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The Psychiatrist as Expert Witness
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Harvard Medical School Boston. M. DC London. England .The Psychiatrist as Expert Witness Second Edition Thomas G. Massachusetts Washington. Gutheil.D.
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. Psychiatrist in court. Gutheil has no competing interests to disclose.appi. — 2nd ed. . American Psychiatric Publishing. As medical research and practice continue to advance. Expert Testimony. For these reasons and because human and mechanical errors sometimes occur. Copyright © 2009 American Psychiatric Publishing. Forensic Psychiatry.org Library of Congress Cataloging-in-Publication Data Gutheil. 2.G8 2009 614′.. ISBN 978-1-58562-342-6 (alk. Gutheil. Inc. Thomas G. 2. Inc. Forensic psychiatry—United States. cm. specific situations may require a specific therapeutic response not included in this book. Expert—United States. W740 G984pf 2009] KF8965. II. Food and Drug Administration and the general medical community. Evidence. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. VA 22209-3901 www. 1000 Wilson Boulevard Arlington. Gutheil. therapeutic standards may change. I. Includes bibliographical references and index. [DNLM: 1. Dr.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Companion to: The psychiatrist in court / Thomas G.S. schedules. c1998. however. Books published by American Psychiatric Publishing. Title. Gutheil.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. Moreover. paper) 1. 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. 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. Inc. The psychiatrist as expert witness / Thomas G. p. Thomas G.
truly the wind beneath my wings.To my children and the hope of the future. . To Shannon.
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . 1 The Adversarial Context. . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Contents About the Author . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Treater Versus Expert . . . 8 The Humility Factor . . . . . . . . .
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
and now in its fourth edition. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. coauthored with Paul S. Clinical Handbook of Psychiatry and the Law. Harvard Medical School. M. he has received local and national writing and teaching awards. Through more than 250 publications and many lectures and seminars in national and international fora.. and a Distinguished Life Fellow of the American Psychiatric Association. xi . M. the textbook. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center. received the Manfred S. 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. Appelbaum. Recipient of every major award in the forensic field.About the Author Thomas G. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry. he has taught many clinicians about the interfaces between psychiatry and the law.D.D. Gutheil. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center..
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it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. other changes in this second edition include: a glossary of useful terms. an expanded discussion of bias in testimony. and many a practitioner feels the urge to try out this fascinating realm. Often the greatest difficulties in this profession occur at the outset.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. if you feel shaky about the basics. expanded definitions of key concepts. 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. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. Moreover. before experience itself has had the opportunity to provide the most durable and valuable instruction. it provides tedious stretches of waiting and inactivity. 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. xiii . interspersed with frenzied bursts of action. Such service presents many stresses and equally many satisfactions. 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. that book is a good place to warm up. in fact. a model forensic consent form for examination. and at the request of past readers of the first edition. The Psychiatrist in Court: A Survival Guide. This book—now presented in its revised and expanded second edition—is targeted to increasing the knowledge and skills of the beginning expert witness and of those contemplating this role for even the first time. additional illustrative examples. In addition. From another perspective. and cases or principles that I have learned about since the first edition. this edition also contains things I wish I had said in the first edition. Forensic psychiatry is growing in popularity. besides the requisite updating of references and suggested readings.
whenever possible. Best wishes for success in your burgeoning career as an expert witness. concrete advice replaces abstract theorizing. You who are in that position are also my audience. SECOND EDITION If your early court experience has not been too traumatic. M. in part because they represent material never covered in other sources. The more seasoned expert may wish to skim over the more familiar material in the text. and informal discussion in a user-friendly tone replaces scholarly discourse.D. 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. kicking and screaming. . the later chapters may yet prove useful. Gutheil. hands-on mentoring and guidance that were not readily available in the past. Indeed.xiv THE PSYCHIATRIST AS EXPERT WITNESS. but choosing to go. attempts to provide some of that practical. for such readers. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. Thomas G. perhaps— dare I say it—interesting and even fun. the novice court goer. I hope you find this approach useful. drawing on developments subsequent to its first version. you. This new updated edition.
Ellen Lewy for absolutely indispensable assistance with the manuscript.. Esq. Resnick. for permission to use some of his material on writing for court. Stephen Behnke. Harvard Medical School. Larry Strasburger. to Drs. Hilliard. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. I especially thank “Dr. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. and Shannon Woolley for their careful review and most helpful critique and comments. Harold Bursztajn. M. Candace Love of On-Point Research for valued assistance in compiling resources. and Ms.. xv .” James T. Phillip J.D.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. and to Ms.
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More narrowly. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. the question of what makes an expert witness is more complex. that is. 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. both clinical and nonclinical. knowing a lot about a certain topic and having extensive experience therein. In this book. 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. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. For example. the question “What makes an expert?” seems to answer itself: expertise makes the expert. Indeed. is a psychiatrist who uses particular skills. even if those conclusions are based on others’ observations. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. an expert witness may review a chart filled with other clinicians’ observations 1 . clinically defined. in contrast the expert is entitled by the role to draw conclusions. 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. In the courtroom setting.
then the judge or jury. proclaiming their ultimate faith in the jurors themselves. because what an expert offers is “only” a witness’s opinion. I’d want to be treated by this person because he/she makes sense. I also want someone who has clinical experience and is doing that which he/she is testifying about.. Note in regard to the issue of ultimate findings. that is. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. Under this model. 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. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. are the very same ones who had retained me on a previous case. What I find bemusing is the fact that. not the ultimate finding that a judge or jury decides. at times. As a rule experts should limit themselves to criteria-driven.. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. insanity. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. the court system needs expert witnesses in a burgeoning variety of technical fields. 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.. from ballistics to the temperature of coffee sold at fast-food franchises. the expert is to educate the retaining attorney. and so on. Indeed. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts.” You want someone who will present in a way that the jurors would be inclined to say this. . about matters that are beyond lay knowledge or decision making. or malingering. the jury is free to accept or reject the expert’s testimony in whole or in part.I do not want someone who [merely] teaches others about it.2 THE PSYCHIATRIST AS EXPERT WITNESS. For that matter. However. if I had this problem. incompetent. such as competence or insanity. opinionphrased descriptions rather than conclusory statements: “in my opinion. I believe this person. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. some questions can only be answered by a specialist.” This issue is discussed further in later sections of this text. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. competence.
consider this scene: In the movie Amadeus. and 5) argue the case (1). The emperor leans forward. demographics. he has become engrossed in the story. and the resulting probabilities. surmounted. Mozart begins to describe the opening scene of The Marriage of Figaro. clinical entities. went even further by listing the functions of the expert as being to 1) tell the story. 2) make the fact finder want you to win. causation. eyes glowing with interest. and an adversarial atmosphere are problems to be avoided. In this chapter. are so essential to this work that I review them in the following discussions. oppositionality. at family functions. and the one often most troubling to clinicians. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. or resolved or otherwise put to therapeutic use. however. some points. In one scene. a law professor. and so forth would have accomplished this vital storytelling purpose. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases.Introduction: What Makes an Expert? 3 Another scholar. with Figaro kneeling on stage taking the measurements of his marriage bed. conflict between the parties. pp. Despite his doubts. Showing pictures of the deceased at communion. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. although basic. The highly experienced defense attorney who had retained me was heard to mutter at one point. is the adversarial context. Most clinical work occurs in the context of the alliance. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. The power of storytelling was captured in a movie about the career of Mozart. statistics. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. the emperor is initially resistant to Mozart’s novel music. and throughout this book. 4) help the fact finder see the facts. syndromes. (2. 3) make sense out of the law. The foremost of these. he noted that the plaintiff ’s attorney had failed in a crucial storytelling function to make the person who had committed suicide come alive in the minds of the jury so that they would be sensitive to what had been lost by his death. . “Where are the communion pictures?” Pressed for a less cryptic expression.
in the forensic setting. render highly complex the question of agency. You also will be sensitized to certain issues of privileged information and work product exclusion (a term clarified later in this discussion) that may come to bear. the court situation is a zero-sum game: one winner. you work for the consultee (i. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. the retaining attorney or court). in the clinical context. I define the term work product to include the notes. In medicolegal work. Unlike the search for consensus in the clinical setting. Com- ..e. Note for completeness that certain forensic contexts. both of which reside in every case and every patient or litigant.” a mandate that may trump other claims on your agency. ambivalences may be divided between the two parties in the case rather than felt internally by either. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you.e. because that position confers greater neutrality and protection for your efforts. In other words. and other papers that the attorney generates in the course of litigation. for whom am I working? Your answer will clarify your location within the adversarial framework. one loser. the adversarial context is one of the “givens” in the situation. memoranda. even if it is a compromise (3). two of the victims of this concept are ambivalence and complexity. in a forensic setting. For example. Although there may be as many views of the patient as there are team members. they are not case-related documents and therefore are protected from disclosure. such as child custody evaluations. as well as the usual lack of a physicianpatient relationship (i. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. This specialized topic is beyond the scope of this book.. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. whether testifying or consulting. you usually work for the patient. 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. In the legal context. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. must first ask the question. you usually do not). and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). The usual guiding principle in such determinations is “the best interests of the child.4 THE PSYCHIATRIST AS EXPERT WITNESS. The Prime Question Any forensic psychiatrist. The question of whom you work for also will alert you to major pitfalls of bias. files. Like other consultants.
Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. The issue here is the tension. . between the “whole truth” and the “admissible truth” (4). 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. suspects. it should.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. when in doubt. Although therapy usually transpires within the patient’s self-reported data. The term also suggests that an expert’s opinion rests on a base. litigants. my own or others’ interview notes. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. court-related issues are often matters of public record and public exposure (in open court). The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. As we will see later. and relevant literature. 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. Therefore. legal documents. Warnings are further discussed in later sections about the interview itself. is private and confidential. the forensic perspective almost always extends beyond the individual examinee. later addressed. with exceptions. be carefully documented. reports. including records. of course. Most attorneys know not to include details of their trial strategy in letters to you. One trenchant reason for this approach is to obtain corroboration or discorroboration. convicts. and captured as well in the consent form for forensic examination as Appendix 1. your personal attorney can always give you advice on nondiscoverable matters. correspondence. lest they be exposed prematurely to the other side. or basis. 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. In contrast. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. or impression. The retaining attorney will guide you in this matter. defendants. with some exceptions. fantasy.
though under oath to tell the whole truth.6 THE PSYCHIATRIST AS EXPERT WITNESS. absent clear delusions. detailed. hearsay-ridden trail by which it comes to the team’s attention. do not demand to be heard: answer all the questions and then stand down when dismissed. Yet the court may be driven by principles of fairness. The witness should be guided by the maxim: when entering the courtroom. but the Socratic method is one of the mainstays of courtroom procedure. and often redundant way of developing information for the court and the fact finder can lead novice experts to chafe at its slowness and deliberation. and similar signs. the forensic practitioner is wise to suspect everyone of having some stake in the matter. which preclude admission of certain kinds of data or evidence in the name of justice. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. obvious self-contradiction. despite the convoluted. and the like (4). corroboration. In contrast. one is guided by its rules. prejudice. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. experts in court must play by court rules. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. Because a patient in treatment is willingly coming for help. hearsay. and to maintain an appropriately skeptical posture. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. may be forced into limitations on this promise because of countervailing considerations of precedent. always seeking out verification. fundamental fairness. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. The Socratic Method Although expert testimony has been compared to teaching.. 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. or discorroboration . Once again. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. be it moral or monetary. This painstaking. — George Santayana Unlike the treatment context. In practical terms the expert witness..
Other contextual clues about the hired gun are overly candid advertising in legal media (e. but certainty is absurd. Rather. Reasonable Medical Certainty Doubt is not a very pleasant condition. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. Although some will cry that there are exceptions.Introduction: What Makes an Expert? 7 for all important facts. 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. including forensic psychiatrists. As a general rule. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires. All psychiatrists. forensic work is a sideline to our clinical focus. makes forensic psychiatrists unpopular with their clinical colleagues. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. and leads physicians of all specialties observing. we are paid by time criteria.g. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. or even reasonable psychological certainty). reasonable medical probability. — 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. ask about the local variant. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). regardless of its clinical or empirical validity. honest experts should avoid these approaches to . For most of us. Note that there may be some jurisdictional variation on this point. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number.. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. high-profile insanity cases. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. for example. sell time. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work.
if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. SECOND EDITION finding work. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers.8 THE PSYCHIATRIST AS EXPERT WITNESS. (By the way. and you maintain your ethical compass direction. although the clinician is obligated to place the welfare of the patient above other considerations. summarized as follows (for more extensive discussion of this point. and corroborating data. case materials. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. and ethical incompatibilities with serving as your patient’s expert. First.) 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. “Developing and Marketing a Forensic Practice. reasoning. If a clearly meritless case is offered to you for review. there are significant clinical. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. Often no absolute standard exists by which to measure opinion testimony. Thus. There are complexities in this area that should be addressed. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. because these provide a base of financial stability that enables you to turn down cases. you avoid temptation to skew your opinion. it is an excellent way to benefit from the teaching of colleagues and to share ideas. legal. 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). ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. For various reasons (5–7). see reference 5 and the appendix to reference 3). so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. 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.” in this volume).
Second. Early in my career. even though this may occur appropriately under legal rules. 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.” Even when the expert is the only source of data that the jury receives. not the engine. 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. constitutes a bias for forensic functioning. From this viewpoint.Introduction: What Makes an Expert? 9 the treater gives in court. Master forensic psychiatrist Robert Simon. . the therapeutic alliance. as noted in the section on malingering above. in contrast. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome.. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. The Humility Factor Finally. whether because of simple ignorance of the above distinctions. treaters called into court may violate the confidentiality of the clinical setting. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. Indeed. the wish to avoid paying expert fees that are usually higher than those of treaters. M. Third.” This provocative image should be kept solidly in mind. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. rather than the entire forensic database. the treater has usually had only the patient’s reports on which to rely. 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. a treater begins work with a patient from a credulous position: the patient’s subjective view is the initial perspective agreed on and explored in the dyad. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. thus leaving the jury free to vote its “gut.D.” Although this last is true in certain respects. Attorneys seem to display a curious indifference to these incompatibilities.
Testifying and Everything Else You Need to Know. Gutheil TG. Expert’s Quarterly (Winter): 2. MD. Lippincott. Simon RI: Narcissistic dimensions of expert witness practice. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Williams & Wilkins (Wolters Kluwer). 2006 Catto G: Acting as an expert witness. 1998 Gutheil TG. August 2. Washington. 8. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Lewis Publishers. Wiley. 4th Edition. Suggested Readings Ackerman MJ. Am J Psychiatry 154:448–456. 5. Personal Injury and Other Civil Actions. J Am Acad Psychiatry Law 25:233–247. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness.asp.org/guidance/ethical_ guidance/expert_witness_guidance. 2003 Strasburger LH. 2005 2. 2008 . Williams & Wilkins.gmc-uk. J Am Acad Psychiatry Law 34:14–21. MD. New York.10 THE PSYCHIATRIST AS EXPERT WITNESS. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. American Psychiatric Press. Gould JW: Clinicians in Court: A Guide to Subpoenas. Accessed August 5. Guilford Press. 6. White MS. “the admissible truth”: an ethics dilemma for expert witnesses. Bull Am Acad Psychiatry Law 20:153–162. Lippincott. Kane AW: Psychological Experts in Divorce. Boca Raton. 3. et al: The “whole truth” vs. Gutheil TG: Clinical Handbook of Psychiatry and the Law. SECOND EDITION References 1. 7. J Am Acad Psychiatry Law 31:422–427. 2007 Barsky AE. 1997 Gutheil TG. DC. 2002 Bronstein DA: Law for the Expert Witness. British Medical Journal 337 (#7664). J Am Acad Psychiatry Law 33:55–58. Depositions. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Baltimore. Hauser MJ. 1992 Appelbaum PS. Harv Rev Psychiatry1:4–5. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Baltimore. New York. 1997 Gutheil TG. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. FL. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 4. Available at: http://www. 2008.
Hillsdale. 1989 . Hilliard JT: The treating psychiatrist thrust into the role of expert witness. 1992 Dietz PE: The forensic psychiatrist of the future. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. Gold LH: Textbook of Forensic Psychiatry. 2004 Slovenko R: On the therapist serving as a witness. Bull Am Acad Psychiatry Law 2:119–132. J Am Acad Psychiatry Law 30:10–13. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. Behavioral Sciences and the Law 7:145–180. Washington. 1994. 2005 Simon RI: Psychiatry and Law for Clinicians. 1990 Gutheil TG. 3rd Edition. Bull Am Acad Psychiatry Law 15:217–227. Edited by Quen JM. DC. NJ. Int J Law Psychiatry 13:281–307. 2001 Quen JM: The psychiatrist as expert witness. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. DC. 2001 Simon RI. Washington. American Psychiatric Press. Analytic Press. Psychiatric Services 52:1526–1527. in The Psychiatrist in the Courtroom. American Psychiatric Press.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. Springer Science+Business Media. New York. pp 233–248 Rogers R.
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rather than help.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume. their ultimate goals in the legal process. particularly an empathically attuned one.[Finally] I realized that each witness chair comes equipped with a stabilizer control. the ethical expert be13 .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. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray.” They may forget that this encounter is not therapy. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. To prevent such inadvertent abuse or exploitation of the examinee.” (1. S-3) THE EXPERT faces many challenges in forensic work. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. In this chapter. First. tend to drift unconsciously into a “therapeutic mode.. p.. and its results may harm.. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. examinees being interviewed by a psychiatrist. It is a control easily within the reach of every witness—the lever marked “truth. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons.
thanks you for your help. your attorney still may use your opinion or report to bolster one aspect of the case or to limit the extravagant claims of the expert on the other side. denounces your integrity. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. and states. after reviewing. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. You pass this information on to your retaining plaintiff’s attorney. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and..) For example. In a not-so-ideal situation. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. After settling up any monetary adjustments.14 THE PSYCHIATRIST AS EXPERT WITNESS. scoffs at your qualifications. this case is over and has been turned down. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. If you take every case you review. the turndown rate is the percentage of cases in which. impugns your ancestors. understandably. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. (Note that even if you cannot support all of the claims proffered in the case. For symmetry. Rather. Therefore. you are friends with one of the defendants). this case might be called a defense case because the actions of the defendants are. you decide you cannot support the retaining attorney’s position. either your threshold for validity is too high or you need to meet a better class of attorneys. If you turn down most cases you get. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. indicates the intention of explaining your information to the client. and slams down the telephone. the attorney curses your name. who—in the ideal situation—accepts this view. This term does not refer to those cases for which you simply do not have sufficient time or those for which there is some conflict (e. defensible. 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? . Turndown rates between 10% and 30% are not uncommon. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. indeed.g. if necessary. The warnings (carefully documented. you must consider whether your threshold for case validity may be too low. that the firm will not be using you as an expert.
