed. History.e.. This history may represent the plaintiff ’s “thin skull” (i.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. In this situation. especially idiosyncratic history. too. Finally. avoidance. however. Such a search can be embarrassing and humiliating to anyone. 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. only to find that the goods are legitimately accompanied by a receipt. in regard to which the defendants must “take the plaintiffs as they find them”). The shopper then may sue the store for harassment and consequent emotional harms. He claimed to have full-fledged PTSD.
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. This passenger.357 Magnum close to his ear. I myself jumped in my chair. perhaps so. usually not. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. that is. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. As the “moving . It is. the jury ultimately decides. don’t assume—examine. Initially. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. it turned out. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. had been in the front row of seats just behind the break in the plane. yet the observation is valid. On the surface of his story. This case also illustrates the maxim. fellow passengers. An apartment dweller sued her landlord for failing to respond to the infestation. which the average member of the public really doesn’t understand. He was strapped into his seat. High-Profile Cases At one point or another. the nose of the plane fell into the harbor. on careful inquiry. without warning. looking straight down past his toes. but at incredibly high levels. unimaginative. he would have said calmly. who. dying. the former passenger was revealed as a serious. stoic fisherman. He slept like a log. the plaintiff or prosecutor can say anything. On detailed examination. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. the case certainly seemed meritorious in theory. Boston Harbor with freezing. and. therefore. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. then you get the case. and did not dream. or crime has generated publicity first. In a famous incident. 51 This observation was potentially valuable and worth recording.Types of Typical Cases knew this because. injury. ate like a lumberjack. he saw a jagged metal edge and below that edge. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. He gave the impression on interview that if you fired off a . “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. to get the actual data. of course. it seemed to me that this incident would induce PTSD in a stone statue. One of my cases raised this issue. had no signs of trauma whatsoever. There is a fundamental asymmetry about media coverage in almost every case. not totally probative. however. you may be asked to review a case that has been extensively covered in the media before you have been retained. the alleged malpractice.
lest your review should begin with a one-sided perspective. consciously or unconsciously. The defense attorneys must say “no comment” each time. and spill hot coffee over their thighs and sue McDonald’s. SECOND EDITION parties. of course. “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. A plaintiff can say to the media. Ninety-nine percent of the time. In malpractice cases. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. however. 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. the defense attorneys cannot answer the media’s questions. By doing this. the standard references the average reasonable . This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. for example. there is no case until it is brought. Even though you may try to tune out the media. the plaintiff and prosecutor inevitably bias the public’s perception.) Another stigma of the hired gun is the counsel of perfection. In short.” in this volume provides more reliable methods of publicizing your practice. Some attorneys may try. Recognizing this blot on our collective escutcheon will prepare you to deal with or counter the actions of the hired gun in court or elsewhere (10). rip off the covers in moving cars. but so do a number—perhaps a greater number—of venal witnesses. you have to be alert to this potential biasing factor and be aware of the media asymmetries. until it is proven in a court of law. (Chapter 9. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. for example.” the attorneys have to create the case from scratch. to influence the public powerfully in advance. selling testimony instead of time. 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.” In another case. because they don’t want to give away trial strategy. a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue.52 THE PSYCHIATRIST AS EXPERT WITNESS. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. pushing the case for all it is worth. None of this trumpeting means anything. in hopes that some of that public will later become jurors. Therefore. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. “Developing and Marketing a Forensic Practice.
prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. The real issue is: does the standard of care require more. Another variation on this theme is. the counter to such claims often begins with the phrase “Well. 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.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. For example. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). the likely explanation is that the treaterexpert made it up to suit his views of this case. 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. Indeed. Anyone always could have done more. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. “They (the defendants) should have done more.” Many “good ideas” theoretically might have contributed to the patient’s care. but no one lives real life like that. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. it’s a very serious situation.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Waffles are evasive. I personally have never heard of or read that standard anywhere. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. but malpractice litigation hinges on what is required by the standard of care. “If the care had been adequate.” This testimony is a classic hired gun claim. 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.. An even more malignant twist is the made-up or artificial standard.. in the real world. The hired gun often advances a perfectionistic standard as though it were the average. . Some experts believe that physicians are never wrong and always justify whatever the physicians do.
a reasonable history. then committed suicide. Getting the feel for how the waffle works takes a certain amount of reading of case material. . a patient had escaped from the hospital. Also note that the failure to consider a valid option indeed may constitute negligence. Note that this entire chunk of testimony is one run-on sentence. rather than ideally. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. The entire answer took four full deposition pages. More to the point. That was the answer in toto. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. he should have been [that is. but that is the answer to a different question. but. we don’t know whether he stops or doesn’t stop and get [drug] or not. I am not in a position to tell you that that would be the only choice. and where I believe the standard of care was breached was that the patient. took some blood pressure pills one time in [city]. 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. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. the mental state and what’s gone on in that patient’s mind is very uncertain. it seems nearly impossible to extract the actual opinion from the thicket of prose. It certainly should have been considered. reasonably would have been. actually. an hour before that or less signs a 3-day statement and then just disappears.54 THE PSYCHIATRIST AS EXPERT WITNESS. he has taken in despair 10 lithiums some years back. 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]. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. In the following example. goes all the way to [another city]. Is that a yes or a no? In fact it is neither—it is a waffle. Note how that witness actually avoids responding. and that is frequently the hallmark of the hired gun. 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. he gets frightened. there is a lot of despair and a great deal of thought disorganization in the patient. specifically. that this is a patient with some history of a. of unpredictability. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. an emergency petition ideally would have been.
in Retrospective Assessment of Mental States in Litigation: Predicting the Past. II: clinical uses of legal standards in the interpretation of subjective data. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. with impunity. 1991 Fischhoff B: Hindsight. 3. American Psychiatric Press. Int J Law Psychiatry 6:317–329. Kahneman D: The framing of decisions and the psychology of choice. we must consider another possibility regarding the above examples. 1981 Gutheil TG. Gutheil TG. et al: Decision-Making in Psychiatry and Law. Baltimore. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Washington. References 1. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Bursztajn H. we may be dealing with an incompetence issue. Conceivably. MD. 3rd Edition. note that one cannot. 2002. and that includes they would be safe within or without the community. but that doesn’t mean that it’s without supervision. a trend of such waffling answers in deposition does set off my hired gun detector. 2. 1975 Tversky A. Edited by Simon RI. foresight: the effect of outcome knowledge on judgment under uncertainty.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. Shuman DW. Guilford Press. Finally. Gutheil TG. 4. Yet. 7. Brodsky A. 6. Int J Law Psychiatry 6:331–350. New York. Williams & Wilkins. I: malpractice prevention and the use of subjective data. for better or for worse. 2008 5. Bursztajn H. DC. Science 211:453–458. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. which makes sure the patient is safe within a structured environment. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. J Exp Psychol 1:288–299. . I would prefer never to assume malice when incompetence would serve as an alternative scenario. In fairness. 1983 Bursztajn H.
1995 9.” J Am Acad Psychiatry Law 35:112–117. Psychiatric Services 50:767–773. 1992 Gutheil TG: A confusion of tongues: competence. American Psychiatric Press. Law and Human Behavior 19:493– 505. Psychiatry 1:26–28. insanity. DC. Psychiatr Clin North Am 17:439–446. 2000 10. 1993 . SECOND EDITION Gothard S. DC. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Meloy JR. Bull Am Acad Psychiatry Law 21:23–36. Washington. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. psychiatry and the law. 2004 Knoll J. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity.56 8. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. J Psychiatry Law 28:5–18. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. Legal Studies Forum 9:41–53. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. J Am Acad Psychiatry Law 34:215–223. 1987 11. Viglion DJ. et al: Detection of malingering in competency to stand trial evaluations. THE PSYCHIATRIST AS EXPERT WITNESS. Washington. American Psychiatric Press. 2005 Simon RI. 1999 Gutheil TG: Fundamentals of medical record documentation. Bull Am Acad Psychiatry Law 20:409–418. 2nd Edition. Gutheil TG: The problem of evasive testimony: the expert “waffle.
preparing for what to expect from the various witnesses and documents. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. if any. use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. Note that some jurisdictions practice “trial by ambush” without expert discovery. Attorneys probe and define the limits of their cases. In both cases. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. Under some circumstances. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. From the viewpoint of the expert. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names.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. there is the period known as discovery. the attorney will likely write the actual prose of the 57 .
and painting you into a corner. you do not want to be associated with this attorney.58 THE PSYCHIATRIST AS EXPERT WITNESS. it is always unethical. guided by your input as to what you expect to testify to at trial. SECOND EDITION answers for you. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. the interrogatory is sworn testimony. obtaining admissions. 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. even worse. In addition. The obvious prophylaxis and remedy is to attend carefully not only to the content of what your lawyer puts down as your expected testimony but also to the specific choice of words being used. If you discover this to have occurred. On occasion. reasoning that they can always modify their opinions at trial when the right questions are asked. This approach saves you from having to retract misstatements on cross-examination. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. However. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. your attorney will advise you as to what requests for information or documents will be objected to or refused. the expert. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). either from clinical evidence or experience or from facts in the database. . based on his or her interpretation of the rules of evidence. It is critical that everything in your interrogatory be something that you have already decided you are able to support. If you have never given a deposition or you feel a bit shaky about the procedure. read every such document before it is turned in. For example. The Psychiatrist in Court: A Survival Guide. I advise you to withdraw from (or refuse to take) the case. Opposing attorneys usually follow one of three agendas. Do not attempt to decide what is or is not objectionable yourself. hyperbole hurts you. or some combination of the three: getting your opinion. review Chapter 5 in the companion volume to this book. that is an attorney’s function. without retaining you at all. Depositions The second major area of discovery is the deposition. attorneys sometimes ask you for your tax returns of the last 5 years.
depositions are occasionally. scheduling problems. for instance. as the Anglo-Saxons phrased it. attempts to ambush the other side at trial by testimony previously omitted may subject you to abuse on cross-examination for your duplicity in not giving that opinion during deposition. however. the attorney is not averse to discovering precisely those points that will help his or her side of the case. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. the defendant. during the course of the deposition. Attorneys also stress that the deposition is their one chance to find out what you have to say. you are ethically obligated to so inform your attorney. select rebuttal witnesses. 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. over and above what has been conveyed in reports or interrogatories. a telephone conference. and deadlines may dictate this suboptimal condition. inform his or her experts about facts or issues to pay attention to. and so on. but this is a subintention within the larger discovery framework. This discovery function is a completely legitimate task and one with which you should cooperate fully. to empty your wordhoard. This information may or may not trigger a supplemental step for you in the form of an interrogatory. When you subsequently receive. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. the attorney. time considerations. In this latter context. who is in turn obligated to inform the attorney on the other side of your new opinion. This ploy usually can be defused by your attorney. The attorney can then prepare cross-examination. or a full-fledged repeat deposition. Of course. On the other hand. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. the plaintiff. Just answer the question. as a way of ensuring that your opinions may be brought out at trial. and so on. admissions and concessions of points or . Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. and—as a result of reviewing the facts or statements in that new document—your opinion materially changes in some way (other than merely being strengthened). if any. the police. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. taken before the entire database has been acquired or reviewed by the experts. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. but not ideally. a witness’s deposition or medical record that you had not seen before your own deposition.
. however. under oath. raised many possibilities. is the final standard. When you later give testimony in court. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. or damages—the entire gamut of forensic possibilities. Truth. he denied to the admitting physician that he had any violent intent. The answer was no. fairness. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. that is. Accuracy addresses the clarity of your vision in relation to the known facts in the case. competence. of course.. and accuracy (3). 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. also under oath. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness.60 THE PSYCHIATRIST AS EXPERT WITNESS. In a wrongful commitment case against the hospital. even though it was the preadmission history. Your Goals for the Deposition One scholar has described the witness’s goals as truth. On arrival at the hospital. what are we to believe. Doctor? Were you lying then or are you lying now?” Your vigilance to being painted into a corner by the deposing attorney is justified by the fact that there are many subtle variations of this locked-in approach. so that your opinion is constrained or limited in a way that decreases its impact. The points may relate to guilt. based on paranoid-sounding content. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. This procedure elicits sworn testimony. any contradiction is obviously damaging to your credibility: “You swore this now and that then. insanity. to kill coworkers. not the mental status by itself.e. negligence. conceptually. A patient was committed because of threats. For example. that justified the admission. much was made of this testimony. At trial. You are locked in to that testimony. of course. SECOND EDITION views detrimental to the other (i. your) side of the case. many attorneys would view themselves as highly successful in this effort if they could only dilute the force of your opinion or obtain agreement with a point that is or even sounds close to a concession. His mental status was not particularly demonstrative of symptoms of mental illness. although the history. Indeed.
it is an essential part of the evolution of a case and thus your role in it. 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. aware of the serious weakness of the substantive aspects of their case. Still others.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. as noted above. intense concentration sustained over hours is hard work. will spend hours inching through the expert’s credentials. however. Unfortunately. looking for dirt before even addressing the instant case. several factors urge clearing substantial blocks of time for deposition. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. The Need for Concentration The concepts previously mentioned should make clear that a deposition is not a mere formality to be gotten out of the way and over with. and your planned testimony. To do your job. you must be rested. if more time turns out to be required. A small number of attorneys attempt to wear down the expert by sheer passage of time. alert. More details about this necessity are discussed later in this chapter. The expert should clear a full day for the deposition to be on the safe side. another deposition date can be scheduled. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. Some attorneys will have such a primitive view of the essentials of the case that they will flail about over the entire field of psychiatry. Prepare for this. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. try to eliminate distractions. . Get enough sleep the night before the deposition. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. focused. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. Occasionally. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. hoping to hit the key points if only by accident. and vigilant at all times. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). Rather. your opinions (and their limitations). using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. If you do not go home after a deposition feeling tired and drained. this also takes a toll on the court reporter.
warning. “The patient gave no sign. or you knew and didn’t act. so you were negligent. to be an appropriate way of determining competence in the clinical situation. ask to hear it again or have it read back. Note. it is serious. or evidence of a propensity for violence. his act could . Second. ask that it be broken down. are you seriously telling this court that that sentence [quoted from an article] is one which instructs the forensic witness and the medical health [sic] treater that. let me answer all three components. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. yes. I am serious. you can give a useful compound answer to a compound question. they have to enter into a dialogue with their patient. no. On rare occasions. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. Question (attorney for staff member): Knowing what we know today.62 THE PSYCHIATRIST AS EXPERT WITNESS. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. the case manager’s lack of understanding might be negligent. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. which I codirect. this could be used to instruct both the forensic assessor and the treating clinician as to a means of determining the capacity to enter into informed consent.] Answer (by case manager): I don’t think I would agree with that. Question: So. in order to determine competence. in the following example. If there is the slightest doubt. And the third part of your question is. therefore. First. but it is quite risky and may compromise clarity. A more effective answer might have been. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. I don’t—I wouldn’t agree with you there. yes. so you were negligent. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. can we agree that on [date of murder] you did not have a clear understanding of [patient’s] propensity for violence? [Questioner assumes there was a propensity in the patient—a hindsight view—hence. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. If the question is compound or complex. 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.
the patient manifested rapid press of speech. not what others have told you? [The attorney tightens that very screw.] Answer: Gee.” would be perfectly okay. and grandiosity. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. the answer. vulgarity. For example. the totality of symptoms did so). It is unlikely. from a previous shift—is universal practice. In addition. not the only possibilities. making a chart entry based on what you were told by other staff —for example. no.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. or did you make that entry based on information given to you by others? [These are. and too extensive an answer to deposition questions. I sure hope I saw him because I usually don’t write things unless they are true. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. The following excerpt of testimony given by a naive fact witness. which might be used against her nursing colleagues. that the witness specifically remembers such a detail. social obnoxiousness in various ways. challenge. When seen. . “I don’t recall. 5 years and hundreds of patients later. [The witness sets her own standard of care. [This is not an answer to the question.] Answer: Right. of course. any good nurse does that. did not constitute sufficient evidence of bipolar disorder (although. The deposing attorney inquired. you write down what you have observed. testifying 5 years after a suicide. in a vacuum. Note that an excellent and self-contained answer to such a question or line of questions is. Obviously. the witness should decline to answer yes or no to such a question. not the individual element.”] Question: Is that the procedure in which you make notes. a patient with apparent bipolar disorder challenged an involuntary commitment. of course. Gee. right. Her answer ignores the fact that the record does not always note the source of the clinical data. reveals the hazards of too effusive. too discursive. “In a vacuum. But this witness has set a standard for herself: “hope for truth.Discovery and Depositions 63 neither be foreseen nor be prevented.] Yet another deposition tactic is what I call gerrymandering the data. Question: Did you observe [patient] attending those meetings. paranoia. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. Clinical data also can be cut into discrete segments to attempt to refute.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. moreover. or weaken certain conclusions (4).
Do not tolerate this interruption. Answers Deposition answers are drawn from a surprisingly shallow pool. shakes. in the belief that your pause means you have finished. drugs. lack of time frame. If your concentration slips and you give an answer that you later believe was wrong or even misleading. your attorney may be trying to call your attention to something. Spell unusual names. terms. Be careful about overlapping speech. nods. incomprehensible questions. Giving the stenographer your business card before the deposition is a highly useful courtesy. Some key points made in that volume are the hazards of guessing. in essence.” reflect a moment on why the time frame might be important in relation to that particular question. If any of these summary phrases do not trigger recognition. Pausing allows you to replay the question in your head and to think about your answer. Recall that the written transcript is the durable version of the deposition.” “I don’t recall. The pause also allows other attorneys to object. because the stenographer cannot record winks. clearly. and the importance of speaking slowly. “yes. shrugs. They are. The Psychiatrist in Court: A Survival Guide. and so on. pause a moment.” “I don’t know.” “no. but sometimes they do so deliberately to distract you or to break your concentration. If your attorney says. SECOND EDITION The Pregnant Pause After the question is asked. 3. each speaker should finish before the other begins. Correct any errors. the trap of double negatives in the questions. not only for the spelling of your name but for contact after the deposition for questions.” or a short narrative response that contains the question so that the response.64 THE PSYCHIATRIST AS EXPERT WITNESS. “Objection. Overlapping dialogue is awkward or impossible for the reporter. whose written record will be the actual form of the deposition in all future contexts. (See also Chapter 5 in the companion volume. Also remember to listen carefully to the objection. not your glib response in the deposition room. Other useful basic tips include the following: 1. who cannot take down two simultaneous conversations and produce a clear record. insist on a time frame. or you might infer something useful from the type of objection posed. 2. and other myoclonic responses. in effect. cannot be quoted out of context. instruct you not to answer. and carefully for the stenographer. usually accidentally. a garbled record from too-fast speech wastes everyone’s time and money. Attorneys may sometimes interrupt your answer. and the like.) Your answers must be verbal and aloud. Insist on finishing your answer to your satisfaction. Speak slower than usual. immediately correct . review the corresponding discussions in the companion volume.
. However. but leaving the error on the record means having to retract it on cross-examination. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. I tell a lie. Therefore.) When to Throw It Away In my consultative experience. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting.” (3.” Of course. would you agree that a patient’s sui- .To tell the truth. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. exercise this option. No. “Doctor. the deposition may be paused for that consultation. . this may be phrased as when to throw away the “throwaway” questions. . you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. the entire deposition takes place under oath and under penalty of perjury. if you are concerned specifically about a matter of privilege that may govern your answer. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. the doctor might answer: “Well.Discovery and Depositions 65 it on the record. . . As a deponent witness. . When in doubt. 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.. Therefore. for example. the deposing attorney may ask. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. pp. To err is human. 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.If I said that.6]. Second. but I can’t say that any of them were [sic] precisely like this one. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. First.. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. In a suicide malpractice case. because no two fractures are exactly alike. Two points about this problem should be kept in mind. (The question of coaching is more extensively addressed elsewhere [5. Therefore. he could accurately answer in the negative. where you are retained by the defense.. I’d be lying.
of course. an attorney may look ostentatiously at his or her watch and say. Remember that the failure to write something down may be below the standard of care. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. wait until it gets ridiculous. have some water. and you answer it.” Wait to relax only after the stenographer has put away the machinery. still. Quibbling over the possible exceptions or equivocating in some way helps no one. check your watch. not unlike some patients in psychotherapy whose doorway pauses—“oh. Occasionally. the novice witness relaxes and loses focus. just one more thing”—contain vital material. may attempt to get some off-the-record insight literally in the doorway. but the lack of the note did not cause the suicide. having inexplicably found his or her second wind. With an encouraging smile the attorney looks expectantly at you without saying anything. . Your retaining attorney may also get into the act.66 THE PSYCHIATRIST AS EXPERT WITNESS. Subjected to the silent treatment. influenced by the TV show Columbo. make the concession. on the record. thinking about dinner and work to do later. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. When the answer is that clear. throw it away. is “It ain’t over till it’s over.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. and we’ll be done. It is not the defendant’s negligence that is at stake in this situation but your credibility. 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. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. The moral here. now begins to fire rapidly at the witness. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. but you know enough not to get involved in that “thing. Doctor. by the way. “Just a few more questions. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer.” At that point. in the colorful argot of the national pastime. and move on. The attorney asks a question. an attorney.
therefore. rather than asking about. Note how the first question was a total loss and had to be rejected completely. 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). “I don’t know” or “I don’t remember” is a fully appropriate answer.” . I find your question a little confusing.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. This method sometimes involves carefully answering the question that the attorney should have asked. but I’m in favor of sensitivity. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can.Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. the subject matter. No expert is expected to be an expert in everything or to remember everything. make sure you include the question in your answer on those occasions so that no one is misled.. that we can’t isolate ourselves with notions of “I’m not part of our society.” in a manner to ignore those feelings. using categorization. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. if you’re grossly suicidal and you have access to guns and drugs and alcohol. For example.. The only valid answer is that those questions are outside your area of expertise.. as is “That is outside my area of expertise. and this response is perfectly appropriate. Some questions are curious because the attorney appears to be flailing at. and answer that part. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. they often fail to realize that they do not have forensic evidence to back up those notions. 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. “I understand you to be asking me.” Avoid the narcissistic trap of “I can answer anything..and the answer to that question is ... Question: Isn’t it true that sensitivity to the humanness of our problem is one that needs to be dealt with in a medical field.
threaten to go before the judge to plead their points. As noted. authentic or merely theatrical. firm. The only vital difference is the way in which you speak. an attorney became so enraged that he stood up and threw his pen violently on the table so that bits of plastic flew into the faces of the other attorneys. scream at each other. more pedantic. When everyone is through. I know that’s a good hospital. There are good hospitals out there. that is not your problem. for example.” This assumption is dangerous because it suggests bias. In one deposition. should that become necessary. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. after which the expert examines for evidence either way. and demonstrate other regressive behavior. Clinicians may be tempted to call on their clinical skills to temper violence. “I can continue until midnight. you will make it worse. meaning that you assume that the documents are what they seem to be. . you will be addressing him or her in slow. stand up in their chairs.68 THE PSYCHIATRIST AS EXPERT WITNESS. “Well. stay seated and keep quiet until it is over. In the specific malpractice context. the next question will be coming your way. occurs rarely may throw the novice witness: a roaring fight between attorneys.” This position of timeless patience puts the onus appropriately on the attorney to move things along. mediate the debate. The only assumption you should make is good faith. this implies arranging coverage for your patients should a crisis occur. unfailingly polite. Assumptions The deposing attorney may ask. fortunately. more boring. Your attitude should convey. “Did you make any assumptions about the case before you began?” You may be tempted to say. A situation that. and so on. or facilitate calm negotiation. but your belief might interfere with your detection of negligence in this case. Because the stenographer (and not the jury) is your audience. The two sides. you assumed it was a medical record in good faith. never losing your cool. and you might well know some of them.” as it were). clear. the parties are really the parties in the case. so I assumed that they knew what they were doing. and far less friendly and instructional than it would to a jury. heretofore quiet and almost appearing bored by the proceedings. Do not do anything. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. That is as it should be. careful speech that may be more formal. If the admission note turns out to be a forgery. no matter how generic or basic it may seem. This fight is an attorney-to-attorney matter. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. clear. more technical.
Moreover. Be sure to maintain a sense of proportion about these references and their utility. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. But both. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. Novice experts. inescapably. may imitate the attorneys by overvaluing these texts and ignoring their limits. the examining attorney may ask you if a specific text (book. Remember. Some experts respond that the DSMs are not authoritative. no one wrote a previously published book or article with the exact case in mind in which you are involved.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. you cannot take the position that no text is authoritative. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. However. 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. of course. but ask to be shown to which one the attorney is referring. or article) is authoritative in the field or in the subject of the current case. yet the clinical diagnosis and treatment still may meet the standard of care. the disclaimer at the front disavows its applicability in many forensic contexts. In a criminal context.” Learned Treatises In the course of a deposition. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: .” For the above reasons the answer to the question as to whether you made assumptions should not be “no. and innocent until proven otherwise. competent. both sources are “authoritative”: PDR contains the actual package insert information about drugs. For example. this is a matter of risk management for the pharmaceutical companies. note whether you agree or disagree in general with the stated points. including those parts which conflict with your testimony. to make an informal clinical diagnosis. then. Comparably. have their limits. After reading the entry carefully. these publications are not uniform in authoritativeness. Most modern books and articles have multiple authors or editors. In one limited sense. chapter. you may be asked to supply the names of authoritative texts yourself. desperate for stable islands of consensus in the tossing seas of uncertainty. merely official. Alternatively. and DSM gives the formal criteria for diagnoses. the parallel assumption would be “Sane. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage.
Under some circumstances. Above all.. In addition. check the accuracy of any numbers (9). remember to go to bed early.. well before the deposition. statements. Frankly admit if anything has been removed from your file. police reports. this conversation is protected. whose transcript will endure and be used for any impeachment possible. you will need to review a wide array of information. Meet with the attorney and review the issues. SECOND EDITION When quoting the literature.70 THE PSYCHIATRIST AS EXPERT WITNESS. Arrange to do so with the attorney sufficiently early. Give both (or several) points of view if they exist.e. consult your own attorney. The usual audience of the standard deposition is the stenographer. (8. you also may want to meet one more time with the attorney’s client before the deposition. 571) Final Predeposition Preparations Before the actual deposition. let the attorneys determine whether it is discoverable. Obviously. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. actually visiting a site may be important. record notes. Any notes. the camera is . in the video deposition. In some cases. it is wise to review—and if necessary. The latter may be privileged. be balanced and accurate. summaries. but this is not your problem. and so on so that you can buttress all your conclusions with specific elements from the database.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. or “cheat sheets” (i. review your files as diligently as if you were going to trial. outlines or summaries for quick reference) may be subject to subpoena for the deposition. Also. Many attorneys anticipate this problem and send only bland correspondence. You must exercise some care in these discussions as they may be discoverable. especially if details remain unclear or if over time the clinical condition has changed or evolved. and you may have to furnish copies to opposing counsel. In contrast. Your attorney then can communicate with the retaining attorney. p. rehearse—the details of the links between your conclusions and the facts. The Video Deposition A modern wrinkle on the procedure is the video deposition. If you are really unsure about something. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. laboratory values... some discuss details of trial strategy in their letters to you.
When you receive the deposition transcript. careful. but under some circumstances the notarization can be waived. Remember to keep your language level. Most court reporters are extremely good at their jobs. “It’s an us-and-them situation” was rendered “It’s an S and M situation. the retaining attorney. jargon-free. or the deposing attorney for distribution to the parties. you should try to direct your gaze toward the camera lens. If the expert is known to be unavailable for the trial dates. who may see the video displayed in addition to—or. the deponent expert should always ask for a personal copy to review in preparation for trial. and pedantic level of the ordinary deposition but in basic. and must beware of inappropriate gestures and personal bodily attentions. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. . the expert may wish to retain a copy for teaching purposes after the case is over. Recall that omission of a comma. After the Deposition Always ask to read and sign the deposition. This approach risks eventually being papered out of house and home. and the deponent signs under pains and penalties of perjury. this time in a permanent record. not at the ponderous. you are under constant scrutiny. The video deposition presents a number of possible pitfalls. representing the jury. read it very carefully.” 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. of the word “not. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. the video may also serve as the vehicle (in this case.” and rendering. at times.Discovery and Depositions 71 the audience. instead of—your personal appearance in court. As in the trial described in the next chapter. but errors can creep in. In the current economy. “irresponsible” as “responsible” are small changes with profound results. If the deposition has been particularly instructive or noteworthy. checking for errors and typos. say. At least one copy of the transcript is returned either to the court reporter. trial-suited English. 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. juror-friendly. My personal favorite is when the phrase. the only vehicle) for the expert’s testimony.
MD. South Bend. MD. National Institute for Trial Advocacy. Defense Counsel Journal 4:174–179. 2003 Kaplan HI. 1999 Babitsky S. 9. Simon RI. Willliams & Wilkins. The Practical Lawyer 33:69– 78. Woodruff MS: Deposing experts. 1982 Gutheil TG. 36. The Practical Lawyer 39:55–63. Med Econ 82:45–48. Vols 1 and 2.72 THE PSYCHIATRIST AS EXPERT WITNESS. 1996 2. 4. 6th Edition. J Am Acad Psychiatry Law 31:6–9. J Am Acad Psychiatry Law 34:18–22. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 3. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 1987 . Milwaukee. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 6. 2008 Rice B: Malpractice: how to survive a deposition. 1983 Gutheil TG. 1993 Malone DM. IN. Mills MJ: Legal conceptualization. Williams & Wilkins. Baltimore. SEAK. MA. 8. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. 2001 Baker TO: Operator’s Manual for a Witness Chair. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. J Am Acad Psychiatry Law 29:313–318. Gutheil TG. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. 5. 2005 Suplee DR. SEAK. Lippincott. SECOND EDITION References 1. 39–40. legal fictions. 2007 Gutheil TG: Reflections on coaching by attorneys. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Baltimore. Current Psychiatry 7: 25–28. WI. Falmouth. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. Defense Research Institute. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Suggested Readings Babitsky S. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. Simon RI. Falmouth. 2006 Gutheil TG. 7. Child Abuse Negl 17:571–572. MA. Bull Am Acad Psychiatry Law 10:17–27.