and the expert becomes the fully neutral observer and reporter. This model has been called the honest advocate model. One model holds that once the oath is taken. that is. An author described the special sensitivity to what one can swear to in this way: You are asked. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. Consequently. they do represent cases in which you have elected not to participate. you take nothing for granted. This model is sometimes called the advocate for truth model. Partisan pressures from the adversary are put aside. Consequently. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. for example. guess. and 2) you answer cross-examination truthfully (see the following discussion). Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). 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. In forensic practice. “White. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. speculate about. you could receive a number of good cases. and so on. for a particular case outcome). Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. only over those you elect to accept. Nevertheless. say. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. the only touchstone is absolute truth as you know it or understand it. that position is always acceptable. “What color is that house over there?” The novice answers.” Your correct answer would be.” . all of which you should turn down. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. all of which you might accept. 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. inpatient care.” Once under oath. Although these referrals are not strictly turndowns.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. or a number of invalid or meritless cases. “White on this side.
out of feelings of being loyal to his or her retaining attorney. 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. A pitfall in this area might be called forensic countertransference. just what does the expert owe the retaining attorney? Strictly speaking. but two dimensions of the relationship pose potential ethical problems.” in this volume). The attorney is free to find another expert. “First Principles. that is. you may come to like. this identification may compromise your needed objectivity. 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. respect. you do not owe agreement with the attorney’s position or theory of the case. this factor would require greater scrutiny of the relationship by the forensic witness. similarly. that is not your problem. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. your opinion and its limitations. is misreading the nature of the ethical contract between the two parties. yours are providing ethical and valid consultation or testimony or both.g. and admire him or her. This difference is significant. might extensive socializing with the retaining attorney—or. you owe only serious. committed quality work. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. First. . is disappointed that your present opinion is unfavorable. thus. You do owe it to your attorney to level with him or her about yourself (e. with whom you have done many a previous case together.. discussed further in Chapter 3. identification with your retaining attorney (discussed more extensively in ). These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals.16 THE PSYCHIATRIST AS EXPERT WITNESS. Extending this idea. If the attorney. the skeletons in your closet. The varying forms of bias are discussed below. and what you can and cannot testify to under oath. As you work closely with your attorney. or make whatever use of your opinion that may be of service. The worst betrayal of the attorney-expert contract is the shock and surprise that an attorney feels when your testimony in deposition or on the stand takes a turn totally out of synchrony with your previous disclosures and discussions with the attorney. but the likelihood of identification bias would surely seem to be greater. settle or drop the case. under the rubric of loyalty. Recall that the attorney’s goals are winning the case.
you may feel unable to examine objectively a child molester.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. as a clinician. you should refer the case. you are expected to manage your countertransference toward the examinee or the examinee’s actions. In this model the attorney lavishes praise on the expert. The situation does reveal some complexity. The . If you are a victim of child molestation. Somewhat idealistically. for instance. such as overidentification with the judge or the “system. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. and may add blandishments such as dinners at expensive restaurants and the like. Similarly. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. There is no shame in this. 337). of course. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. 33) However. (p. The fact that the position is more or less neutral does not. p. 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. bias can be exceedingly subtle. this effort may be termed nonsexual seduction.” Note also that. although not common in practice. 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. 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. many expert biases are not detected either by the adversary system or even by the experts themselves. eliminate other subtler biasing factors. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. promises many future retentions. 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. if the countertransference is unmanageable. This neutral position is highly desirable for that reason. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. of course. an attorney.
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. In the process of cross-examination. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. likely be explored. both pull and push must be resisted. defend those opinions passionately and fiercely on cross-examination. 261. . experts can be separated into two categories. and their testimony is often unconvincing. 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. Such candor may well enhance their credibility. Gutheil and Simon (6).” Your retaining attorney exerts the pull of retention. and the limits of your testimony. the limits of your conclusions. while servants beat him with knotted towels. Therefore. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. Again. the limits of your knowledge. The less admirable experts. and the hypothetical situations under which their conclusions would be different. the opposing attorney exerts the push of attempted impeachment. loyalty. p. and identification as above. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. if appropriately asked by the other side. Finally. having become inappropriately enamored of their opinions rather than of the truth.The Expert’s Ethical Universe 19 TABLE 2–1. none of this information should be a surprise to your retaining attorney. yes. the true extent of their opinions. expert testimony is like that. the limits of your credentials. the limits of your data.
38. J Am Acad Psychiatry Law 29:336–339. 1999 Commons ML. DC. 1990 Brodsky SL. Miller PM: Withholding. J Am Acad Psychiatry Law 27:546–553. 1992 . Psychiatric Times. Int J Law Psychiatry 13:249–259. Weinstock R. J Am Acad Psychiatry Law 32:70–75. 3. Springer Science & Business Media. 1992 Lynett E. 2007 Gutheil TG. J Am Acad Psychiatry Law 36:195–200. 2001 Slovenko R: Discrediting the expert witness on account of bias. 2002 Gutheil TG. 39 Gutheil TG. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Simon RI: Avoiding bias in expert testimony. Baker TO: Operator’s Manual for a Witness Chair. December 2004. MD. Gutheil TG: Expert witness perceptions of bias in experts. New York. Baltimore. J Psychiatry Law 28:449–457. Defense Research Institute. Bull Am Acad Psychiatry Law 20:141–152. 8. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. 2001 Miller RD: Professional vs personal ethics: methods for system reform. pp 33. Miller PM. 4th Edition. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. 36. Prof Psychol Prac Res 33:307–309. 2004 Gutheil TG. 5. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Martinez R: Forensic Ethics and the Expert Witness. SECOND EDITION References 1. 2002 Candilis PJ. Psychiatric Annals 34:260–270. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 7. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Washington. Williams & Wilkins. 1983 Appelbaum PS. WI. objectivity and fair compensation. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Bull Am Acad Psychiatry Law 20:163–177. 2008 Katz J: The fallacy of the impartial expert. American Psychiatric Publishing.20 THE PSYCHIATRIST AS EXPERT WITNESS. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 2004 4. Commons ML. 2. 6. Milwaukee.
1987 Schultz-Ross RA: Ethics and the expert witness. Leong GG. 1989 Weinstock R. Greenberg SA: The expert witness. J Am Acad Psychiatry Law 33:386–389. Behavioral Sciences and the Law 5:149–160. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. Hosp Community Psychiatry 44:388–389. 2005 Rogers R: Ethical dilemmas in forensic evaluations. J Am Acad Psychiatry Law 36:167–174. Prof Psychol Res Prac 34:219–224. the adversarial system and the voice of reason: reconciling impartiality and advocacy. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. Bull Am Acad Psychiatry Law 19:237–248. 1993 Shuman DW. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. 1991 .The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. Bull Am Acad Psychiatry Law 17:189–202.
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23 . you should—be polite and supportive to your examinee. forensic work should thus always begin with the question. prescribe. that person is the recipient of your opinions. considered for examination of competence to stand trial. you may or may not owe a separate form of allegiance to that attorney’s client. When you examine a plaintiff at a defense attorney’s request. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. treat. regardless of what is going on with other experts or treaters. your employer is less clear. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. the patient is your employer. that is usually clear. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. However. share a copy of your report with the examinee. and compromised working relationship.CHAPTER 3 First Principles IN CLINICAL WORK. or some kind of class action). In the forensic relationship. but you are not required to preview your findings. 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 still work only for your retaining attorney and. That relationship is also a source of certain pitfalls of bias. ineffectual testimony. indirectly. discussed in the previous chapter and later in this chapter. you may—indeed. or perform some other such intervention with him or her. Although you are usually working for an attorney. is being treated in a hospital setting. as when a defendant. Your duty is to the person for whom you are working. make recommendations.
Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical.24 THE PSYCHIATRIST AS EXPERT WITNESS. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. the term your attorney will be used to refer to the attorney retaining you as an expert. more likely. for whom am I working. Watch for this ploy. refer to those sources. I was asked. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. Instead. and mastery of professional jargon. If this issue is in question. though this distinction may be intentionally obscured as a cross-examination tactic. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . It became clear that the cross-examiner meant my retaining attorney. Friendly. Smith until he or she invites you to call him or her John or Jane. How you communicate with your attorney is important from the outset. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. This telephone call is far from a mere administrative formality. on purpose—he chose to characterize as “mine.” implying venality and bias. politeness dictates that you call the attorney Mr. In this chapter. this approach is self-defeating. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. The Retaining Attorney’s Request After the first forensic question. informal discussion should be the format. not your personal counsel. clinical experience. the topic is extensively discussed in the companion volume. The Psychiatrist in Court: A Survival Guide. This point came up in an actual cross-examination in a distant state. or Ms. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. which—either by accident or. “Have you discussed this with your attorney?” This threw me.
the attorney will not have revealed confidential information (the names) to you. Your Fitness as an Expert Should you. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. if your aged mother has just died in a nursing home. Note that your special expertise should exist against a backdrop of your general competence in the field. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. if you cannot or should not take the case. I recommend hearing about the broad issues of the case first and only then asking for people’s names. personally. Therefore. board certification.g. but subtler versions of personal resonance with a case are not uncommon. This example is fairly obvious. 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. however baseless? Are you now being investigated by the board of registration for some allegation. such cases should be reality-tested for the attorney. experience.. that is. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. have you been the defendant in a malpractice suit. The Expert’s History as Possible Problem Area Are there any blots on your reputation? Your attorney is entitled to know whether any circumstances could prove embarrassing if brought up by the other side in court. The 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. the hospital. but I am willing to become familiar with the issue”). which is usually (but not always) clear-cut. no matter how unfounded? Do you have a . it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. The attorney can then take or leave this arrangement. In general. as indicated by publication. “Look. These issues go beyond mere conflict of interest. and so on. I don’t know a great deal about this specific subject. For example.First Principles 25 chiatrist actually has some knowledge about. 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. 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. take on this case? Do you have some expertise in this general area or in this specific area? If you do not.