2. If you are testifying away from home. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. trials do come around every so often. For the expert witness. examining the companion volume. I addressed the six Ps of trial preparation. For the expert. Preparation. 73 . Planning. the same six Ps should be reviewed but with a slightly different emphasis. settled. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. and devising means of locating key passages in the database quickly. pled out.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. Nevertheless. review that chapter. In this chapter. For experts who have spent little or no time in court. I review some of the basic courtroom procedures. is recommended as an orientation. If you are uncertain about the guidelines for trial preparation. and they are the subject of this chapter. 1. 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. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. The Psychiatrist in Court: A Survival Guide.
the floor of the courthouse on which the courtroom is located. you need to know through choice and practice how you will convey your opinion to the jury. the contradictory evidence. If you have a disability. You also need to hear how the trial is going. parking arrangements.74 THE PSYCHIATRIST AS EXPERT WITNESS. and the data relevant to the other side of the case. The pretrial conference is probably one of the most important stages of preparation for trial. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). Define the limits of your testimony. Even more distressing. 7. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. Pretrial conference. practice sketching any visual aids you will need for the courtroom blackboard. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. your publications (especially those relevant to this case). admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. 4. It is not enough to know the database. what previous testimony has been given. On cross-examination. the location of the trial. and what the emotional climate of the courtroom is. Review the weaknesses in your opinion. You should rehearse ways of expressing information to the jury. 5. what the judge is like. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. Clarify in your own mind how you plan to deal with questions about your fees. and the expected cross-examination. Insist on this conference if the attorney is equivocal or resistant to the idea. Confirm travel arrangements and other details. and all such details. . the unknown issues. Clarify and confirm your travel arrangements. Practice. Build in contingency plans for the possibility that the trial extends into the next day at least. the relevant literature. and select useful examples from your experience to make central points. Presentation. Pitfalls. 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. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. Most of these matters are best handled on direct examination where some measure of control can be exercised. Consider taking a taxicab to local courts to avoid parking hassles. 6. and your past experiences. location of restrooms. 3.
its methodologic reliability. may occur prior to trial (occasionally. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. Practical Matters Preparing to Go On Many courts sequester witnesses. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. Regrettably. to be able to articulate the bases and reasoning behind those conclusions.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. where the jury will be and what . Before going into the courtroom.e. sit down. Such a hearing. which are sometimes in obscure locations in older courthouses. that is. but if you are the only one standing. particularly experts. this kind of potentially valuable hearing and screening device can also be abused (2). experts are not allowed to be present in court for the testimony of any other witnesses. Supreme Court case. Wait in the public seats until actually called to the stand. you will find it valuable to locate the restrooms and telephones. 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. From the viewpoint of the expert. When you are allowed to hear the testimony of other witnesses. the best approach is to exercise care about the methods used to reach conclusions. named for the plaintiff in an important U. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. but the essence is that the trial court judge is expected to screen challenged expert testimony on the basis of its relevance to the instant case. and to ensure that recognized approaches to the subject matter are chosen.. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. rise for the judge’s entrance. Once in the courtroom. The topic requires more extensive discussion (1). much valuable information can be gained and the tone of the room determined. 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. and whether the testimony will fulfill the legally required expert function in the court.S.
while the experts are testifying. or your own table of contents devised for more extensive documents. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. 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. a particular citation is. the attorneys will have it).g. essential medical records . tabs. Note again the importance of having and practicing a plan of organization. Key documents might include my report and interview notes. Recall that in almost every case.. and 3) you may become lost in excessive data. the opposing attorney cannot search through them for something with which to impeach your testimony. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. dog-eared pages. The expert appears more confident and knowledgeable about the case. yellow self-stick notes. The expert should determine which of these two approaches is more suitable. 2) as noted. My own preference is to strip down what is brought. as are all the substantiating data. if needed. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. What to Bring Experts and their retaining attorneys vary in whether they prefer. When no documents are before you on the stand. because his or her opinion is being given from memory. 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). in an often extensive chart or deposition. 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.76 THE PSYCHIATRIST AS EXPERT WITNESS. The downside is the need to remember a vast amount of detail and to recall where. Each preference has its pros and cons. even for experienced experts. only a copy of the expert report that is already in evidence or only a curriculum vitae). the entire database is usually present at both the attorneys’ tables and therefore is immediately available. On the other hand. Note that some anxiety is normal. SECOND EDITION the room looks like from the hot seat). and ensures the accuracy of your recollection by direct verification. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text.
If I need the actual page or quote. This table of contents enables speedy reference to key facts. Do not wear or carry your cellular telephone or beeper. Finally. what you wear should fit well and be well broken in.e. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. and you will not go wrong. showing off how busy you are and how court is taking you away from really important matters. the bailiff usually will keep it filled. A handy pen or pencil. during breaks. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination.. A cough drop or throat lozenge will moisten your mouth while placing less of a burden on your bladder but may create a speech impediment. eccentricity. highlighting marker. your mode of dress should convey the fact that you are a professional in the courtroom on business. It is unclear whether either strategy is superior to the other. If you are completely uncertain about what to wear to court. Avoid either ostentation. or if you must. Demeanor Being on the stand is not unlike being filmed. 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 must. and check in. I can use my table together with the attorney’s copy of the deposition. the defendant or . Indeed. glass. testifying is thirst-provoking work. For depositions of less central players in the case. in the sense that you are usually under observation by someone—the bailiff.The Expert in Trial 77 (pruned to relevant periods if needed). affidavits. or carafe of water is an excellent idea. ornamentation. I take to the stand a one-page table of contents (i. do not wear new clothes. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. Arranging for a cup. ensure that they are turned off. Above all. and cutting-edge high-drama fashion or excessive informality. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. depositions. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. 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. perhaps comfort should rule. Arrange appropriate coverage so that you do not have to worry about being reached. and similar data. Stick to the conservative business mien. the bored juror.
and you want the jury to understand it. flip. With discretion. you know or should know that it is not personal and has nothing to do with you. obnoxiously facetious. sneering.78 THE PSYCHIATRIST AS EXPERT WITNESS. as follows. fluffy. SECOND EDITION plaintiff. Doctor?”). in court it should be treated as a double-edged weapon likely to turn and cut the wielder. and stuffy. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. Beware of “involuntary” gestures. . and sarcastic. demeans you. but of the jury or the entire process. an attorney—at all times. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. Doctor. humor directed against yourself may show that you do not take yourself too seriously. get interested in what you have to say and stay interested. such as rolling your eyes at the jury when a particularly fatuous question is asked. Without such alliance. you are likely to be too involved and therefore possibly biased. Such reactions may be misconstrued as disrespectful. all such chips are apparent) is particularly unconvincing. Be clear. you win the exchange. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. There is no reason for a teacher to get mad. humor may seem disrespectful. and you are unfailingly polite. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. it is important. for example) as body language consistent with candor. attorney moves on to another subject]. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. If you become huffy or outright mad. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. not credible. Avoid personal body attentions (such as scratching) as much as possible. or degrades you. A witness with an apparent chip on his or her shoulder (and in court. If the attorney is hostile. 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. not of the attorney in question. Even when an attorney attacks you. impugns you. Scholars recommend keeping the front of your body open (by not folding your arms. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. Make your point because it matters. Your identity on the stand is that of teacher. however. or obtuse to the seriousness of the issue. even when someone else is speaking. Attorney (with a slight sneer): Isn’t it true.
making roving eye contact with various jurors whenever possible. understandable manner that brings the details together in a recognizable gestalt. theoretical. jargon laden. good teachers are lively and interesting. project. avoid discussing unconscious dynamics unless absolutely needed for your point. and “waffley.” but only a few things reach reasonable medical certainty).e. a juror who cannot hear may be hesitant about saying so in open court. explain. 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. not just a classroom exercise. not stuffy.” Make your point as concretely as necessary and back it up with hard data from the database. ask if you can be heard by the farthest ranks of jurors. they are usually poorly received by juries. If you must use. Although you are a teacher.. pedantic. to accept a possibility as such (almost anything is “possible. evasive. and to admit that rules have exceptions. to agree that some things happen sometimes. They are not excessively academic. or respond to jargon. In general. If no microphone is provided. . the most common beginner’s error in the courtroom is the inability to “throw it away. or prone to nit-picking. Testimony Direct testimony should unfold in an organized manner. concede a remote possibility and move on. but without intimidating staring. Direct your extended remarks to the jury. or waxing argumentative rather than instructive. Speak to the most distant juror to be sure your voice is audible.” that is. what fools these jargonists be). Haggling with the attorney over a tiny abstruse point. As occurs during the depositions noted in the previous chapter. the concept is sometimes rendered mathematically as a 51% certainty. If a microphone is available.The Expert in Trial 79 Being fluffy means being too abstract. Finally. yet may ultimately give up on your testimony after straining to hear for too long. to concede a point that really doesn’t mean much. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. as a result of your careful and thoughtful preparation with your attorney. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. It is not the same as “certainty” (100% sure). If in any doubt about your speech volume. the trial is a human process. blunts your argument and weakens your credibility. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. even inhibited souls will nod if they can hear. Keep in mind the expert’s role in telling the story in a coherent.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Unlike formal, even pedantic deposition language, which is directed to the court reporter and aims at clarity above all to develop a valid transcript, trial language is juror-friendly, basic, and may be more extensive than the austere, brief answers from deposition. Asked an open-ended question (“Can you describe that process?”), answer until the matter is complete; if the jury appears to be losing focus, or if you see the dreaded “eye glaze” sign, wrap up your answer and wait for the next question. Remember that no matter how intensely you may feel about anything, you must scrupulously avoid any of the mildest forms of profanity or blasphemy, even as rhetorical devices. Recall that, in some parts of the country, and for some jurors, saying “Lord, no!” for emphasis in answer to a question involves breaking one of the Ten Commandments. There are various reasons for the expert to use a blackboard, marker board, or flip chart (for further discussion, see Chapter 6 in The Psychiatrist in Court: A Survival Guide). The expert should prepare some information that can be presented effectively by using one of these aids, if only to break the talking-heads monotony of witness after witness. Make sure you can be heard when using the blackboard, marker board, or flip chart because, if there is a microphone, you will now be away from it. Do not be ashamed to boom it out. Similarly, be sure to write large enough to be read by the farthest juror; ask the far ranks if they can see the first letter or picture you write or draw. If not, increase the scale. Novice experts may not be aware that the witness who faces the blackboard and mumbles the sound-track accompaniment to his micrographia is not only ineffective but also actively alienating, possibly even insulting, the jury. The companion volume makes the following point:
In addition, when you pick up a piece of chalk in your hand and you stand in front of the blackboard, you become, as a transference object, the most trusted figure in common human experience: the teacher. The teacher knows. The juror may not know what the capital of Virginia is—or what chlorpromazine is used for—but knows the teacher knows. The power of the image transcends what you actually draw; what counts is the apparent effort to get your point across, because juries respond to the idea that you are trying to help them understand. (3, p. 62)
When responding to cross-examination, maintain the identical level of interest, animation, politeness, and responsiveness as you demonstrated on direct examination (although you are allowed to become more alert). The expert who is warm, winning, and discursive on direct examination only to turn crabbed, argumentative, defensive, and guarded on cross-examination is communicating only bias. You are telling the truth; what difference does it make which side is asking the questions? The hostile, attacking attorney who
The Expert in Trial
meets with your unfailing politeness and persistent civility is perpetrating suicide, not homicide. If either side asks a genuinely excellent question, say so but only if you mean it. Answering cross-examination questions does not require that you help out the attorney with various possible misunderstandings he or she may have about psychiatry; just answer the question. The only exception to this rule is when so profound a misunderstanding of some fact is taking place that for you to answer the question would merely precipitate and perpetuate a French farce situation of two parties on totally different wavelengths; this situation is not funny in court. Clarify the point, then wait for the next question.
Some experts develop a code with their attorney to aid covering certain points brought out on cross-examination. For example, expert and attorney may agree that if the expert prefaces an answer on cross-examination with, “Well, that’s an interesting point...,” it means that the expert wishes to be asked about the issue on redirect. Such an arrangement may be considered, but in practice it may be more cumbersome and distracting than it is worth. In a personal communication (K. Lipez, November 1996), an experienced judge noted that his opinion of an expert falls if the expert has failed to anticipate, and seems unprepared for, an obvious line of questioning. For example, in a criminal trial with a proposed insanity defense, the question of malingering is highly relevant. An expert who seems surprised at this issue being brought out on cross-examination reveals serious lacunae in understanding the forensic issues involved. The same judge cautioned against too facile a psychiatric or psychological explanation of human behavior. The posture that everything can be explained (or even worse, “I can explain everything”) is unconvincing to juries and may even imply that the examinee has succeeded in manipulating the psychiatrist. Finally, I suggest giving up the fantasy of being able to predict entirely the effect of what you say on the jury: the jury will decide how the jury will decide. In a case in which a psychiatrist was being sued for malpractice in a patient’s suicide, I gave extensive defense testimony and remarked, strictly in passing, that, although it would not be ethical to give my own independent diagnosis—because I had not seen the patient—the diagnosis given by those who had seen the patient was fully consistent with the recorded symptoms. A poll of the jury after the defense verdict revealed that the jury had been impressed and perhaps even swayed by the fact that the only witnesses who used the word ethical were I and the physician-defendant.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine . In fact, given the actual frequency of sexual misconduct complaints by BPD patients against their therapists, patients with BPD are statistically more likely to be initiators of true claims than false ones.) Horrified at this evolving debacle and unable to stop it or even comment on it until the next break, I took refuge where all witnesses in such a spot should take it: the absolute narrow truth. The attorney might catch on or might not, might be baffled or might not, might be annoyed with you afterward or might not, but those are not your problems. The oath always provides sanctuary in a storm. A similar dilemma faces the testifying expert when some significant fact is revealed for the first time during trial testimony—a fact that changes your opinion. Do not panic and feel guilty, abashed, or inadequate. This revelation may be the lawyer’s lapse, but it is not your problem. Your job is to tell the truth; if the facts substantively change, an ethical expert’s opinion would be expected to change.
Remember to keep your testimony basic and jargon free. Illustrate your points with analogies and metaphors that you believe the average jury will follow. The following is an example of how you might discuss in court the mechanism of action of a selective serotonin reuptake inhibitor:
You know that the spark plugs on your car work by sending a spark across a narrow gap (show by using your fingers). Well, the nerves in your nervous system, including the nerves that control your mood, communicate in the same way (sketch a synapse). The upstream nerve sends an electrical current (draw a lightning bolt) down to this spark gap called a synapse (write word on board), and when it gets there, the current releases little blobs of chemicals like tiny water balloons. These float across the spark gap and hit certain “hot buttons” on the end of the downstream nerve and set off the next electrical current (draw another lightning bolt in the downstream nerve). Now that these chemicals are out there, how do you turn them off for the next bolt? The upstream nerve sucks them back up like a vacuum cleaner, and the system is ready for the next nerve impulse. Now this medication blocks
” Realistically. as if to convey. The jury hears the testimony twice—an aid to both memory and persuasion. even if the technical details are lost in the shuffle. As you can grasp by merely reading this response aloud. Over the years. The expert is on direct examination by his own retaining attorney. That is how this kind of antidepressant or mood elevator works. any testimony from this witness would be bought and meaningless. the dirt stays on the floor. just like putting your hand over the vacuum nozzle. if you do that. 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. Recall that this is direct examination by his own retaining attorney. Consider practicing such a description with your attorney or colleagues or friends. Respect the juror. “I don’t care to waste my time on this whore.” preferably said in a mildly contemptuous tone. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. such an avoidance of cross-examination is sound trial strategy. In the same way. 83 Although this mode of explanation may seem cumbersome. depressed— um—and seeking help. and the expert has theoretically prepared to tell the story in a coherent manner. may record every pause.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. Um—as the events became closer to the—um—incident itself [the murder]. the chemicals stay in the spark gap and keep working so that your mood is lifted. This is a powerful argument for at least organizing your thoughts before you begin to testify. I have been impressed by their ability to grasp what is at issue. and throat clear that you emit on the stand. stutter.The Expert in Trial (draw a barrier) this process. and slavishly but perfectly appropriately. “I have no questions for this witness. . it is numbing to a jury. some scholars assert. do not underestimate juries.” but this appreciation is lost if the jury cannot understand or follow your description. the jury usually appreciates being given the “inside story. grunt. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. The hazards of lack of practice are revealed by this following segment from an actual murder trial. 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. the best cross-examination is. Adventures in Cross-Examination For experienced experts.
never ask a question to which you do not already know the answer. deposition. but in this instance it is not. Instead.84 THE PSYCHIATRIST AS EXPERT WITNESS. which may be asked on cross. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. interrogatory. The tight rein on which you are held may make it difficult to get your opinion out there. or alternatively. ask only questions to which only one answer is possible (fittingly.” . “Although the present case is a clear exception to that rule. can they not?” • “Another expert might come to a different conclusion. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). what you say is often true in other cases.. such as the previously listed leading questions. If you want to say. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. “That’s generally true. or publications. The attorney may know the answer to a particular question from the expert’s report. First.” are almost always answered yes on the theory that almost anything is possible). Doctor?” The only possible truthful answer to all the aforementioned questions is yes. Even those attorneys who opt to engage in cross-examination are usually (but. The following are some examples of the last (all are leading questions. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. equivocating hurts you.”) or exhibitionism (“Watch me shine!”).” the attorney may move on to the next question after you have said. isn’t that right.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. and even the attorney’s competitive feelings directed toward the expert.. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. It is better to say. “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. attorneys do not perform this simple but effective maneuver. however. the question answers itself ). the attorney’s wish or need to have the client see the attorney doing something. SECOND EDITION Most often. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony.. or the answer may be obvious from the question (i. the attorney’s competitive strivings with the opposing attorney or firm. no problem.e. questions beginning “Is it possible. surprisingly. the attorney asks closed questions. Throw it away.
the attorney may quote something that you wrote or lectured on. Practically. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. “I’m going to take a moment to think about that. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. state that you cannot answer yes or no. Always ask to see the context if you do not immediately and completely recall it. and to allow your attorney to object. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words.” This response may be foreclosed by the judge directing you to answer anyway. to consider your answer carefully. say it. or have you dozed off? It is best to state.” “no. At times. we are going to take our midmorning break right now. The key word is truthfully. Scholars liken agreeing to this either-or approach to signing a blank check. a judge may even decide to declare a recess: “While you are thinking. Breaks During breaks that occur in the middle of cross-examination. If either will do so. and a mere yes or no may fail to convey the “whole truth.” The break gives you ample time to think. You took an oath to tell the whole truth. Doctor. if not. some sources suggest answering at the outset. a question will require more time for prolonged thought or searching of your memory. some attorneys advise not discussing your testimony. this type of questioning means that you have only three answers available: “yes.” and do so.” Listen with intense attention to the question. We’ll reconvene in 15 minutes. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. Quotes On cross-examination.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no. to be sure you are clear about the question. consequently. if needed. and think seriously about whether yes or no will represent the whole truth. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . At such moments.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). 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.
you have confused loyalty to your attorney with the oath to tell the truth. but let’s assume it did not). The Final Opinion During the course of expert consultation. or inadequately grounded in data. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. Crises Various crises may strike while you are on the stand. and some additional material may have come your way just before the trial (which. others find telephone calls distracting and let whoever is covering for them handle things. Use your own judgment and knowledge of your biorhythms. 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. Now you must testify on the witness stand. For the lunch break. your opinion. you would have been obligated to so inform your attorney. is your actual trial testimony. Subsequent communications may be labeled supplementary reports to keep the sequence clear. I recommend avoiding eating heavily. Some experts want to call their offices during breaks. In theory. had it changed your opinion. . in the trunk of your car. This change is as it should be. Your final opinion. The thrust of this line of questioning is to convey that your opinion is premature. Later. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. These include biological and physiological crises or circumstantial ones. as a “preliminary” report. the one that counts. even worse. such as the discovery that you have left a key document in your suitcase across the courtroom or. because it is based on data. you may have written a report after reviewing some quantity of material. if requested. incomplete. could change with complete validity based on some new fact that you hear for the first time during the trial.86 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION sions with your own personal lawyer are protected). If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. Some experts have only an iced tea for lunch and forgo any other intake to avoid postprandial torpor and the dulling of attention that may accompany it. you may have been deposed.
Your job as expert is important to the case. at odds with your objectivity. More troublingly. measured breathing. it poses a dilemma of a no-win situation. wave at the jury box (“So long. Forensic etiquette requires that you just leave. you seem to be acknowledged . “Thank you. “You (or the witness) may step down” or “Thank you. or weak. What do you care what happens? You only testify under oath. one of the parties or even one of the attorneys reaches out to shake my hand. Do not hang around to hear what other witnesses say. as always. it invariably conveys the strong suggestion of partisanship. On occasion as I have left the courtroom. fans!”). nod politely to the jury. you will appear inept. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. and go. when you are through. sickly. While this is a common and respectful courtesy. get down from the stand. Your Honor. or emit other social behaviors. Deal with the problem and then continue with your task with restored focus. by needing to go to the bathroom. entitled. stretch your limbs behind the screen of the stand. you exit.” At this point you say. to see the outcome. it is preferable just to hang in there. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. The End of the Affair Finally. If a delaying tactic is not used. and both grudgingly acknowledge that neither has any more questions for you. Focus on slow. The judge will almost always grant this. and sit more upright to relieve tension. for example. No one knows the effect of these gestures. This behavior conveys too much interest in the outcome for someone who is not a party to the case.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. If you do shake hands.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). Some more extroverted experts thank the jury out loud. Doctor. Do not be inhibited by fears that. Ask the judge if you may take a brief break for personal reasons. childish. conservativeness is probably better (the discreet nod rather than the glad-hand wave). or to learn of other subsequent activity. that’s all. and serious distractions impair your work. The judge dismisses you by saying. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. Do not stop to chat or debrief with the attorney.
always seek feedback and reactions to your participation. “juror countertransference” toward the attorneys. 2000 . If you have traveled far with a heavy load of database materials. Because this brief volume can serve only as an introduction. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. Forces beyond your control and outside your testimony—such as the demographics of juror selection. you seem rude. some forget. as much as possible about what happened and why it happened. while acknowledging that experience is still. if you do not or you ignore the outstretched hand. consider making advance arrangements with the attorney so that he or she will hold on to your case materials and retain or discard them as desired. by letter or telephone. however. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. this task is for the lawyers. A far more detailed analysis of testimony can be found elsewhere (5). Finally. Take only your report. SECOND EDITION for good (but partisan) work. Gutheil TG. and the like—impinge on trial outcome.88 THE PSYCHIATRIST AS EXPERT WITNESS. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. Surprisingly. J Psychiatry Law 28:235–251. It is perfectly appropriate after some time has passed to call and ask the outcome. Most courteous attorneys will inform you later. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. 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. as always. the best teacher. References 1. For your personal development as an expert. 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.
The Expert in Trial 2.
Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993
Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.
It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91
for example: “Doctor. You’ll be out of there by lunchtime. two trials in different states will be called simultaneously. sharp. SECOND EDITION for months without any forensic activity whatsoever. the other side may be willing to have your testimony inserted into their side of the case. The last two priorities are interview and report. and telephone calls to resolve them. In extreme circumstances.. Because your attorney has the most interest in your presence. The tension here is that some courts. which also require several people to synchronize their schedules. but things happen. The second priority is depositions. You can count on your eyeballs the number of times this clockwork model actu- . a forensic interview. comes before a report. he or she will be exerting the greatest efforts to make it all work out. This type of schedule is close to reality. and serious matters hang in the balance. hours. I know you have a busy schedule. others are not. If a trial and a deposition are scheduled for the same time. attorneys. Trials take first priority.. of course. with suitable preparation of the jury. maybe 2. Travel glitches (discussed in Chapter 10. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. so let’s put you on first at 9:00 A .” Smile politely when you hear these words but make expansive plans. You may have a little room to maneuver in terms of the order in which you testify. Large numbers of people are involved. I can’t imagine my direct examination taking more than an hour. add another layer of challenge.” in this volume). You must do the best you can with what you’ve got. flexible. but during the very week that you have scheduled four weddings and a funeral. and other-side attorneys are reasonable. Because your reports can be done at any time of the day or night. and accommodating.92 THE PSYCHIATRIST AS EXPERT WITNESS. 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.e. theoretically. As a rule of thumb.M. although obviously fewer persons and a shorter time frame are involved than are for trial. the hierarchy of urgency and therefore attempted postponement (or at worst. cancellation) is as follows. court dockets are crowded and leave little flexibility. An attorney who planned to have you “bat cleanup” (i. requiring two parties to match schedules. You’ll probably be cross-examined for 1. the trial should take precedence. negotiation. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. “The Expert on the Road. tops. with a deposition for a third case.
the odd juror gets stuck in traffic. Washington. Bull Am Acad Psychiatry Law 24:533–546.Some Pointers on Expert Witness Practice 93 ally occurs. a judge will treat the time between 9:00 and 9:30 A . References 1.M. Why? Although some judges are scrupulously punctual. The judge assigns a long lunch and hears another few motions just afterward. The subject may represent some kind of taboo because it is rarely discussed.) 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. J Psychiatr Pract 12:50–54. However. 1996 Suggested Readings Gutheil TG. (More suggestions on scheduling are included in Chapter 10 in this volume.” In addition. DC. no clear conclusions can be drawn. 2002 Reid WH: Forensic practice: a day in the life. difficult choices may have to be made. Gutheil TG: “Paraforensic” aspects of expert witness practice. 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. American Psychiatric Publishing. 2006 . Gutheil TG. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. negotiation may be possible for some scheduling conflicts but not always. and family. 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. J Am Acad Psychiatry Law 32:356–358. some are not. it is not uncommon for an out-by-noon case to extend into the next day. 2004 Kearney AJ. Occasionally. The attorneys wrangle over whether some document relevant to the next witness is admissible. Although my colleagues and I tried to study this issue formally (2). The jury takes a long midmorning break. Commons ML: Trading forensic and family commitments. 2. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Thus. partner. In the end.
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I focus on writing the full-fledged forensic report. or for a disability determination. for a worker’s compensation claim. a defendant’s criminal responsibility. or a full evaluation of a person’s competence to stand trial.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. some basic principles on letter writing to the court are described and are not repeated in this chapter. to serve as a witness. an attorney. In The Psychiatrist in Court: A Survival Guide. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. In this chapter. In all such cases. or a physician’s deviation from the standard of care. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. 95 . allowing careful legal analysis and reflection on whether you will be helpful on the case. a description of an independent medical examination for a personal injury suit. a court. or to serve on a jury. 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.
painstaking preparation. In other situations.96 THE PSYCHIATRIST AS EXPERT WITNESS. These are all powerful arguments for careful thought. Resnick also identifies the “four principles of good writing”: clarity. without detailed discussion of the bases or reasoning behind those conclusions. Consequently. 2) a summary report. has generously and graciously granted me permission to cite some of his advice on report writing.. then. General Remarks The report as a whole should meet certain criteria. For similar reasons. the attorney may ask that you not furnish a report. detailed report. I refer to him explicitly in the text). SECOND EDITION Alternatively. It should contain everything that you need to support your opinion and no irrelevant material. simplicity. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. M. Despite these useful functions. Forensic report writing. It should be just long enough to cover the essential information but not so long as to exhaust the reader. may take three major forms (with variations possible. According to Dr. It should stand alone. because the first is self-explanatory and the second is an extract of the third. and meticulous proofing and review of any report you produce. “Reports should be self-sufficient.D. I emphasize the third form. the report may present materials or approaches that the attorney does not wish to share with the other side. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter.” Dr. Obviously. In this chapter. and humanity. . Phillip J. Critical documents should be briefly summarized within the report. a leading forensic scholar who lectures on forensic report writing at the annual forensic review course of the American Academy of Psychiatry and the Law and elsewhere. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. which states all of your conclusions and the analysis of all the relevant substantiating data. for which I am most grateful (where I cite his material. brevity. all should govern the form of the report. which in that jurisdiction is discoverable by the other side. Without referring to other documents. the reader should be able to understand how the opinion was reached from the data in the report. and 3) the full. Resnick. which presents your database and conclusions only. Resnick. of course): 1) no report.
that is. One model by Dr. otherwise. emotional injury or psychiatric malpractice).” and subsequent contributions. The heading should also include your letterhead and the date of the report. legal pleadings. . In that case.” • “I examined Ms. or State v.” The Database After identifying the occasion. John Johnson). The Occasion The occasion.g.. police reports. Jones et al. or the type of case in a civil matter (e... Resnick is included at the end of this chapter.. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. of the report should address the question of why you are writing this report. Smith v.. use a standard business letter format. One way is to provide the case citation or caption in whole or in brief (e.. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. 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). sometimes called the referral.” Some attorneys. think of your report as a memorandum and use a standardized format. the case or docket number if known. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. Identifying data can be presented in a number of ways. I examined (name of examinee) with regard to (forensic issue). Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. additions.. and depositions.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report. reasoning that the occasion is obvious from context. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . Include any interviews per- ..g. the charges in a criminal case. or emendations should be titled “Supplementary Report.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs).