. and similar problems? You must be extremely candid with the lawyers about such facts at the outset.. Fees.In too many medical malpractice cases. . the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. attorneys are invisible within the court record. Second. for the first time while on the witness stand) is a major expert sin. Belatedly surprising your attorney (e. the court record chidingly notes. 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. are there cases in which you have testified on behalf of the other side. unfortunately. This issue is further discussed later in this chapter. for example. . 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. including the speaker. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. Similarly. juvenile offenses. in the preceding quote. who are the strangers in the courtroom. (1) This quote is interesting from several viewpoints. for instance. Finally.26 THE PSYCHIATRIST AS EXPERT WITNESS.. in an economic sense. even if the issues are clinically or forensically totally different. have taken an opposite position or opinion. “Smith failed to plead . the more words you might have to eat on cross-examination. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. or have been retained by one side more than the other? Review this with the attorney. Reviewing your own published work in a particular area is a worthwhile part of your preparation. . not for their time and clinical expertise. knows that it was Smith’s lawyer who was derelict. If you write a lot. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. the ultimate beneficiaries. they are all corrupt). SECOND EDITION history of problems in the military. Thus. Time. . a criminal record (no matter how minor). 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.e. credentialing problems in the past.g.” when everyone. and Other Embarrassments A judge in a recent case had this to say about experts: It has been the experience and observation of this court that in all the medical malpractice trials over which it has presided. contradicts your present position. you realize that the more you write. . Do your best to address this possibility early.
nit pick. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis.” Yes. Therapists who are quite capable of taking an extensive. without children bursting in to share their Nintendo triumphs with you). Don’t charge for a 90-second telephone call confirming the date of . 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. or challenge the details.” Other witnesses may take this further: “My testimony is not for sale.” or “I am paid by the hour. meaning no offense. I tactfully suggest that. planning. “So. Doctor. or grasps the point. Doctor?” The only appropriate answer. attorneys have timers on all their phones and charge by the split second. this usually means that the client has hesitation or resistance about my rates. grits his or her teeth. analyzing. choose a fee that you would not be embarrassed to state.First Principles 27 not the forensic context. whether for psychotherapy or expert witness time.” or “Nothing” (and wait for the attorney to crack. ideally delivered in a calm tone of voice and not through clenched teeth. Like the judge previously quoted. First. only for my time. I also recommend not “nickel and diming. I know. but you are made of finer stuff. Second. is “I am not being paid for my testimony. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. 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. since the doctor-patient relationship is not pertinent to the examiner-examinee one. allowing me to refer to a junior colleague. The attorney either takes me up on this offer. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. same as you. and try to maintain that rate. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). and hires me anyway. Indeed. Use timers or check your watch at the start and end of a piece of work and write down the time. Note also that time spent thinking. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. this is a pro bono case for you?”). and organizing your forensic assessment is part of the work. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered.
in addition. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. or other conflict. SECOND EDITION a deposition. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. You sell only time. don’t take on the case. 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. for instance. are free to employ contingent fees. and give the dates to the attorney. That august body opined that this was not an ethical problem but a business issue or a contract issue. ideally. I reported him to the Massachusetts Board of Bar Overseers. among others. Then. Keep your vacations in mind. Ethically speaking. shame.. the organization in charge of attorneys’ ethical issues. How much work or time should you devote to the case? This depends on your schedule. you are charging for time regardless of the outcome of the case. failure to pay is reality. Urge your attorney to bring up your fees on direct examination to get it out of the way. at the end of this book. The attorneys. 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. even if there is). Owen Marshall. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”).e. of course. they referred me to small claims court. but your consultation must be free of investment in any form in the outcome of the case. but in my experience. the good folks on L. you can calmly state them without guilt. respectively. To novice experts. or for reading a one-paragraph letter. It should. when asked about your fees on the stand. your fee should never be contingent. it is unfair to your attorney. basically consultative services. I took my first major “stiffer” to court eventually and received some of my money. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i.28 THE PSYCHIATRIST AS EXPERT WITNESS. 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. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. You give only testimony. Perry Mason. defaulted on payment) by their first attorney. If you don’t have enough time. Refuse any other arrangement. some of which never .A. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. when you design your own fee agreement.
what your time permits. your first task might be an evaluation of plaintiff. for that matter). defendant. or even witness. If you are. what your skills or knowledge support. or is the matter likely not to go to trial? Are you going to be a reporter. You simply may be a consultant to the attorney on the merits of the case at the outset. You may be needed to evaluate a plaintiff (or a defendant. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. 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. Do one or the other. rarely.First Principles 29 lead to the courtroom. 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. that role would be ethically incompatible with the objective testifying role. 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. The Final Decision Putting together everything that you now know—what you charge. The usual next step begins with your receipt of written materials on the case. You might advise the attorney on how to cross-examine the other side’s experts or litigants. how you feel about the attorney. your consultative. nontreatment role is clearer. In other cases. or will your opinion be used by the attorney to strategize without a report. Among other things. testator. someone who has to generate a written report. working for the attorney or insurer is a far better idea than working for the client alone. Moreover. as a professional. an individual client. Will you be expected to testify at trial. going to testify. that is. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. your attorney. how free from bias or conflict the situation is—finally ask. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. Which comes first boils down to a matter of individual preference. often in orange-crate–sized lots. You may provide rebuttal material for use by others. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. . at some point. As a rule. is more accountable.
There is nothing inherently wrong with this desperation. The attorney presented the case to me by telephone. even in a consultative sense? In the initial telephone call. compared with some other behavior. for that matter. you must ask the question. a tendency to assume you will give the “desired” opinion no matter what the material shows. including by obtaining expert consultation. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. The point is perhaps an obvious one. In any case. though you would not necessarily know this. 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. his dangerousness was the crucial issue. the emotional pressure of the attorney’s desperation should not alter your objectivity. 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. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. the next task is clear. in relation to which. Regrettably. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. attorneys would call you only for ironclad solid cases in which they have every confidence. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. In reality. does the attorney have merit? As a rule.30 THE PSYCHIATRIST AS EXPERT WITNESS. 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). of course. the minority are the ones who pose the problems. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. followed by review of the documentation. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. Scheduling considerations may determine the first task. However. or a tendency to want to withhold information. stating that the patient’s dangerousness flowed from his being charged with slashing tires. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. a behavior that certainly did not seem all that threatening. On perusing . For example. I recommend listening for indexes of venality.
will argue with you at this point. 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.First Principles 31 the old record. in a competence assessment of an elderly woman. I decided those were near-enough equivalents. faced with this disappointing fact. 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. arguments are the attorney’s attempt to browbeat you into changing your mind. Expert witness work is hard enough without bad faith. Most ethical attorneys. I telephoned the attorney and demanded to know why he had withheld this history. Obviously. for instance. 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. you give your conclusions. and the result may be your withdrawal from the case. For example. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. based on the patient’s history of significant violence. after you have given your verbal report. and the arguments fall into two categories.” After mulling this over. If he or she withholds or distorts information or lies to you initially. the benign category. (Note also in this example the value of the previous record. but I emphasized that he and I needed to be clear about the fact that I would testify . the malignant category.) The second red-flag situation occurs when. In the second. the wording in which your opinion is couched and the substantive alteration of your opinion. In the first. the only safe course is not to work with that attorney. 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. therefore. A delicate balance must be struck between reasonable flexibility about. 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).” He wondered if that could be equally well expressed by “areas of competence. however. such pressure should be resisted. You cannot afford to embark on a course of work with someone such as this particular attorney. Some attorneys. Somewhat annoyed. based on your review of the database. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. Another less knowledgeable group of attorneys will be educated by your discussion. then you have to expect the same in the future. however. 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.
and so on. to “go over” my report. The attorney asked for major cuts or deletions. and withdrew from the case. In yet another case. Your request should be global. in an extended phone call.32 THE PSYCHIATRIST AS EXPERT WITNESS. finally. even if some material is irrelevant and other parts are inadmissible. shape or form whatsoever. The attorney said he was offended that I should even think he was suggesting omitting something. . In another case. regardless of what may be precluded by rules of evidence and discovery. This is the final opinion I am giving here and now. his senior partner wanted to deemphasize the subject by changing some wording. It is important to ask for everything from the attorney. the remainder of the opinion. I could not ethically omit it. tactfully. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. This was trivial. the retaining attorney. in fact. and did not stop until I said. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. after discussion I accepted that. however. rather than Volume I. inclusion of somewhat negative evidence would show objectivity. that since I had read it and thought it relevant. wanted. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. Since only the final (or courtroom) opinion is determinative. multimillion-dollar will contest. hung up. I had prepared a 22-page single-spaced report. and so on. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. and testify to if asked. Although delighted with this level of detail. only the final opinion really matters. and I accepted. This suggestion was acceptable. In a variant on this issue. I said I would change nothing. an opposing attorney asked me on the stand when I had received various parts of the database. moreover. under the specious rationale that this method would permit seeing the evolution of my opinion. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. I did not recall because I do not keep that kind of record. this rationale is especially ill-founded. in any way.” The attorney moved on to other matters. One attorney nearly drove me mad by releasing dribs and drabs of material. “withholding” important data from the jury. He asked me to use the dates of the depositions I had reviewed. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. The negotiating discussion moved into argument. The attorney made a big show of my “concealing” this information. Volume II. Agreement was struck. in a high-profile. I told him.