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. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. SECOND EDITION formed and their date and length. The remainder of the report is thus treated as optional reading. A typical conclusion in a malpractice case.g. or other) is free to stop there and make decisions about future directions in which the process should go. all depositions). This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. including interview data) and your total clinical background of training (what you were taught) and expe- . The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. it is my professional opinion. Note the wording. or according to some natural. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. for example. ..98 THE PSYCHIATRIST AS EXPERT WITNESS. held to a reasonable degree of medical certainty. 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. chronologically. attorney. and so on. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). no convincing case has been made for the inherent superiority of either approach. The documents may be listed alphabetically. First. (or. Although each group has a rationale. in the treatment of (plaintiff ).. you are free to choose your favorite. the overall basis is described as both the database (all the material reviewed in the case. about the disposition. logical grouping (e. The rationale for placing the conclusion last is that such a structure allows the reader to develop an evolving (and therefore deeper) sense of the expert’s reasoning as it may (or may not) lead to the conclusion. that. all medical reports. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training .
malpractice. although representing the core of your opinion. or other. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. Resnick states. If your conclusion is stated at the outset.” Multiple Realities In civil cases. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue.. In these cases. Supporting Data After the conclusion. is essentially boilerplate (i. 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). insanity. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. Third. Second.e. the expert should scrupulously avoid assuming one side is correct. more likely than not). sometimes different spins on the truth. In criminal cases involving the insanity defense. this section should contain extracts of previous material directly supporting the points you are making. “Reasons supporting opinions should be clearly and fully stated. the defendant usually has admitted the act for which he or she is charged.” In every case. effectiveness. you can present the supporting material in several ways. offer alternative opinions. Dr. Finally. but occasionally. The reader should not have to use his/her own inferences to understand the point. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. your conclusions should be presented in . and credibility as an expert witness. As Dr. it is predictable that plaintiff and defendant tell different stories. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. Remember that the conclusion.e. “If there are two versions of the facts. Resnick explains.. be it competence. standardized legal language). 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. usually. If your conclusion comes at the end of the report. sometimes frankly contradictory. Dr.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).
Postreport Negotiations After your report is finished and has been sent to the attorney.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. (Remember you must be candid about everything you believe to be true. or agency for which it has been prepared. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. which make for a stronger report. These are not weaknesses of the report. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. summarizing.if defendant’s version is true. or data (such as inadmissible material. you may receive requests to alter the report in some ways. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. then .. or to change the substance of your opinions. it is essential that you identify and remain ready to testify under oath to such contradicting factors if asked under cross-examination (or direct examination for that matter).100 THE PSYCHIATRIST AS EXPERT WITNESS..” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. even if it has been removed from your report for brevity. but generally there is no inherent problem . Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. asking for the addition of new material not supplied to you earlier. then . to alter or misrepresent facts in the database. A case example was discussed in Chapter 3 (“First Principles”) of this volume. some are not. these should be recorded.” This approach prevents your seeming to side with one party in the case. Some requested alterations are fully ethical. then . attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. SECOND EDITION the following form: “If the allegations are true. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. and shortening the report by aggressive editing.. Constraints. and Rebuttals If there have been any constraints of time.. Limits. money. interview of plaintiff blocked by attorney... There is no absolute guideline for this procedure. and deleting. Whichever approach you actually take in your written report. judge. it would be a weakness not to acknowledge these factors candidly. on the contrary. A challenging gray zone is negotiating about wording.
Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. . 5. 14. You also may ask to see a senior colleague’s report under an agreement of confidentiality. The Criminal Report: An Example The following is Dr. but it may get you started. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field.1 1. 16. intensity (likely. very likely. 12. 7. 2. Resnick’s outline for a typical criminal report. 4. 10. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 6. extremely likely). Be careful about changing wording concerning issues of causation. 15. 13. 8. 17. 3. and effect of emotional injuries—three common problem areas. 11. 9. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. 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.
Hess AK. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 1987. 23. Am J Psychiatry 143:164–169. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. New York. Petrilla J. 3rd Edition. 21. pp 577–605 Weiner IB: Writing forensic reports. Wiley. Falmouth. pp 511–528 . New York. 22.102 18. 20. report writing and expert testimony. THE PSYCHIATRIST AS EXPERT WITNESS. 1986 Melton GB. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. Guilford Press. MA. 2007. et al (eds): Consultation. 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. in Handbook of Forensic Psychology. 19. Edited by Weiner IB. 25. SEAK. Poythress NG. 24.
“Yes! We (or the corporation) will take your case. to connote the Harvard connection). In this chapter. a letterhead. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. and we drafted an announcement. and inefficacies. We retained an industrial designer to help create a logo (highlighting crimson. Unfortunately.) 103 .” The ability to say yes to all comers seemed like a good idea at the time. 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. heard of. embarrassments. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. (I believe this excluded only admiralty practice and the law of the sea. We sent this announcement to every attorney we had ever worked with. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. In the late 1970s. We will let you know shortly which of our directors will be working with you. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses.
but the net effect for all this time. and pride and confidence in your work versus hired gun certainty or grandiosity. inform. sharing useful information versus being pushy. “Types of Typical Cases. The problem with some forms of getting the word out is that you may not know how a particular listing is regarded within the legal field.. Most recipients almost certainly awarded our announcement the coveted circular file disposition. opportunistic. that is. commercialized hustling for business—or the appearance thereof. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. The Delicate Balance In all approaches to marketing. word of mouth). Ordinary advertising in Lawyers’ Weekly. Support for this theory came from Harvey Research in 1994. clinicians) led to forensic referrals: word of mouth. list. an expert’s marketing strategy shifts to generating favorable word of mouth. . is suspect and not reliable as an approach (see also Chapter 4. and unspecialize. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i.” in this volume). The Key Approach As time went on. write. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. 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. SECOND EDITION All this effort did nothing. for example. Based on this reasoning. The balance must be struck between dualities such as generating word of mouth versus hucksterism. speak. and expense resembled our own responses to offers that come in the mail to sell us insurance.104 THE PSYCHIATRIST AS EXPERT WITNESS. We received a few form announcements from two or three firms about their offerings.e. The result was tantamount to letting a drop of water fall into a large lake. thought. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy.
a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. they may think of you at that point. First. they will be useful to you in several ways. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. If you inform your peer groups about your availability. you may wish to send a short. Although your forensic peers may seem to be your competition. or use it in some other appropriate way. and send it to attorneys and clinicians. It is unclear whether the brochure is superior to the announcement and may be better utilized as the second item of information sent after an initial communication. will see you in action in deposition or trial. and factual. 2) your forensic peer group. Some experts replace the announcement with a minibrochure: a single. Serving as a guardian ad litem (GAL. Attorneys whom you can inform include your own attorney. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. informative. Avoid any hype. Among other roles.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). . trifold sheet of fine paper with a brief description of the expert and the services. 3) attorneys. Alumni bulletins and class reunions are also opportunities to get the word out. including listing services you are not truly expert in. they may turn away a case because of a conflict of interest. it should be tasteful. or other reasons. Thus. the GAL may do a preliminary survey of the psychiatric aspects of a case. Finally. For your clinical peers. and lawyer neighbors and friends who might pass your name along. previous associations with the attorneys on the other side. Opposing attorneys. hand it out at a lecture. too little time. polite letter informing local judges of your availability for forensic services. judges may need your services. of course. the announcement should display the professionalism that you plan to bring to the work. Describe those services you can authentically offer. If you are moving into a new town. 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. if you have one. and 4) judges. in effect. then reporting to the court.
or commentary and have it published. the topics of which appear on the screens of attorneys’ computer searches. Write In our computerized modern age. this skill is acquired. review. or established continuing medical education programs. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. In my opinion. but the wounds of experience are probably and ultimately the best teacher. good visibility also can be obtained by letters to the editor of major journals reporting on a single case or responding to the articles or letters of other contributors. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. and similar humiliations. . The APA Public Affairs Office provides some guidance in dealing with the media. departmental conferences. these publications may be explored. which are often seeking a stable of experts to comment on medicolegal stories of the moment. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). 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. such as clinicians and lawyers. Admittedly. Your podium demeanor may convey at least a little about your expected performance on the witness stand.106 THE PSYCHIATRIST AS EXPERT WITNESS. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. You will be exposed to attorneys and legislators. Although it is useful exposure and a valuable resource to write an analysis. Finally. try to become involved in local media such as call-in shows. sign up as an entry in an existing lecture series. no one will show. Beat the Press (2). many referrals to psychiatrists come from publications. however. both of whom may be potential referral sources. One reference. Become active in your district branch legislative committees and processes. ambush journalism. such as hospital grand rounds. Instead. SECOND EDITION List Listings can be effective as well. may be helpful in dealing with the media. and media exposure may open you to crank calls.
In fact. based on your fine performance at the deposition. From the absolute onset of your career.” This is a losing strategy. Beware of making or seeming to make extravagant claims for your knowledge. a point that cannot be overemphasized. extremely public. Conservatively stating your incontrovertible credentials (actual appointments. 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. certifica- . 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. Consider taking on some pro bono work as well. and your course as hired gun may be marked.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. Even minor. as it were—but the Web site is perhaps the most explicit. trivial cases allow you to be observed in action by potential employers. I will work only on high-profile. one turn to the Dark Side of the Force. some critical considerations are the following: 1. skills. No case too small. widely publicized mass murders. integrity must be your watchword. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. In the same vein. even at the outset. Have the site professionally designed with attention to taste. Be extremely careful about posting your qualifications. wherein you follow the ancient maxim. place in the profession. 3. by definition. It does not matter if the case is trivial or small potatoes. and interest. no matter how slight the issue. If you decide to use a Web site. What About Web Sites? In the modern era the use of Web sites has increased for all professions. You will derive no income. modesty. and other aggrandizing statements that are. It may then take you years of work to unblemish your reputation. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. some broker organizations guarantee your opinion. 2. Do not bend the truth to satisfy the attorney. training. Begin your career by unspecializing. including this one. but you will obtain valuable exposure.
Finally. but I will take it upon myself to find somebody good who can. sound. Dattilio FM. recall the value of brokering. Remember to thank your referral sources. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. and demanding of patience. Salt Lake City. at times trying. 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. choose only those experts whom you would be confident to have on your side if you were being sued for something. Return telephone calls are the easiest marketing device and one of the most effective. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. conflict. but its importance cannot be overstated: return telephone calls promptly. UT. for referrals. J Psychiatry Law 31:5–19. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. SECOND EDITION tions. Additional Pointers The issue may seem trivial.” Although you are feeding the competition. Sadoff RL. including attorneys and fellow clinicians. but no other method is as reliable. specific required expertise). Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. . you are also revealing yourself as a good first stop on the search for a good expert. 2002 2.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). American Book Business Press. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. 2003 Fulton S.108 THE PSYCHIATRIST AS EXPERT WITNESS. References 1. Building a practice on word of mouth is slow. and effective. etc. Guyant A: Beat the Press. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. In analogy with clinical referrals. “I can’t take this case (because of time. publications. You are saying to the calling attorney.
. Massachusetts. Inc. 1997 Feder HA: Succeeding as an Expert Witness. WW Norton. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. Tageh Press.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. . out of Falmouth. CO. Glenwood Springs. New York. I disclose that I have lectured for SEAK numerous times over the years.
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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. As always. M. William Reid. the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips. this chapter will be too obvious and not relevant to your needs. 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. examinations. I address some tips and strategies for the expert who is inexperienced in traveling to cases.. In this chapter. mockery. Simon. 111 . The author is indebted to Robert I. and opprobrium. M. or interviews..C H A P T E R 10 The Expert on the Road: Some Travel Tips for Testifying Away Author’s preliminary note: This chapter in the first edition proved to be a powerful though unexpected stimulus to controversy.D. seasoned travelers may skip the chapter entirely.D.
and return that day or the following one. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. the Internet. 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. matches. the process takes even longer. testify or interview the next day. These services can book flights. Another useful reference is Jet Smart (2). on rare occasion. looks professional. Running shoes also allow you to sprint through airports to . Consult with significant others for their opinions if needed. Some General Recommendations Travel Information Travel guides are available everywhere. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. to ensure that it still fits. the emerging online travel services (Expedia and the like) may prove useful. cars. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. you may make the appropriate adjustments. and your colleagues. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. Opt for crushproof fabrics and materials whenever possible. stay overnight in a hotel or similar setting. especially if you have not worn it for a while. For cases that involve land travel. 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. Still other guides are provided in the suggested readings at the end of this chapter. and general information can be obtained from books. and hotels directly and save you much time and stress on the telephone or online. Alternatively. 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. 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. especially in flight.112 THE PSYCHIATRIST AS EXPERT WITNESS. and one pair of shoes. polished shoes for men and women). and is in good repair. Try on everything before you pack it.
but not alcoholic beverages. you may bill for that time but not for the ticket because the first case paid the whole trip already. if you are flying to a case and use air travel time to review the case. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. a useful principle is to avoid double billing in any form. 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. which are. fortunately. in-room movies. 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. Seek equitable division of costs for multiple-case trips. If you review a different case on the way back. do not bill for sleep (you do it anyway). For example. for example. Separate business from personal comfort. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. then. for one or two telephone calls per day to the office to check on things. or 2-hour long-distance calls to your paramour.g. The Ethics of Billing Bill strictly according to your fee agreement.. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. It is possible. 1 day at your day rate. the literature is relatively unhelpful (the issue of double billing. massages. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. If the trial runs longer than a day or so. and for the regular three meals. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. is addressed nowhere in the forensic literature). Until data emerge. Avoid checking baggage if you can.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. for one telephone call to the family. You have enough to worry about . because some law firms are slow to reimburse hotel and plane expenses). rare but extremely stressful when they do occur. do not bill separately for that work because you are already being paid a day rate.
do not skimp or economize on the roll-along suitcase. remedy. a small roll of duct tape. These should include sewing items. multifunction “pharmacy” also should be included. Current travel restrictions have shifted the allocation of liquids. In addition. The Kit Whether you call it a travel kit. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. or toiletries case. such as a variety of buttons and threads to match your clothes. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. these roll-alongs often fit either in the overhead compartment or. Remember also that your kit should contain items that permit repair. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. In psychoanalytic theory. It is definitely a basic principle for assembling your kit. decongestants. . a small. and creams to quart-size plastic bags. eyeglass screwdrivers and replacement screws. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. and cleaning.114 THE PSYCHIATRIST AS EXPERT WITNESS. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. which may also be prepacked. but you may wish to experiment with a friend’s suitcase. with a little applied topology. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. it is indispensable to your successful travel ventures. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. you may opt to wear the suit or outfit on the plane and guard it in transit. 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. light flashlight for power outages and searching under beds for lost items. and pack the rest of the gear. What you take should have similar versatility. Wear your workout or running shoes on the plane. A small. safety pins in various sizes. and similar medications. extra eyeglasses or contacts if you wear them. Dopp kit. lotions. In general. stain-remover sticks that do not contain toxic petrochemicals. even under the seat in some cases. the principle of multiple function is one of the basics of a dynamic understanding of mental life. Alternatively. makeup bag. Other useful miscellaneous items include adhesive bandages of various sizes and types. and rubber bands. antacids. extra shoelaces. and string. and extra combs. not to mention the current airline custom of charging extra.
fly out. Secrets of Staying If you are unfamiliar with the expert art of “fly in. because someone else is paying your way to the location. but you can buy your own compact version. it is more professional to meet with your attorney the night before the . try breathing through a moistened towel for short periods. on very dry flights. for you to get out of the toxic smoke and gases to safety. often hooked to a travel alarm clock. fails). If you have a disability. in theory. institutional hotel or motel and cadging free lodging with friends or relatives in the area. but some precautions seem sensible. You breathe through a filter that lasts long enough. call the airline early to check on facilities. This item is available through a number of catalogs. testify. procedures. remember to carry light extension cords and voltage adapters.” this discussion will be helpful. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. experienced travelers can skip this discussion. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. Second. and special arrangements. I carry a compact “smoke hood. First. Almost all modern hotels in the United States have smoke detectors. as well as extra disks and the instruction manual if not on the hard drive already. The traveling expert is sometimes torn between staying at a cold. or order special low-fat meals.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. Drink water steadily to avoid travel dehydration. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. although occasionally. I recommend the hotel or motel for several reasons. Besides a small flashlight. The latter appears at first glance both socially desirable and economical. Seriously consider avoiding airline food entirely. you are undistracted by social obligations and family strife or background noise. Emergency Items Neurotic fears can certainly flower when you travel.
If a paper clip or safety pin does not suspend the cloth or towel well. Remoisten it as needed. back up the call with your travel alarm. if desired. Whether the room’s air system is heating in winter or cooling in summer. hotels provide irons. My first move on entering a hotel room. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. . and headachy on the stand. is to make a beeline to adjust the hotel’s alarm clock or clock radio. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. Don’t forget to set the room thermostat to your accustomed household temperature. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. A simple but effective method is to soak a washcloth or hand towel in cold water. wring it out thoroughly so that it doesn’t drip. after I put down my luggage.116 THE PSYCHIATRIST AS EXPERT WITNESS. It is probably safest to avoid all alcohol during the trip before testimony. After the trial. SECOND EDITION trial in a hotel room or conference room.M. My second move often is to arrange a do-it-yourself humidification of the room. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. the air is invariably dry in most hotels. congested. 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. of course. 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. obviously you should eat lightly and stick to what is familiar to you. Secrets of Eating In traveling to court. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . 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. you are free to visit friends and family at your own discretion. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. but not all. this is. a situation that can leave you hoarse. have your martini on the airplane home after it is all over. Some. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. an essential part of effective testimony. Experimenting with culinary exotica is asking for a case of turista at worst. nausea on the witness stand also may be misinterpreted. after all. a business trip.
When possible. as noted. and similar relaxants. Ordinary AM radio static and the sound of surf are two examples of white noise. or others) at bedtime. without aftereffects. hot baths.. the chatter of housekeeping staff just outside your door) is white noise. spending some time in direct sunlight may be helpful in adjusting your biologic clock. actual memory loss can occur—the last thing you need. Many travelers find it helpful to block out morning sunlight with the drapes. by using either alcohol or sleeping pills (barbiturates. and with sleeping pills. or even a different time zone. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. of course. but all the data are not in. you can have a serious meal without ill effect. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. so you may have to carry some supplies in your pocket or purse. Setting the radio to a “nonstation” to generate static and the television to a “nonchannel” to get the sound that usually accompanies snow on the television screen (modern digital televisions usually do not permit this) are both methods of achieving this end.M. Catalogs sell portable battery-operated white-noise generators. also eat lightly. When you are up and awake. This term refers to sounds containing all frequencies. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. After court. I recommend it. either by closing them completely or fastening gaping fabrics with safety pins. What to Take to Court Courthouses are notably lacking in amenities.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. plan your trip to allow time for recovery from jet lag. benzodiazepines. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning.” sleep sound machines. breathing techniques. usually described in catalogs as “sound soothers. stain . A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . Far better results accrue from sleep hygiene maneuvers. just as white light contains all color wavelengths. These have ill effects. or similar terms. including hangovers. Examples include prescription medications that you need during the course of a long day.
2001 Simon RI. Celestial Arts Publishing. I welcome your suggestions and favorite travel tips. Although some of the pointers in this chapter probably state the obvious. et al. SECOND EDITION removal. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. Magellan’s International. Ten Speed Press. and a headache remedy for the obvious problem. Gutheil TG: The forensic expert practicing on the road: new hazards along the way.) Gutheil TG. Santa Barbara. Jossey-Bass. Berkeley. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. James E: The Secrets of Simple Packing (VHS videotape). CA. CA. WA. or refreshment. New York. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. 1988 (Incredibly detailed. J Am Acad Psychiatry Law 29:202– 206. Flying Cloud Publishing. 5. Miller PM: Expert witness billing practices revisited: a pilot study of further data. 2003 2.: Expert witness travel dilemmas: a pilot study of billing practices. CA. J Am Acad Psychiatry Law 26:21–26. Revised. Berkeley. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. References 1. San Francisco. with the emphasis on safety and security issues. Commons ML. I hope that these tips make your travel easier and less surprising. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler.118 THE PSYCHIATRIST AS EXPERT WITNESS. Commons ML. 1998 Gutheil TG. 1994 (An excellent guide to what to take and how to pack it. 3. Seattle. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. or throat lozenges. 1996 . cough drops.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag.) Savage P: The Safe Travel Book. sample wardrobes and general travel pointers included as well. 4. Villard. Psychiatric Annals 33:302–306. mints.) St. Slater FE.
expand. Simon. the more we serve this valuable and necessary function. which I cowrote with Robert I. 119 . consider reviewing the successor volume to this one. or render this text more useful.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. I welcome comments and suggestions from readers to correct. the reader. That book may fill in some of the blanks. (American Psychiatric Publishing 2002). Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). or have taken too much for granted about your background and experience in any portion of this text. The Psychiatrist in Court: A Survival Guide. If I have made too many assumptions about you. from all evidence. consider first reading the companion volume. and helpful testimony. M.D. effective. As always. Although some forces in society. to require our services in increasing numbers. if you wish to take your work to the next level. the courts will continue. On the other hand. decry the expert witness function and voice arguments for its abolition. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. The better we are at meeting the courts’ needs with ethical. including our medical colleagues.
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121 . is likely to be competent to consent to the interview). The main points about the form are the use of basic language. clarification that the forensic examination is not the practice of medicine..e. I read it or have the examinee read it at the start of the interview and answer questions. supplied for consideration. and the examinee’s attorney’s attestation that the examinee understands the form (i.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.
. in connection with my legal case. Dr. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. agree to have an examination by Dr. During this interview or interviews I will be asked a number of questions about myself.D. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. 4. the following: 1. Gutheil’s interview or interviews. Gutheil. Dr. or out loud in open court in a trial. most of which will be very personal. 2. 3. Dr. M. Gutheil will explain or has explained to me and I understand that Dr. Gutheil keep secret what I tell him. Gutheil will explain or has explained to me. Gutheil’s questions. that he is not acting as my physician or psychiatrist in doing this interview or interviews. Gutheil is a physician and a psychiatrist. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. I understand and agree that Dr. if needed. however. I understand. Because I am being interviewed in a legal matter. SECOND EDITION Consent for Forensic Examination by Thomas G. This means that Dr. or have no effect on my case that I can see.” or “update” interviews of me by Dr. . and I understand they will be part of the same examination and will follow all the above rules. (“Dr. Gutheil’s written report or out-loud statements for court may help my case. Dr. I understand that Dr. “follow-up. Gutheil may write that down for the record. Thomas Gutheil. I agree to give up my rights to have Dr. I understand and agree that Dr. in spoken depositions (where lawyers ask him questions). the person who has signed at the bottom of this letter. I also understand that I am not his patient in connection with or because of this interview or interviews. Gutheil. Gutheil”) I. nor will he suggest any treatments to me or for me. 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. and I understand. I understand that I can take breaks if I want to at any time during Dr. I agree to be interviewed. and I understand that no one can know which one it will be in advance. but if I refuse to give an answer or some answers. Dr. The examination will be one or more personal interviews.122 THE PSYCHIATRIST AS EXPERT WITNESS. 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. hurt my case. I understand and agree to additional repeat. Gutheil will not give me any medical or psychiatric treatment.
20 . he/she appears competent to understand it. Dr. Gutheil’s retaining attorney. or the court as provided by law.Appendix 1: Consent Form for Forensic Examination 123 5. Signed. Any report in relation to my case will not go to me but will go directly to my attorney. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. a court officer. of course. free to show it to me. I certify that I have answered any questions my client asked about the procedure. to my assessment. that individual is. Attorney for examinee Print name Date day of .
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rescheduling is at mutual convenience. $ for depositions. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. including portal-to-portal local travel (c). Gutheil. 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. (d) 125 . the radical revision presented here has evolved from that in the first edition for the same reasons. in addition. Gutheil shall be reimbursed for all time spent on the case. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. and the same due for cancellations that occur less than 72 hours in advance. at a rate of $ per hour plus expenses. and $ per hour for trial. Standard Letter of Agreement by Thomas G. (“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). Gutheil”) 1. M. Dr.D.
is the sole responsibility of the retaining attorney or insurer (i). Gutheil by name (h). any existing balance shall also have been paid 3 business days before departure (e). 3. (s) Note: Please send all case materials to (address) Date . Before such travel is undertaken. 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). The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. Failure to comply may void this agreement except for duties of confidentiality (l). please return one copy to Dr. A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. including travel by first-class conveyance and appropriate lodging if needed. and as a condition for its specific to this travel is exbeing undertaken. a retainer of $ pected 3 business days in advance. Dr.126 THE PSYCHIATRIST AS EXPERT WITNESS. made out to Dr. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). Overdue accounts may accrue interest at 6% per annum. SECOND EDITION per day 2. Dr. Signature below indicates agreement with all (r) these terms. The retaining attorney understands that my forensic work is not the practice of medicine. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. prorated (k). and examinations as discovery rules permit. Please note that because of vacation scheduling. irrespective of case outcome (j) or defaulted appearances. Gutheil will be unavailable for testimony in person during the month of August (f ). materials. For out-of-state travel. (q) 6. Payment in a timely (g) manner. For out-of-state evaluations or testimony. Gutheil. 5. 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). as an advance against which expenses are billed (p). Gutheil’s FID# is . the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. 4. Signed.
k. this clause makes that explicit. I recommend asking for this secondary retainer before travel. You are initially retained as a consultant. g. h. “Consideration” and “agreeing” are trigger words that signal to attorneys. the “clock” starts when you leave your home or office for court and stops when you return to office or home.Appendix 2: Standard Fee Agreement 127 Annotations a. “You’re right. m. Because you will be investing a fair amount in the travel costs. Your fee is. This information frees up the attorney to ask for continuance or rescheduling. others the same. for review. c. . attorneys are sometimes slow to reimburse travel expenses for interview. or trial. Doc. it saves everyone time and heartache if you spell it out. e. “portal-to-portal. f. but what can I do? That client just won’t honor his or her obligations. can constitute a bias. 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). Working for the client. that does not mean you should not be paid for the work already done. as it ethically should be. This is a standard rate of interest on overdue accounts and an incentive for timely payment. or even retain another expert. Some attorneys. If the retaining party is relentlessly slow. l. this statement makes the attorney agree to that possibility. based on their training.” d. To cut through nit-picking. make that clear so that you don’t waste a lot of time swapping checks between payees. If you do withdraw. will throw up their hands in mock exasperation and say. thus. If you are the sole proprietor. j. You have the right to request timely payment to prevent excessive backbalance buildup.” 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. dunned for appropriately earned fees. Every agreement must have an exit clause such as this one. you may decide to withdraw. moreover. A case decision that goes against the side retaining you is not grounds for nonpayment. deposition. If you know when your vacation is. b. For unexplained reasons. noncontingent. take a videotaped deposition. n. deposition. i. or trial travel. or a member of a corporation or group practice. Some experts charge differing rates. You must be free to withdraw from the case if the contract is breached. that this is a formal contract.
some experts simply submit additional invoices. and ethical incompatibilities. On rare occasions. The retainer is not only a means of establishing the contract but also an actual advance against expenses. and. others ask for a second retainer (see also Appendix 3 in this volume). identifies the attorney’s understanding that this is not the case. When this retainer is depleted. at no cost to the attorney but at lost time and possible income to you. legal. You have been sandbagged. because you did no work. Making the retainer nonrefundable tends to eliminate such shenanigans. these events do not weaken the contractual ties with the firm. Moreover. if the attorney is out of the country. Such attorneys may pay the retainer. The wording here. give you no work to do. making you ineligible for participation with the other side. You are here agreeing to accept signature from a different attorney or a paralegal. 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. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. r. SECOND EDITION o. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. parallel with the forensic consent form in Appendix 1. after settling the case. . alas.128 THE PSYCHIATRIST AS EXPERT WITNESS. q. has handed the case to another attorney. for example. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. s. or has left the firm. ask for their retainer back. p.
interviews with family members or other persons. the hourly 129 . I may require an additional retainer. psychiatric interview or evaluation. This retainer will constitute a credit balance until exhausted. consultation with counsel. LARRY H. and report preparation.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. If travel from my office is necessary to perform any of these services. Thereafter. Psychiatric services may include an initial consultation. review of records. Clinical and Forensic Psychiatry (Address) (Date) Re: (Case) Dear (Attorney): This will confirm our agreement regarding my providing psychiatric consulting services with regard to the above-referenced matter. if it appears that substantial services are yet to be rendered. M. Any credit balance remaining will be refunded upon the termination of my services. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. STRASBURGER.D. It is understood and agreed that timely payment for my service and expenses will be solely the responsibility of the attorney and is in no way contingent upon the outcome of any litigation or settlement.
photocopying. Please keep a copy of this letter for your records. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. SECOND EDITION rates will apply to portal-to-portal travel time. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. literature research. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. etc. including secretarial service. Time spent in preparing for testimony shall be billed at the hourly rate specified above. setting forth the nature of the services rendered since the prior billing. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. no refund of the retainer deposit will be made. I will send you a monthly statement. please so indicate by signing this letter and returning it to me with your check for the retainer. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . court order. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. 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. prior to my testimony. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. Larry H. If the foregoing fee basis meets with your approval.130 THE PSYCHIATRIST AS EXPERT WITNESS. M. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. along with a listing of out-of-pocket expenses.D. and all travel expenses will be reimbursed. Nor shall such failure relieve your obligation to have on deposit. postage. American Board of Psychiatry and Neurology Diplomate. compensation for my time in giving testimony shall be as follows: I shall be compensated at the rate of $ per half-day (4 hours or any part thereof ) or $ per full day (in excess of 4 hours). Sincerely. messenger services. Strasburger. Diplomate. the retainer discussed above. long-distance telephone calls. as prescribed by statute. court rule. Any excess over the retainer balance is due upon receipt. All travel shall be by first-class conveyance. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. expert or otherwise.
Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. SEAK. Falmouth. Falmouth. Falmouth. MA. All. SEAK. Falmouth. their quality is variable. provide at least some information useful for the psychiatric expert. this has many useful tips on trial demeanor and related issues. 1997 Babitsky S. SEAK. SEAK. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 2002 Babitsky S. however. These sources are meant to supplement those provided at the ends of the chapters in this book. MA. Babitsky S. IN. The Psychiatrist in Court: A Survival Guide. 2008 Ball D: Theater Tips and Strategies for Jury Trials. SEAK. National Institute for Trial Advocacy. South Bend. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses.) Binder RL: Liability for the psychiatric expert witness. Falmouth. Mangraviti JJ: How to Become a Dangerous Expert Witness. MA. MA. as well as those found in the companion volume. Falmouth. SEAK. 2003 Babitsky S. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. 2007 Babitsky S. Am J Psychiatry 159:1819–1825.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. MA. 2005 Babitsky S. not just psychiatry. Inevitably. MA. 1997 (Though aimed at attorneys. 2002 131 .