He was photographed doing the crime. “Look. look critically for claims. if you will. but I’d like you to do this evaluation on him anyway.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. Second. I think this guy is probably not insane. but you can only imagine it because the actual document has not been provided. First. Either undertaking or turning down such a case is a defensible position.” 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. 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. I have found that attorneys for some reason often fail to send the exhibits to depositions. Recall that a plaintiff can claim anything at first. As you read the complaint. each element of which may be confirmed or disconfirmed by other material in the database. you are creating a checklist. This ethical dilemma arises when the attorney says. because I’ve got nothing. directed not toward the patient or examinee but toward the attorney. 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. after your report. This problem is a variant of a countertransference issue. My own approach is as follows. it is up to you. for example. you should consider some important points. However. a situation sometimes occurs that requires special mention. Referral to another or an additional expert also may be indicated. feel free to use it if it suits your own preferences. Forensic countertransference is further discussed in reference 2. In general. even data of dubious validity. 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. facts. and connections that can be checked against the primary record data and flag those in some way. long pages of deposition testimony drone on about the exhibit. . develop a list of documents that need to be supplied and devise a way to check these off once you have received them. check the documents you receive against the cover letter to be sure you have everything you should. I find it helpful first to read the complaint so that you know what the basic issues are. As you go through the documents.
you are familiar with basic interview approaches). cold. advance screening. I read the medical records and clinical material or the equivalent. the testator. for example. This permits. if you have not already done so. the witness. Given the complexity of many psychiatric malpractice cases. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. or with only the complaint reviewed. the defendant. Note for completeness that some experts like to start by examining the litigant first. or whoever is involved in the case (presumably. . At this point.. perhaps by a paralegal. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. and be prepared to acknowledge this constraint as a limitation on the data. however. I strongly recommend reading large chunks of material at a single sitting. you will want to interview the plaintiff. accept it as a limitation. you may also request that the attorney’s office create the timeline.g. SECOND EDITION Second. The Interview After reading the materials. Such an examinee-first approach. you also may want to review relevant literature on the subject. exert every effort through your attorney to obtain enough time to do an adequate examination. A laptop computer for this task may be quite helpful. makes it harder to focus on hot spots of the case or areas of contradiction in the database. 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. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. 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). then to check the record to determine whether the complaint or issue has any validity. Some discretion. third. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. The attorneys on either side of the case may limit the interview time available. no matter how difficult the scheduling might be. including your own. your interview queries would thus arise directly out of the material.34 THE PSYCHIATRIST AS EXPERT WITNESS. the depositions or witness reports. insanity in a criminal context). you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. If the appropriate amount of time for your examination cannot be obtained. and selection of a safe environment may be required for examining potentially dangerous examinees.
then to read the database. be spared this burden. 3. exaggerating symptoms. it is certainly beneficial for teaching and for self-review for quality assurance. based on the belief that such an examination can only hurt the case. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . unobtrusive note taking probably represents the optimum compromise among choices. it might be effective and appropriate to examine him or her first. the absence of this datum must be factored into the opinion. Examinees commonly play up to the audience or recording device. but I strongly recommend opposing their occurrence through your attorney. to have the interview audiotaped or videotaped. although this irritates some examinees more than writing during the interview. 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. Not uncommonly. Examinees who must travel to see you should. “You wouldn’t let me!. cuing. Note that when you are retained by the defense and wish to examine the plaintiff. that side’s attorney may refuse to allow you to do so. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. alternatively. then to examine him or her again to clear up matters raised by the written material. Jurisdictional rules may make one or all of these procedures mandatory. inhibit free-ranging inquiry. For example. Verbatim material also can be obtained in this way. an audiotape or videotape of an interview may be constructive. For a number of circumstances. the expert will receive a request to have an attorney or paralegal present during the interview or. however. for some experts. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus.First Principles 35 If the witness lives locally. presumably. when examining for the opposite side of a case. as a rule. If you are unable to prevent the above intrusions.” was appropriately disconcerting. The fundamental reasons are as follows: 1. However. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. 2. 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. focusing on making a recording. Inappropriate interruptions and objections. in one case. This decision is legitimate but bears consequences. and suggestions from the attorney present may contaminate the process.” My immediate response. more authentic) responses to your inquiries.
.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. be it civil or criminal. 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.36 THE PSYCHIATRIST AS EXPERT WITNESS.Attorney Larry Cohen (personal communication. behind the examinee). p. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. 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. but the following vignettes make the point clearly: For example. a psychiatrist interviewed plaintiffs with an attorney present. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. is whether the case is fundamentally plausible. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. If the attorney attempts in any way to cue or coach the examinee..” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. warn once.. and so on? .g. March. (4. The following are four of the principles that I apply as a generic framework for this purpose. Plausibility The first question to ask of the case. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. distortion. “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. in the unpublished 1996 case of Lailhengue v. and I want to sue him.... This subject is addressed extensively elsewhere (3). 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. . a mass tort in Louisiana. as when the complaint boils down to. Mobil. 322) To offer a structure for this stage of the inquiry. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. Do the deviations from standard of care sound hokey.
the outcome. even if asked to do so or tempted by medical ne- . observations. or the alleged damages? For example. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. The notion of the alternative scenario can be essential for assessing civil claims. 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. Finally. Alternative Scenario In the film The Great Train Robbery (Crichton M. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. remember not to offer any treatment or treatment recommendations to your examinee. If the situation did not occur in the manner claimed.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. 1978). he had made several outgoing calls during the time period of the alleged molestation. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. in a sexual misconduct claim later proven groundless. however. how might it have occurred alternatively? Is there another way of explaining what happened. the following dialogue occurs between the trial judge and Edward Pierce. about the historic English crime. 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. she assumed the doctor was not present and could not refute her claim. She had apparently established these referents by calling the office and receiving no answer. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. or for some criminal claims of insanity. MGM/UA. The phone records aided in challenging the claim by providing a time stamp. as well as disability evaluations and similar tasks. 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.
you can ask for a break (water. Third. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. I have been retained by (your side. unlike what you may be familiar with from other doctors or therapists. SECOND EDITION cessity as treatment issues emerge in the interview. Only when I subsequently read her deposition did her entire . that is. First.38 THE PSYCHIATRIST AS EXPERT WITNESS. Note the fully intentional structural resemblance of the above paragraph to informed consent. as noted early in this text. possibly with reporters present. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. you will interview the subject (plaintiff. and you must keep several issues in mind. Is the patient convincing and plausible? Do the words match the music. you do not have to answer any of my questions. if not. restroom) at any time. what you say may come out in a report. 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. in a deposition. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. she had plausible answers for all my questions. the court). you are attending to his or her demeanor and its relation to credibility. answer them as best you can. Her emotions were strong and appropriate to the content. and others) as part of your exhaustive review of the database. move on to the substance of your interview. The relationship is not a medical one. defendant. compare the consent form in Appendix 1. or in an open courtroom. the other side of the case. but since I can only be useful if I am objective. You will be challenged to weave interview data into the totality of the case. in both civil and criminal cases. recall that anyone can really be fooled. Other warnings. And finally. such as informing the examinee which side has retained you. hurt your case. my testimony may help your case. I am entitled to make note of that. there are some things I need to inform you about. and if you do not. what we talk about here is not confidential because I am not your treater. Do you have any questions about what I have told you so far? If the person has questions. seem to be called for out of fundamental fairness to your examinee. although I hope you will do so. and treatment offers are inappropriate. or have no visible effect on your case—only time will tell. Second. As you are interviewing the examinee. please sit down” but before anything substantive has been said: Before we start. Fitting Together the Interview Commonly.
but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. but did that deviation cause the damages.” In the civil system. Similarly problematic is the matter of intervening causes: “Dr. 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 . Besides serving as a valuable lesson in humility. the preexisting condition must be deducted from the damages. The plaintiff ’s failure to take those remedial steps does count against him or her. it only means that you’re being conned into thinking that you’re not being conned. in the context of the basic legal concept in tort law of “taking the plaintiff as you find him or her”) or whether. a defendant may be mentally ill. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. because of their psychopathology. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. Jones did Y and the plaintiff did Z. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. because the defendant is not causally responsible for what happened earlier.First Principles 39 case fall apart. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. particular plaintiff vulnerability for which the defendant must be held responsible. especially when they themselves. Such distinctions are extremely significant in the hard monetary realities of the legal case. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. the case was highly instructive: interviewees can be extremely convincing. but those efforts may fail or be misdirected and may even make things worse. believe deeply in their position. on the other hand. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. For example. The Causation or Connection Dilemma In many forensic cases.e. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. Smith did X at this point. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. but then Dr.. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background.