Danvers. 1995 Kwartner PP. Glenwood Springs. Lippincott. McClure Company. Tageh Press. at a more advanced level. CA. J Am Acad Psychiatry Law 34:482–491. Washington. New York. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. Mulligan WG. New York. 2008 Rogers R. New York. Horsham. 3rd Edition. Routledge/Taylor & Francis. Pennsylvania Bar Institute. Guilford Press. Williams & Wilkins. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. in Learning Forensic Assessment. Diamond. 2003 . New York. Simon RI. et al: Expert Witnesses: Direct and Cross Examination. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. PA. useful for checking credentials. James Publishing. 1994 Rabinoff MA. Oxford University Press. CO. Wiley Law. Adams KM. NJ. J Am Acad Psychiatry Law 29:313–318. New York. Covise LL. 2007. Commons ML. American Psychological Association. 1993 Dattilio FM. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Hillsdale. DC. MA. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses.) Gutheil TG. DC. Santa Ana.132 THE PSYCHIATRIST AS EXPERT WITNESS. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. 2006 Feder HA: Succeeding as an Expert Witness. 1908 (Purely for antiquarians and those interested in a classic from the last century. 2002 (This is designed as the successor book to the present one. pp 565– 588 McHale MJ. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. Baltimore. 2001 Isele WP: Under Oath: Tips for Testifying.) Dattilio FM. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. 2007 (Focuses specifically on the testimony phase of expert work. MD. Analytic Press. Edited by Jackson R.) Gutheil TG. PA. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. LRP Publications. 1993 Gutheil TG. Mechanicsburg. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. American Psychiatric Publishing. LRP Publications. Springer. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. 2nd Edition. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. New York.
Section of Litigation.SEAK. http://forensic-psych. 2003 Simon RI. A compendium of sources.aapl. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. with multiple resources. 1976 Zobel HB. J Am Acad Psychiatry Law 35:346–349. discussions. http://pipatl. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. American Bar Association. Kochansky J: The Complete Psychiatric Examination (videotape). and links. Shuman D: Clinical Manual of Psychiatry and Law. 2001 . 2nd Edition. publishing a vast range of information and offering excellent training courses. DC. SEAK. Beth Israel-Deaconess Medical Center. Harvard Medical School. and postings. American Psychiatric Press. MA.org: Web site of the Program in Psychiatry and the Law. http://www. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. 1997 Younger I: The Art of Cross Examination. and links. DC.com/forensic/f_psych. Mahwah. Falmouth. American Psychiatric Press. NJ. New York. 2004 (Study guide available since 2006. VA. Lightfoot. WW Norton. New York. American Psychiatric Press. Washington.html: Another multiple resource site. links. Gutheil TG. Washington.com: A resource-rich site with articles. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. Disclosure: This author is a founder. Anderson RM: Mastering Expert Testimony. 2007 Tsushima WT. Washington.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. DC. Wiley.com: Web site of author’s colleague HJ Bursztajn.com: A host of resources by two top attorneys. http://tncrimlaw. the national forensic psychiatric organization. Erlbaum.reidpsychiatry. Washington.) Simon RI. DC. All experts should join. MD. articles. 1993 Other Media http://www. http://www.org: The main Web site for the American Academy of Psychiatry and the Law. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. Gaynor Publishing.
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it has been accepted in actual cases that validate its use.” that is.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. two or more lawyers. the plaintiff is the (live) person bringing the suit. usually derived from statutes. and so on.. Decedent The person related to the case who has died. or tradition. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. for example. it may consist of records and documents. Competence is decision-specific and usually based on criteria. Competence The capacity or ability to deal with a certain task. the criteria for competence to make a will and for competence to stand trial are quite different.” it is always “competence for what?” The criteria for the different competencies are often distinct.” Deposition Usually believed to be the actual ceremony. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. It is not derived from the facts of the specific case at hand. Thus in a suicide malpractice case. consult your retaining attorney. that is simply plugged in to the appropriate place. on mainframes) and may be used in attempts to impeach the expert at trial. in which the witness. lab results. such as relatives or executors. Instead. in the context of discovery. legal documents such as depositions and interrogatories. there is no generic “competence. the practical and relevant definitions are provided. which will live on in perpetuity (i. Boilerplate Standardized legal language. 135 . the person who committed suicide is the “plaintiff’s decedent. case law. interview data.e. it is usually “court-tested. In reality the actual deposition is the transcript of the deposition. In case of ambiguity.
the fetus in an abortion decision).e. or an attorney-psychiatrist team. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. and various motions accomplish some of this phase.g. usually exchanged between opposing attorneys to alert them to your projected opinion. “Hired gun” A term. The role may include representing an unrepresented party (e. disability. Finding See “Opinion.. . challenging the party moving for a particular result. The IME may be resisted by some attorneys. may be used as well. to visit a nursing home where resides a person whose competence is being challenged) and other duties. thus decision maker rather than fact finder. The GAL may be thought of as a kind of utility infielder for the court. The GAL is usually an attorney.g. interrogatories. investigating in the field for the court to determine the situation leading to the proceeding (e. but a psychiatrist. but this is the established term. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. this limitation constrains the data gathering and the conclusions that may be drawn from the database. IME (independent medical examination) An important part of the discovery process in malpractice. borrowed from western and noir fiction and film. after the civil or criminal matter is set in motion. use of a private investigator to obtain information. the judge(s) and/or jury. in which information is gathered by the attorneys in order to prepare the case. in “trial by ambush” jurisdictions this step is skipped.. Novice experts see this as a misnomer. if so. See also “Trial by ambush. and other medical contexts not limited to psychiatry. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. since the goal of the process appears actually to be a decision. less ordinary procedures might include covert surveillance of a suspected malingerer.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation.. says what the attorney wants said rather than objective truth). and the like.136 THE PSYCHIATRIST AS EXPERT WITNESS.” Discovery That early phase of litigation. Depositions. Fact finder Practically speaking.
elaborate dinners and entertainments. and widely misunderstood by many of those. See also “Standard of care. “Phantom expert” An unethical ploy by some attorneys that invokes the expert’s name and/or reputation as a supposedly retained witness to intimidate or persuade the other side to drop or settle the case. the whole truth is often supplanted by “the admissible truth.” Nonsexual seduction A metaphoric term for various ways in which a retaining (or would-be retaining) attorney attempts to woo (influence) an expert to see the case from that attorney’s viewpoint. The expert offers an opinion derived from the database and training and experience.” of the expert’s efforts. promises of much future work if the opinion in the present case is favorable.Glossary 137 Insanity The legal concept whereby a person who did an otherwise criminal act is yet nonculpable because of criteria-specific impairments caused by mental illness or organicity. when confusion sets in. retreat to the oath. the oath is a place of safety to which. Like other sources of bias. disliked by almost all parties in a case as well as the general public. sometimes without even informing. the “bottom line. There are several . Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. Of course. Interrogatories A set of formal. the insanity evaluation is retrospective. falling below the standard of care in the care rendered in the instant case. The “seduction” may involve flattery. One of the most challenging assessments in all of forensic psychiatry. and nothing but the truth. In addition. these are prepared jointly by attorney and expert. and the like. Opinion The final phase. the whole truth. because variations from these answers at trial will be used actively in attempted impeachment. governed by legal criteria that vary by jurisdiction. Negligence In a medicolegal context. the witnesses are to testify in court only with testimony that they can swear to. its influence should be resisted by the expert. the court makes the finding that defines the outcome of the case. 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. In a practical sense. experts should review these carefully for accuracy as to their opinions. the expert can retreat when in doubt about what is going on or where the inquiry is going. tell the narrow truth. and let the chips fall where they may. but without actually retaining. the expert.” In practical terms.
this term usually refers to service without payment. Sequester The separation of witnesses. and the like.” which the expert must also know.” in suggested readings. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. The expert should be familiar with the relevant local standard and its definition. Pro bono Short for pro bono publico (for the public’s good).” “51% certainty. the origin of the frequently invoked mantra. administrative law procedures. which broadly applies to information that should not be shared with others in many contexts. particularly experts. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. Appendix 4. thus an attorney or an expert might perform a relevant duty for free. the standard is usually national but may be local—the “locality rule. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee.” “reasonable psychological certainty. a few find ways not to pay you what they owe. by excluding them from the courtroom. privilege is narrowly construed as applying in legal or quasi-legal contexts only. See Gutheil et al. 2001: “The Phantom Expert.138 THE PSYCHIATRIST AS EXPERT WITNESS.” “reasonable medical (or psychological) probability.” Though most attorneys are responsible. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. Several jurisdictional variants include “more likely than not. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. but they cannot by themselves reform the exploitative personality. 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. SECOND EDITION variations on this ploy. . Unlike confidentiality. “get the money up front. hearings. to prevent the experts from hearing other testimony.” and so on. 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.” An expert testifying about a case must be familiar with the relevant standard.
and expert disclosures (see “Disclosure”) inform the other side in advance. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. which involve a victim in addition to the treater and patient. after review. Because the usual duty of clinicians is to the patient alone. The image is that of a defendant giving a trivial blow to the head of the plaintiff. are sometimes referred to as “third-party cases. but the plaintiff has a thin or “eggshell” skull and is severely injured. competent. these cases. Turndown rate The ratio of cases that are.Glossary 139 Stipulate To concede or agree to a challenged issue. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. such as whether a witness should be accepted as an expert for the court. Tarasoff v. In the majority of situations. a blow that would ordinarily not be expected to cause harm. The expert has control only over those accepted or rejected. etc. insane.” Experts should refrain from stating the ultimate issue in their testimony. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. not those that come in for review. The expert proffers an opinion. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. usually based on criteria.” Jurisdictions vary widely as to the applicability of this principle. (See also “Opinion. guilty. Among other goals such as saving time. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. not as a valid method of determining one’s standards of acceptance. depositions. but the fact finder renders the finding that embodies the “ultimate issue.”) . accepted as meritorious versus those rejected as invalid. discovery proceedings such as interrogatories. Ultimate issue The final outcome of the legal process: negligent. 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). This rate should be seen as a rough guide. “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.” or “duty to warn third-party cases.
in the present context. evasive testimony designed to avoid answering a question directly or at all. See Gutheil 2007. There are a number of possible causes. 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. work product occupies a special category of privilege and is usually not discoverable. This may apply to certain communications between expert and retaining attorney. the purpose is to allow preparation of cross-examination or rebuttal. Waffling An expert’s rambling. . Work product A designation of privacy for material that is part of the attorney’s trial strategy. to say” but more relevantly.140 THE PSYCHIATRIST AS EXPERT WITNESS. discursive. literally “to see. “The Problem of Evasive Testimony” in Suggested Readings. SECOND EDITION Voir dire An expression from the French.
xiii. ethical model. 52. 65 fighting at depositions. 115 courtroom. 4. 61 retainers. 106 Beepers at trial. 105–106 loyalty to retaining attorney. 106 American Psychiatric Association (APA). 100–101 Alternative scenarios. 37–38 Ambivalence. 117 “Alibi” issues. 78. apparent. 19 hindsight bias. 80 Body language. 16 meeting with before deposition. 74 Accuracy. 116 Alcoholic beverages. 115 meals. use of. 18 Billable time. 37 Alterations ethical. 4. 15 Agency relationship. 68–69 Attire at trial. 16–18. 3–4 Advertising. 77 Bias. 105 Assumptions. 70 merit of retaining attorney. 60 Addressing judge at end of testimony. 82 negotiations with retaining attorney. 49. 115 Alarm clocks. 32. 49. 16 treater bias. 105–106 Analogies and metaphors. 23–24 Air travel. 87–88 Admissions. 63 Blackboard illustrations at trial. 8. 82 of reports. 74. 26–28. 59–60 Advances minimum fee. 4–5.” 106 Audiotaped interviews. 115 airline guides. 44. 82–83 Announcement of forensic practice. 30–32 misunderstanding of clinical issues. consulting with retaining attorney during. 52. 105–106 American Board of Forensic Examiners. 4–5. 45. 17 problems of loyalty and identification. 35 Background of expert. 16 work product privilege. 7. 24–29 social relationships with. 9 nonsexual seduction. 121 American Academy of Psychiatry and the Law (AAPL). See also Demeanor 141 . 25 Beat the Press (Fulton and Guyant). 14 Adversarial context. 112 first class. Dress and appearance Attorneys communication with opposing attorneys. See Ethics informing of availability as forensic expert. 47–48 depositions. See Clothing. 62 needed for forensic functioning. 100 of expert opinion. 68 honesty of. 104 Advocate for truth.Index Accessibility airplanes. 113 Bipolar disorder. 70 “Attorneys’ Guide to Experts.
39–40 Cellular telephones. 71 Candor. 29–40 documents. 28 Correction of answers at depositions. 116–117 metal detectors at. 82 Child abuse issues. See also Video depositions gazing into the lens. 113–114 Case name or citation in written report. 83 breaks and recesses during. legal. 64–65 Cough drops or throat lozenges at trial. 58–59 avoidance by attorney. 33–34 threshold question. 7–8. 99. SECOND EDITION Complaint. 81 Communication with opposing attorneys. 32 Building a practice. 95 Court reporters. letters to. 44 nonconfidentiality warnings. 66 Concessions at depositions. 65–66 Confidentiality breaches as basis for suit. or experts. litigants. 77. 70–71. 30 validity of case. 86 Borderline personality disorder (BPD). 121–123 Constraints on time. 61 trial. 85–86 code language between attorney and expert. 77 unpacking at hotel. 30–32 “nothing to go on” problem. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). example of outline. 85–86 Brokerage organizations for expert witnesses. 32. 118 Criminal cases capital cases. or data. 113–115 trial appearance. 103–108 Camera. 108 Browbeating by retaining attorneys. 4 Class action cases. xiii. questions about. 28–29 Contingent fees. 25 Conflicting stories from parties in case. 82 Clothing packing for travel. 48–49.142 THE PSYCHIATRIST AS EXPERT WITNESS. 118 Counsel. 81 delaying tactics. 14 criminal responsibility cases. 19 Capital criminal cases. 30 Causation. 13–14. 100 Consultation services. 116 Coaching. review of. 61. 4. 17. 101–102 Crises while testifying at trial. 34 misunderstood by attorney. money. how to handle in written reports. 83 Courtrooms. 33–34 merit of attorney. 23 Clinical material. 137 report. 135 . 69 Concentration at depositions. 38 Conflict of interest. 74 Code language between attorney and expert. 40 Child custody cases. 34 Compound questions at depositions. 62. 99–100 Consent Form for Forensic Examination. 77 Change of opinion. 16. 33 scheduling. 33 The court. 24. 47–48 Competence issues. 5. 82 Breaks and recesses depositions. 59–60. See Attorneys Countertransference. 48–49 involving the insanity defense. 14 Carry-on luggage. 73–79. 86–87 Cross-examination. 65. 97 Case review. 107 Brokering a case when unable to handle it personally. 18–19.
135. 59–60 assumptions. 68 final preparation. Written documentation Doing no harm. 63 goals of expert being deposed. 75 Decision to take case. 58–60 goals of opposing attorney. 135. 84 pauses before answering. 88 trial preparation. See also Interviews. 114 . 61. 85 quotes. 64 opinions and their bases. 66 concessions. 68 fighting by attorneys at. 57–72. 64–65 curious questions. 115 access to courtroom. 66–67 locking in/limiting expert’s testimony. 83–86 “yes” or “no” questions. 29 Defendant. 31 Database. 64. Privilege Discovery. 61 compound questions or answers. 79–80 restructuring. 74 Disclosure issues. 59–60. 65–66 consulting with retaining attorney during. 64–65 later evidence affecting opinion given at deposition. 58–70. 62–63 reviewing. 76–77 written documentation to give listing of. 8 Double billing. 87–88 Depositions. 58–60 inappropriate questions. 117 Drugs. Records leaving behind after trial. 80–82 leading questions. 85 reasons for. 69 Direct examination. 73 use during trial. See Parties in case Demeanor cross-examination. 135. 64 language/word choice. 65 questions and answers. 66–67 143 interruptions. 116 Drinking. 68 treatises. 97–98 Daubert challenge. 113 Dress and appearance packing for travel. 65 correction of answer. 77–79 Departure from courtroom. 4–5. 38 of experts at depositions. 77 unpacking at hotel. See also Confidentiality. 34 stenographers in. See Privilege Documents. 47 nonverbal responses. 5–6. Reports. 59 past. 92 Disabled individuals access to airplanes. 135 admissions in. 59 limits of expertise. review of. 113–115 trial.Index demeanor during. questions about. 91–92 privileged information. 57–58 nondiscoverable material. 80–82 of examinees during interviews. 66–67 demeanor of deponent expert. over-the-counter. 64 objections. See also Depositions interrogatories. See Records. 34 assessing. 68–69 breaks and recesses during. 83 trial. 64 priority. vast amounts of now stored online. 60 malpractice suits. 85 Dangerous examinees. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 70 “gerrymandering” clinical data. 26 pauses before answering. 69–70 videotaping of. 34. 62–63 concentration during. 68 of experts at trial.
15 loyalty to retaining attorney. 87–88 Evidence. 60 False allegations. 25 Flashlight. 26–28 detailed fee agreement. See Meals Emotional injury cases. issuing. xiii–xiv evidence in. principles of. staying with. litigants. See Air travel Food. 78 Global requests. 113 Fitness as expert. 47–48 cross-examination. 95–96. principles of. importance. ethical model. doing none. 28. 44 . sample. 115 Flip charts at trial. sample. 82 Hotels. 36 “False memory” cases. of sexual misconduct. 51–52 Hindsight bias. 33 oaths. 28. 15 altering reports. 49–51 examples. 115 Feedback. 15 social relationships with attorneys. 5. 125–128 travel costs. 37 Eye contact at trial. 18–19 honest advocate model. 125–128 Gestures at trial. 7–8. 75 Ethics. 100–101 billing. 107 new facts at trial. 17 special expertise of. 16 turndown rates. sample. 25 Honest advocate. 113 contact with opposing attorneys. 6 High-profile cases. 1 functions. 13–14. 8 Hearsay. 129–130 standard fee agreement. 16 marketing a forensic practice. 96 Harm. 75–79. 61. scholars in. See Meals Forensic countertransference. 78 Eating. SECOND EDITION Family or friends. 32 Good writing. 9 Humor. 115–116 Humility factor. 67 marketing. 30–32 of experts. 49–50 Employment relationship. 28 Fairness. 50–51 interviews. always soliciting. 15 remaining neutral. See Countertransference Forensic practice. 24 Entrance of judge. 28. deposition and trial. See also Written documentation Forensics. 6. 25 External consistency of story. 88 Fees. 82 nonconfidentiality warnings.144 THE PSYCHIATRIST AS EXPERT WITNESS. 80 Flying. 129–130 standard fee agreement. See also Ethics of attorneys. 136 spotting the other side’s. See also Hired guns definition. 38 “nothing to go on” problem. 67 Expenses. 62 Hired guns. See Fees. Reimbursement for travel Expert witnesses. 38. 52–55 History of expert. 80 Fabrics. 112–113. 15 Honesty. 112 Failure of retaining attorney to pay fee. sample. 28. for travel. 44. 14–15 Etiquette at trial. 1–3 Experts honesty of. 13–21. or experts. 103–108 Forensic reports. See also Conflict of interest advocate for truth model. 2 Forms detailed fee agreement. 61.
34–35 plaintiff. 107 Interference of attorneys during interviews. 51–52 Medical records. 87–88 Lecturing as marketing tool. 35 order of. 48–49. 112 Meals airplane food. 75 informing of availability as forensic expert. 86 Malingering. 95 Likelihood principle. 106 Letters to attorneys. 35 Involuntary gestures at trial. 137 Insurance challenges. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). See Hotels Loyalty to retaining attorney. 87–88 dismissal by. 115 during trial. 37. 116–117 Media coverage and cases. 45–46. 75 respect for. 34–35 plausibility of case. 103–108 announcement of practice. level of scrutiny. 105 ethics. 36 internal consistency of story. 37 alternative scenario. 57–58. 115 Lawyers. 43–48 creating timelines for. 47 elements of malpractice. 6 entrance of. for travel. 79. 36 Internal consistency of story. See Attorneys Leading questions on crossexamination. 78 Jargon. 36 Interrogatories. 2 entrance. 138 Marketing a forensic practice. 49 demeanor of examinee. 45 locality rules. 106 publishing/writing. 98 145 Laptops. suspending. 16.Index Identification with retaining attorney. 34 . 107 strategies. 39 Interviews. 106 Locality rules for standard of care. 106 specialization. 38 emotional injury cases. 6–7. 106 listings. 7 Listings as a marketing tool. pros and cons. 84 Leaving courtroom. 35 priority. 35 retention of records. 40 videotaping or recording. 107 lecturing. 105 Judgment. 16 Insanity defense in criminal cases. 47 standard of care. 137 Intervening causes. 34 depositions. 97 to the court. 37–38 criminal responsibility cases. 112 Judges addressing. 45 Lodgings. importance of. 82 Jet Smart (Fairchild). 52 Malpractice suits. 49–50 external consistency of story. review of. 53. 46–48 social service history. 34–38 “alibi” issues. 36 presence of attorney. 45 Juries. 91–92 recording. 49. 37 interference. 99. 45 records. 36 nonconfidentiality warnings. 18–19. 86. 83 testimony before. 79–80 Jurisdiction-specific language. 18 Integrity. 38 note taking. 119 Materials.
88 The Packing Book (Gilford). 4–5. 74 Prior testimony by expert. 5. SECOND EDITION Online. 50 Preliminary reports. 138. 25–26 Priorities. 36 Politeness. 64 Peer review for testimony. 26–28 Networking. 67 National Forensic Center. 29 fees. 26–28 fitness as expert. 8 Pens and pencils at trial. 40. 70 Medication issues as basis for suit. 71 Oaths. 38 Nonsexual seduction. while traveling. 97 communication with opposing party. 100–101 Posttraumatic stress disorder. 54. 47–48 Outcome of case. 115 Preexisting illnesses or conditions. 65 work product privilege. 118 Metaphors and analogies. See Parties in case Plausibility of case. 106 Negligence. 58–60 Opposing expert witnesses. See also Web sites storage of past depositions. 85 depositions. 65. 24–29 background of expert. writing for. 25 bias. 137 depositions. 68 Pauses before answering cross-examination. 82. 39 vulnerability of plaintiff (“thin skull”). See also Confidentiality deposition. questions of. 15 Objections depositions. See Emotional injury cases Physicians’ Desk Reference (PDR). 97 Preparation for trial. 52–55 contact with. 137 Negotiations with retaining attorney. 44 Melatonin. not compromising. 80 Misunderstanding of clinical issues by attorney. 24 request of retaining attorney. 82–83 Microphone use at trial. 91–93 Precautions.146 THE PSYCHIATRIST AS EXPERT WITNESS. 47–48 plaintiff interviews. 74. goals of. 82 interrogatories. 64 interrogatories. 113–115 Parties in case case name or citation in written report. 86 Nonconfidentiality warnings. unfailing. 47 during interviews. 13–14. 137 Note taking importance of. See Trial preparation Prescription medications. 24 decision to take case. 69 Plaintiff. 49–51 Morality. effect of. 15. 25 initial contact. 14. 77 Personal injury cases. 49–51 Practice pointers. 17–18. 34–35 Patience. 97 . 16–18 clinical and forensic issues. 91–92 Privilege. 82 Mitigation of damages. 77 keeping notes. 114. 26 Opposing attorney. 24–25 timing and scheduling. consulting with retaining attorney at. use of. 45. See also Marketing a forensic practice New facts at trial. 30 Occasions. 16. 66. 104. 81 Postreport negotiations. 117 Pretrial conferences. 57–58 Objectivity. 112 Packing for travel. 57–58 trial. 35. 117 Metal detectors at courthouses.
44. 9. 6 Specialization. 117 Social relationships with attorneys. 75–76 Seduction. level of scrutiny. maintaining appropriate. 104–106. George. 112 Reality-testing. 28–29 Running shoes. importance of. 108 written documentation. xiv. review of. See also Written documentation Reputation of expert. 82. 40 Returning calls. 6. 48 Sleeping. response to. 16 Social service history. 54 Resources for suggested readings. 25–26 as marketing tool. 9. 138 Professional meetings. 3. negotiations with. 34 retention of.Index Pro bono work. 40 social service histories. 15. See also Packing for travel Supplementary reports. 33–34 CATO model for. See also Court reporters in depositions. 5–6. See Negotiations with retaining attorney Retention of records. 26–28. 91–93 personal conflicts. 112 Respect. 138 of witnesses. 97 Rehearsing testimony. 74 Reimbursement for travel. 49 database of. showing toward juries. 25 Reasonable medical certainty. 53. 100 Recesses. 24 Publications by expert. 54. 99 Surprised expert. 31–32. reasonable medical certainty. See Breaks and recesses Recorded interviews. 81 Sworn statements.. 18. power of. 113–114. traveling with. suggested. 112–113 Santayana. 85 Readings. 113 Relatives. nonsexual. See also Malpractice suits Suitcases. 107 Standard of care. 131–133 travel books. 79. Robert I. 138 Rebuttals. 92. 7. 106 Psychiatric malpractice suits. 46 criminal responsibility cases. 3 Suicide malpractice cases. 70 Skepticism. 51–52 Quoted passages. 43–45. obtaining in advance. 33. 40 case review. 119 Site visits. 73–74. 45–46. 14 147 Retaining attorney. 38–39. 138 Standard of proof. 64. 49 Sequestration. 83 Retainer. 115 Rental cars. 131–133 travel books. review of. 7. 35 Records. staying with. 6 Scheduling issues. 25 Required action. 107. 112 Reports. 79 Stenographers. 82 Silent treatment. 46–48 medical records. 34 malpractice cases. 47 Referrals. 106 Publicity and cases. 36. 108 Roles of expert. See Oaths . 66 Simon. 93 Seating at trial. 47 Socratic method. 97–98 Supporting data for written reports. 17–18 Self-serving behavior. 68 Storytelling. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 95–102. 6–7. 75 Sexual misconduct cases.
111–118 billing. 79–80. 80 language/word choice. 61. effect on standard of care. 86 pens and pencils. 117 time planning. 113 Travel service. 45–46 Types of cases. 77–79 departure from courtroom. 139 Taxicabs. 80 pretrial conferences. 78–80 Telephones calls during trial breaks. 112 Traumas. 80 humor. 73–74 practice sessions. SECOND EDITION cough drops or throat lozenges. 74 presentation. 86–87 cross-examination. 117–118 Trial preparation. 35 keeping track of. 77. 82. 37–38 Trial. 8–9 Treatises. 77 courtroom. 69–70 Treatment recommendations. 85–86 conclusion of questioning. effect of. 39–40 Travel books. 49–51 Tarasoff-type cases. 64 for interviews. 78 illustrations. 82–83 lunch during. 8. 112 Travel expenses. 74 Teaching role. See also Ethics. 74 rehearsing. 75–76 supplies. 116 Treater. 14–15. 80. 112 unpacking. 117–118 testimony. 139 Type of practice expert has. 77 etiquette at. 79–80 timing and scheduling tips. questions about. 74 pitfalls. 113 examinees. 25–26 roles of expert. 76–77. versus expert. 44 Throat lozenges or cough drops at trial. 43–56 criminal responsibility cases. 77 returning calls. 112–113 travel information. importance of. 74. 86 cellular telephones. 74 Truth telling. 13. 74 using database during. 85. 86. 116–117 microphone use. 118 Time creating timelines. 44. See Meals packing. 34 for depositions. 87–88 dress and appearance. 87 . 74 planning. 60. 77 breaks and recesses during. 48–49 emotional injury cases. or flip chart. 77. 77 pointers. 73–74 language/word choice. 87–88 eye contact. 112 Traveling. 108 wake-up calls. 82. 28–29 Third-party cases. 19. 26–28 travel time. 116 Testimony at trial. 118 crises while testifying. Honesty Turning down cases. See also Cross-examination prior testimony by expert. 92. 76–77 water. 81–82 priority. 112–115 sleeping. blackboard. 75–79. 73–90 beepers/cellular telephones. 115–116 meals. 91–92 seating at. See Crossexamination demeanor at. 80 new facts coming to light. 77 what to bring into court. 55. 51 evaluating. marker board. bringing into. 115 lodgings.148 THE PSYCHIATRIST AS EXPERT WITNESS. 35 flying. 74.
4–5. 100–101 trial preparation. 100 criminal case. 82 Values. 44 White noise. 74. 97–98 headings. misunderstanding by attorney. 97 conclusion. 98 letters to attorneys. 104–105. 74 Voltaire. 117 Word choice depositions. 64–65 reports. 99–100 constraints on time. 97 supplementary reports. 139 Understanding of clinical issues. 116 Water during air flights. 100–101 preliminary report. 98–99 conflicting stories from parties in case. example of outline. 97–98 supporting data. money. 140 Written documentation. 101–102 database listing.” 2. 107 Weight to be given to on-site psychiatrist’s observations. 108 Work product privilege. See also Records. 43–48 “Ultimate ethical test. 99 . 97 occasions. 95–102. 115 in courtroom during trial. 51–52 psychiatric malpractice cases. 98–99 postreport negotiations. 53–54 Wake-up calls. 70. 97–98 jurisdiction-specific language. questions of. 97 opinion. 77 Web sites. 82–83 149 Word-of-mouth referrals. 140 examples of. 97 principles of good writing. 35 Visual aids. 97 interviews/items reviewed. 67 Video depositions. 79. how to handle. Reports case name or citation. 100 referrals.Index high-profile cases. 7 Waffling in answers.” 18–19 “Ultimate issue. or data. 70–71 Videotaped interviews. 96 rebuttals.
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