” there may be subsequent posttrial motions. . Washington. American Psychiatric Publishing. DC. 2002 Gutheil TG: Reflections on coaching by attorneys.40 THE PSYCHIATRIST AS EXPERT WITNESS. or incident. 63 Ohio Misc 2d 533 at 534. and so forth that require revisiting the materials. because they would be hard to replace. or 2) return the materials to the retaining agency. and what the exacerbations were of preexisting conditions. Even if a case seems “over. In addition. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2. mistrial claims. keep the latter indefinitely. all case materials except your reports. then is sexually abused by a treater. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. they may serve you to recall the case at a later point for research or publication purposes. two major approaches apply: 1) shred or have a reputable company shred the paperwork. Kirby v Ahmad. SECOND EDITION were of a particular deviation. with permission. 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. J Am Acad Psychiatry Law 31:6–9. and your interview notes. What portion (usually. References 1. 2003 3. 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. although it has not yet gained broad enough acceptance to be generally admissible as evidence. 1994 Gutheil TG. work by Pittman and Orr (5) on differentiating serial trauma shows promise. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. if any. what the results were of subsequent events. event. Further research may reveal other promising approaches (6). and then has other symptoms or more of the same symptoms. If you are discarding case materials. Another good rule is to discard. Or. appeals.
3rd Edition. 5. J Psychiatry Law 21:33–76. Zasler ND. 2005 . 2007 Borum R. Medical Chances: How Patients. in Clinical Assessment of Malingering and Deception. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Bull Am Acad Psychiatry Law 21:37–52. 1990 Suggested Readings Appelbaum PS. et al: Medical Choices. Families and Physicians Can Cope With Uncertainty. 4th Edition. 41 6. J Psychiatry Law 24:3–25. Chapman. J Am Acad Psychiatry Law 31:232–238. 1993 Deaton JSD: Toward a critical forensic psychiatry. Assessment 4:321–324. 2003 Group for the Advancement of Psychiatry. Guilford Press. 1991 Lees-Haley PR. 2008. et al: Response bias in plaintiffs’ histories. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Feinbloom RI. Routledge. 1993 Bursztajn HJ. New York. Baltimore. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. J Am Acad Psychiatry Law 33:158–175. Williams & Wilkins. Williams CW. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. Brain Injury 11:791–799. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application.First Principles 4. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. 3rd Edition. Hamm RM. 1997 Pittman RK. MD. Guilford Press. Brunner/Mazel. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. Edited by Rogers R. Lippincott. Otto R. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. New York. New York. & Hall. New York.
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In a suicide malpractice case. in this chapter. The discussions within this chapter should be considered an introductory survey. for example (the most common claim against mental health professionals). 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. this bias means that the outcome of an event appears as though it had been far more foreseeable. and 4) proximate cause. Sometimes forgotten is the fore43 . every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. than was actually so before the event in question occurred. Psychiatric Malpractice Cases One of the most critical issues in psychiatric malpractice is the failure to prove all four elements of malpractice (dereliction of a duty directly causing damages): 1) duty of care. More practically. you already know the person is dead. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. 2) breach of duty. 3) injury to the patient. once you know it has already happened. 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,
and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. “This is so clear and memorable that I will naturally recall it later. nor are the queries necessarily posed the way you would do so. plaintiffs. or it can be a highlighted entry. . of what this record entry contradicts or supports in the deposition. for example. but depositions consist of attorneys’ questions to various parties. if present. 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. the expert may draw conclusions from the record alone. a post-it. as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. On some occasions. after the records. defendants. Next. 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. 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. any forensic document) without making some sort of notation of what is significant. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. This notation can be on a separate sheet of paper of similar notes. Because keeping a medical record is itself part of the standard of care. I find it valuable to look at the social service history. make some sort of notation each time you read through the record. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. There is something of a translation burden on you to read between the lines to determine the issues. The point may seem obvious. When reading the deposition. you may be tempted to say to yourself. of your thoughts and reactions. a marginal scribble.” However. and others. these may not necessarily be the questions you would want to ask. or a folded corner of the page. you may have to pose your own questions to the parties. as a separate document. you are seeking consistency and credibility.Types of Typical Cases 47 the tests ordered. an underline. In the process of reading. opposing experts. of any queries or signs of missing data that the record generates to be checked later or elsewhere. through your retaining lawyer’s permission and intercession. To save yourself reading everything from scratch each time. you read the depositions of witnesses. or whatever. of course). the next time you read this document for deposition or trial may be 7 years away. as different things may strike you on subsequent review.
Criminal Responsibility Cases In cases of criminal responsibility. On occasion. For example. friendly approach into letting your guard down and discoursing freely on your opinions. exert the effort to stand back from the process. are the most significant. you are lulled by this informal. it is inappropriate to call or write directly to the opposing attorney. remember to consider diminished capacity as an intermediate condition. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. and so on. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. SECOND EDITION Although the more information gathered. Is this defendant someone who seemed to show . in my (and almost everyone’s) view. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. the more helpful it would be in forming your opinion. weighing the logic of the deponent’s responses.48 THE PSYCHIATRIST AS EXPERT WITNESS. The appropriate response is. or expert. “I think you should talk to the retaining attorney. is historical material. Because of the flow of material and its often fascinating content. and records of any treating clinicians from points close in time to the alleged acts. All communications beyond the most mechanistic (giving the opposing attorney’s secretary directions to your office for a deposition) should be channeled through your attorney. In those jurisdictions where the issue exists. Doctor. To read critically. you can be drawn into the prose by the unfolding drama therein recorded. what do you think about this amazing case. eh?” Presumably. you may confront the classical poles of the issue. statements of the arresting officers. a case wherein the defendant had or has a major. litigant. These unethical conversations usually have an informal tone: “So. namely. Of second-rank importance. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. while reading a deposition. Out of the entire panoply of available material on a criminal responsibility case. These would include witness and victim reports. but still relevant.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. 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. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. data gathered at the time of the alleged act. The truly challenging case lies between these extremes. your attorney’s confidential trial strategy.
malingering is especially common and problematic in this assessment. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. for example. the cause of the crime. Because of the seriousness of criminal penalties. The plaintiff who claims that his or her major posttraumatic stress disorder (PTSD) and all of his or her subsequent emotional problems were caused by a tiny plastic bottle of vodka striking him or her when falling out of an airplane’s overhead compartment might raise some issues of proportion. The interview also gives you a chance to assess what might be called a sense of proportion. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. an injury from which he recovered rapidly without lasting effect. the interview in a criminal responsibility case has the least power of all the data collected. In one case. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. as with all forensic evaluations (6). and so on. although mandatory and irreplaceable. a plaintiff drank from a chemically contaminated bottle and burned his mouth. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. 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. some on . The novice expert should become familiar with useful publications on the subject (7. or did he or she have a long history of mental illness with recurring hospitalizations and delusional symptoms that relate directly to the alleged act? Recall that mental illness may bear a wide variety of relationships to crime: a factor in responsibility. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. All the interview data must be fitted to the totality of the database. the result of the crime. Finally.8). an unrelated accompaniment to the crime. a surprising number of individuals avoid treatment. I find the interview for an emotional injury case to be of primary value. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury.
however. The response “My attorney told me not to” conveys its own obvious message. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. with intrusive flashback memories. The shopper then may sue the store for harassment and consequent emotional harms. SECOND EDITION their own accord and some when given this advice by their attorneys. In this situation. may be relevant. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. History. I . Such a search can be embarrassing and humiliating to anyone. “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. This history may represent the plaintiff ’s “thin skull” (i. Next to the small table where we were sitting. A question you should ask your interviewee is. I had to interview him in his home because he claimed to be phobically homebound. These “critogenic” (“law-caused”) harms often cloud the picture of the claimant’s actual damages caused by the defendant(s) alone (9) and must be factored out. but they may also be relevant to assessing damages or preexisting conditions. 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. and startle responses.. 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. especially idiosyncratic history. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. in regard to which the defendants must “take the plaintiffs as they find them”). you again often encounter the previously described problem of factoring out the effects of serial trauma.50 THE PSYCHIATRIST AS EXPERT WITNESS. For example. Finally. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. He claimed to have full-fledged PTSD. too. The interview took place in his basement recreation room. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. preexisting vulnerability. avoidance. as a result of the mugging. only to find that the goods are legitimately accompanied by a receipt. Not only might these provide a context for the injuries claimed. 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.e.
unimaginative. As the “moving . usually not. ate like a lumberjack. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. This case also illustrates the maxim. the former passenger was revealed as a serious. In a famous incident. the alleged malpractice. not totally probative. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. There is a fundamental asymmetry about media coverage in almost every case. without warning. High-Profile Cases At one point or another. One of my cases raised this issue. It is. then you get the case.Types of Typical Cases knew this because. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. injury. to get the actual data. Initially. that is. the jury ultimately decides. it turned out. fellow passengers. I myself jumped in my chair. He was strapped into his seat. had no signs of trauma whatsoever. stoic fisherman. 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. On detailed examination. you may be asked to review a case that has been extensively covered in the media before you have been retained. the nose of the plane fell into the harbor. and. but at incredibly high levels. of course.357 Magnum close to his ear. looking straight down past his toes. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. He slept like a log. 51 This observation was potentially valuable and worth recording. the plaintiff or prosecutor can say anything. the case certainly seemed meritorious in theory. He gave the impression on interview that if you fired off a . dying. on careful inquiry. therefore. who. On the surface of his story. perhaps so. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. however. This passenger. or crime has generated publicity first. which the average member of the public really doesn’t understand. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. Boston Harbor with freezing. and did not dream. he saw a jagged metal edge and below that edge. he would have said calmly. yet the observation is valid. An apartment dweller sued her landlord for failing to respond to the infestation. had been in the front row of seats just behind the break in the plane. it seemed to me that this incident would induce PTSD in a stone statue. don’t assume—examine. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic.
to influence the public powerfully in advance. but so do a number—perhaps a greater number—of venal witnesses. Therefore. SECOND EDITION parties. but this principle may be readily overlooked in a media frenzy. the standard references the average reasonable . in hopes that some of that public will later become jurors. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. The defense attorneys must say “no comment” each time. (Chapter 9. you have to be alert to this potential biasing factor and be aware of the media asymmetries.” In another case. Some attorneys may try. Ninety-nine percent of the time. rip off the covers in moving cars. selling testimony instead of time. In malpractice cases. “Developing and Marketing a Forensic Practice. until it is proven in a court of law. pushing the case for all it is worth. None of this trumpeting means anything.52 THE PSYCHIATRIST AS EXPERT WITNESS. the defense attorneys cannot answer the media’s questions. 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. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. Even though you may try to tune out the media. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. of course. a prosecutor may state to the media that the defendant’s 23-year state hospitalization for schizophrenia was probably malingering and certainly has no bearing whatsoever on the insanity issue.) Another stigma of the hired gun is the counsel of perfection. for example.” the attorneys have to create the case from scratch. the plaintiff and prosecutor inevitably bias the public’s perception. and spill hot coffee over their thighs and sue McDonald’s.” in this volume provides more reliable methods of publicizing your practice. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. because they don’t want to give away trial strategy. 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). consciously or unconsciously. you simply may be reading your newspaper before you are asked to consult on a case. lest your review should begin with a one-sided perspective. In short. A plaintiff can say to the media. for example. “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. however. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. there is no case until it is brought. By doing this.
Indeed. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Another variation on this theme is. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. Some experts believe that physicians are never wrong and always justify whatever the physicians do. in the real world. I personally have never heard of or read that standard anywhere.. the counter to such claims often begins with the phrase “Well. The real issue is: does the standard of care require more.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker. the likely explanation is that the treaterexpert made it up to suit his views of this case. Waffles are evasive. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. “If the care had been adequate. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. but no one lives real life like that. 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. but malpractice litigation hinges on what is required by the standard of care. it’s a very serious situation.. . this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. For example.” Many “good ideas” theoretically might have contributed to the patient’s care. The following is a real-life sample: Examining attorney: Does the standard of care require restraint of this patient? Hired gun witness: When you have a patient who is this out of control and depressed. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is.” This testimony is a classic hired gun claim. An even more malignant twist is the made-up or artificial standard. The hired gun often advances a perfectionistic standard as though it were the average. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). “They (the defendants) should have done more. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. Anyone always could have done more.
and where I believe the standard of care was breached was that the patient. but. Getting the feel for how the waffle works takes a certain amount of reading of case material. Note that this entire chunk of testimony is one run-on sentence. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. we don’t know whether he stops or doesn’t stop and get [drug] or not. an hour before that or less signs a 3-day statement and then just disappears. I am not in a position to tell you that that would be the only choice. he should have been [that is. That was the answer in toto. took some blood pressure pills one time in [city]. reasonably would have been. he gets frightened. More to the point. specifically. there is a lot of despair and a great deal of thought disorganization in the patient. that this is a patient with some history of a. of unpredictability. 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. rather than ideally. . Is that a yes or a no? In fact it is neither—it is a waffle. The entire answer took four full deposition pages. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. Note how that witness actually avoids responding. but that is the answer to a different question. a patient had escaped from the hospital. actually.54 THE PSYCHIATRIST AS EXPERT WITNESS. goes all the way to [another city]. It certainly should have been considered. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. Also note that the failure to consider a valid option indeed may constitute negligence. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. and that is frequently the hallmark of the hired gun. an emergency petition ideally would have been. In the following example. then committed suicide. it seems nearly impossible to extract the actual opinion from the thicket of prose. he has taken in despair 10 lithiums some years back. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. the mental state and what’s gone on in that patient’s mind is very uncertain. 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. 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]. a reasonable history.
Gutheil TG. II: clinical uses of legal standards in the interpretation of subjective data. and that includes they would be safe within or without the community. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. et al: Decision-Making in Psychiatry and Law. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. American Psychiatric Press. Edited by Simon RI. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. Bursztajn H. Gutheil TG. for better or for worse. Conceivably. but that doesn’t mean that it’s without supervision. note that one cannot. Science 211:453–458. New York. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. with impunity. 3. Brodsky A. Baltimore. we may be dealing with an incompetence issue. Guilford Press. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Kahneman D: The framing of decisions and the psychology of choice. Shuman DW. 4. Int J Law Psychiatry 6:331–350. 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. 6. we must consider another possibility regarding the above examples. Yet. a trend of such waffling answers in deposition does set off my hired gun detector. 1983 Bursztajn H. Washington. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. Williams & Wilkins. MD. 1991 Fischhoff B: Hindsight. foresight: the effect of outcome knowledge on judgment under uncertainty. 3rd Edition. Finally. I would prefer never to assume malice when incompetence would serve as an alternative scenario. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. In fairness.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. I: malpractice prevention and the use of subjective data. Bursztajn H. References 1. Int J Law Psychiatry 6:317–329. DC. 2002. 1981 Gutheil TG. J Exp Psychol 1:288–299. 2. 7. 2008 5. . 1975 Tversky A.
1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. 1987 11. SECOND EDITION Gothard S. 2000 10. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Gutheil TG: The problem of evasive testimony: the expert “waffle. Law and Human Behavior 19:493– 505. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. 2005 Simon RI. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. et al: Detection of malingering in competency to stand trial evaluations. 1999 Gutheil TG: Fundamentals of medical record documentation. 2nd Edition. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. 2004 Knoll J.” J Am Acad Psychiatry Law 35:112–117. American Psychiatric Press. psychiatry and the law. Washington. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity.56 8. J Psychiatry Law 28:5–18. Legal Studies Forum 9:41–53. Bull Am Acad Psychiatry Law 21:23–36. Bull Am Acad Psychiatry Law 20:409–418. Psychiatry 1:26–28. American Psychiatric Press. 1993 . Psychiatric Services 50:767–773. DC. J Am Acad Psychiatry Law 34:215–223. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. 1995 9. 1992 Gutheil TG: A confusion of tongues: competence. THE PSYCHIATRIST AS EXPERT WITNESS. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. Meloy JR. Psychiatr Clin North Am 17:439–446. Washington. DC. Viglion DJ. insanity.
preparing for what to expect from the various witnesses and documents. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. Note that some jurisdictions practice “trial by ambush” without expert discovery. In both cases. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. if any. Under some circumstances.CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. Attorneys probe and define the limits of their 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. there is the period known as discovery. the attorney will likely write the actual prose of the 57 . use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. From the viewpoint of the expert.
SECOND EDITION answers for you. It is critical that everything in your interrogatory be something that you have already decided you are able to support. without retaining you at all. 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. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. Depositions The second major area of discovery is the deposition. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. attorneys sometimes ask you for your tax returns of the last 5 years. you do not want to be associated with this attorney. the expert. Do not attempt to decide what is or is not objectionable yourself. read every such document before it is turned in. I advise you to withdraw from (or refuse to take) the case. For example. This approach saves you from having to retract misstatements on cross-examination. reasoning that they can always modify their opinions at trial when the right questions are asked. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). your attorney will advise you as to what requests for information or documents will be objected to or refused. guided by your input as to what you expect to testify to at trial. 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. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). based on his or her interpretation of the rules of evidence. hyperbole hurts you. that is an attorney’s function. In addition. Opposing attorneys usually follow one of three agendas.58 THE PSYCHIATRIST AS EXPERT WITNESS. the interrogatory is sworn testimony. If you discover this to have occurred. However. or some combination of the three: getting your opinion. and painting you into a corner. it is always unethical. On occasion. even worse. If you have never given a deposition or you feel a bit shaky about the procedure. review Chapter 5 in the companion volume to this book. The Psychiatrist in Court: A Survival Guide. either from clinical evidence or experience or from facts in the database. obtaining admissions. .
a telephone conference. you are ethically obligated to so inform your attorney. the attorney is not averse to discovering precisely those points that will help his or her side of the case. 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). In this latter context. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. as the Anglo-Saxons phrased it. over and above what has been conveyed in reports or interrogatories. as a way of ensuring that your opinions may be brought out at trial. time considerations. On the other hand. for instance.Discovery and Depositions 59 Getting Your Opinion First. and deadlines may dictate this suboptimal condition. and so on. the attorney. The attorney can then prepare cross-examination. or a full-fledged repeat deposition. This discovery function is a completely legitimate task and one with which you should cooperate fully. but this is a subintention within the larger discovery framework. who is in turn obligated to inform the attorney on the other side of your new opinion. the police. the defendant. 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. inform his or her experts about facts or issues to pay attention to. a witness’s deposition or medical record that you had not seen before your own deposition. When you subsequently receive. This information may or may not trigger a supplemental step for you in the form of an interrogatory. the plaintiff. during the course of the deposition. This ploy usually can be defused by your attorney. to empty your wordhoard. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. if any. but not ideally. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. admissions and concessions of points or . Just answer the question. Of course. taken before the entire database has been acquired or reviewed by the experts. scheduling problems. however. depositions are occasionally. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. and so on. Attorneys also stress that the deposition is their one chance to find out what you have to say. select rebuttal witnesses. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you.
fairness. competence. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. The most familiar variations include attempting to get you to generalize about psychiatry and ignore the differences among the schools of thought within the field. to kill coworkers. raised many possibilities. When you later give testimony in court.60 THE PSYCHIATRIST AS EXPERT WITNESS. Your Goals for the Deposition One scholar has described the witness’s goals as truth. also under oath. insanity. what are we to believe. that is. 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. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. even though it was the preadmission history. much was made of this testimony. You are locked in to that testimony. SECOND EDITION views detrimental to the other (i. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. Indeed. . Truth. conceptually. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. The answer was no. In a wrongful commitment case against the hospital. His mental status was not particularly demonstrative of symptoms of mental illness. so that your opinion is constrained or limited in a way that decreases its impact. 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. On arrival at the hospital. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner.e. At trial. The points may relate to guilt. and accuracy (3). is the final standard. although the history. however. negligence. not the mental status by itself. A patient was committed because of threats. under oath. your) side of the case.. based on paranoid-sounding content. This procedure elicits sworn testimony. Accuracy addresses the clarity of your vision in relation to the known facts in the case. For example. of course. or damages—the entire gamut of forensic possibilities. he denied to the admitting physician that he had any violent intent. any contradiction is obviously damaging to your credibility: “You swore this now and that then. that justified the admission. of course. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance.
hoping to hit the key points if only by accident. Occasionally. and your planned testimony. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. Get enough sleep the night before the deposition. alert. another deposition date can be scheduled. focused. Rather. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. The Need for Concentration The concepts previously mentioned should make clear that a deposition is not a mere formality to be gotten out of the way and over with. it is an essential part of the evolution of a case and thus your role in it. Unfortunately. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. however. aware of the serious weakness of the substantive aspects of their case. To do your job. if more time turns out to be required. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. try to eliminate distractions. you must be rested. several factors urge clearing substantial blocks of time for deposition. If you do not go home after a deposition feeling tired and drained. this also takes a toll on the court reporter. you were probably not paying sufficiently close attention. 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. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. Still others. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. intense concentration sustained over hours is hard work. Beware of the natural tendency to dissociate during droning questioning over prolonged periods.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. . More details about this necessity are discussed later in this chapter. looking for dirt before even addressing the instant case. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. will spend hours inching through the expert’s credentials. The expert should clear a full day for the deposition to be on the safe side. your opinions (and their limitations). A small number of attorneys attempt to wear down the expert by sheer passage of time. Prepare for this. and vigilant at all times. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”).
therefore. yes. A more effective answer might have been. which I codirect. Question (attorney for staff member): Knowing what we know today. On rare occasions. or you knew and didn’t act. First. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. If the question is compound or complex. you can give a useful compound answer to a compound question. Second. Note. let me answer all three components. ask that it be broken down. the case manager’s lack of understanding might be negligent. ask to hear it again or have it read back. “The patient gave no sign. 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. in order to determine competence.62 THE PSYCHIATRIST AS EXPERT WITNESS. they have to enter into a dialogue with their patient. I am serious. or evidence of a propensity for violence. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked.] Answer (by case manager): I don’t think I would agree with that. his act could . 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. warning. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. so you were negligent. can we agree that on [date of murder] you did not have a clear understanding of [patient’s] propensity for violence? [Questioner assumes there was a propensity in the patient—a hindsight view—hence. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. I don’t—I wouldn’t agree with you there. so you were negligent. no. yes. in the following example. to be an appropriate way of determining competence in the clinical situation. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. Question: So. but it is quite risky and may compromise clarity. And the third part of your question is. 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. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. it is serious. If there is the slightest doubt. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever.
or did you make that entry based on information given to you by others? [These are. Note that an excellent and self-contained answer to such a question or line of questions is.] Answer: Right. Gee. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. moreover.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. the answer.”] Question: Is that the procedure in which you make notes.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. not the only possibilities. “I don’t recall. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. Her answer ignores the fact that the record does not always note the source of the clinical data. But this witness has set a standard for herself: “hope for truth. It is unlikely. a patient with apparent bipolar disorder challenged an involuntary commitment. and grandiosity. reveals the hazards of too effusive. in a vacuum. vulgarity. . When seen. The deposing attorney inquired. or weaken certain conclusions (4). the witness should decline to answer yes or no to such a question. and too extensive an answer to deposition questions. In addition.Discovery and Depositions 63 neither be foreseen nor be prevented.] Answer: Gee. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. no. that the witness specifically remembers such a detail. challenge. [The witness sets her own standard of care. of course. any good nurse does that. of course. did not constitute sufficient evidence of bipolar disorder (although. not what others have told you? [The attorney tightens that very screw. For example. The following excerpt of testimony given by a naive fact witness. I sure hope I saw him because I usually don’t write things unless they are true. Clinical data also can be cut into discrete segments to attempt to refute. testifying 5 years after a suicide. Obviously. “In a vacuum. too discursive. 5 years and hundreds of patients later. paranoia. the totality of symptoms did so). from a previous shift—is universal practice. you write down what you have observed. making a chart entry based on what you were told by other staff —for example. Question: Did you observe [patient] attending those meetings. not the individual element.] Yet another deposition tactic is what I call gerrymandering the data. which might be used against her nursing colleagues.” would be perfectly okay. right. social obnoxiousness in various ways. [This is not an answer to the question. the patient manifested rapid press of speech.
insist on a time frame. They are. not only for the spelling of your name but for contact after the deposition for questions. The pause also allows other attorneys to object. Overlapping dialogue is awkward or impossible for the reporter. 2. Also remember to listen carefully to the objection. or you might infer something useful from the type of objection posed. but sometimes they do so deliberately to distract you or to break your concentration. cannot be quoted out of context. shrugs. Correct any errors. and the importance of speaking slowly. incomprehensible questions. usually accidentally. and the like. pause a moment. the trap of double negatives in the questions.” “no. drugs. If any of these summary phrases do not trigger recognition. “yes. The Psychiatrist in Court: A Survival Guide. If your attorney says. and other myoclonic responses. Attorneys may sometimes interrupt your answer. Giving the stenographer your business card before the deposition is a highly useful courtesy.” “I don’t recall. Spell unusual names. (See also Chapter 5 in the companion volume. review the corresponding discussions in the companion volume. clearly.) Your answers must be verbal and aloud. in essence. Insist on finishing your answer to your satisfaction. in the belief that your pause means you have finished. instruct you not to answer. “Objection. Other useful basic tips include the following: 1.” reflect a moment on why the time frame might be important in relation to that particular question. in effect. because the stenographer cannot record winks. terms. Recall that the written transcript is the durable version of the deposition. SECOND EDITION The Pregnant Pause After the question is asked. Pausing allows you to replay the question in your head and to think about your answer. lack of time frame. Answers Deposition answers are drawn from a surprisingly shallow pool.” or a short narrative response that contains the question so that the response. Do not tolerate this interruption. Speak slower than usual.64 THE PSYCHIATRIST AS EXPERT WITNESS. 3. your attorney may be trying to call your attention to something. Some key points made in that volume are the hazards of guessing. a garbled record from too-fast speech wastes everyone’s time and money. who cannot take down two simultaneous conversations and produce a clear record. nods. whose written record will be the actual form of the deposition in all future contexts. and so on. shakes. immediately correct . and carefully for the stenographer. each speaker should finish before the other begins. Be careful about overlapping speech. If your concentration slips and you give an answer that you later believe was wrong or even misleading.” “I don’t know. not your glib response in the deposition room.
“Doctor. 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. I’d be lying. To err is human. the deposing attorney may ask. where you are retained by the defense. I tell a lie. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. the entire deposition takes place under oath and under penalty of perjury. . but leaving the error on the record means having to retract it on cross-examination. this may be phrased as when to throw away the “throwaway” questions. Two points about this problem should be kept in mind. would you agree that a patient’s sui- . he could accurately answer in the negative. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. Therefore. Second.To tell the truth. As a deponent witness.) When to Throw It Away In my consultative experience.” (3. these otherwise colorful colloquialisms must dismay the listener and raise questions about either the testimony or the seriousness with which it was delivered—both unfortunate concerns. the deposition may be paused for that consultation. the doctor might answer: “Well.. but I can’t say that any of them were [sic] precisely like this one. because no two fractures are exactly alike.. for example. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. No.” Of course. . In a suicide malpractice case.If I said that. . if you are concerned specifically about a matter of privilege that may govern your answer. However. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. Therefore. Therefore. (The question of coaching is more extensively addressed elsewhere [5.Discovery and Depositions 65 it on the record. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. . pp. . First. When in doubt. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. . exercise this option.. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture.6]. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor.
influenced by the TV show Columbo. an attorney. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query.” At that point. an attorney may look ostentatiously at his or her watch and say. and move on. check your watch. . make the concession. just one more thing”—contain vital material. Your retaining attorney may also get into the act. Subjected to the silent treatment. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. Remember that the failure to write something down may be below the standard of care. but the lack of the note did not cause the suicide. throw it away. have some water. wait until it gets ridiculous. having inexplicably found his or her second wind. on the record. Doctor. The attorney asks a question. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. When the answer is that clear. in the colorful argot of the national pastime. now begins to fire rapidly at the witness.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. 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. is “It ain’t over till it’s over. It is not the defendant’s negligence that is at stake in this situation but your credibility. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. of course. still.66 THE PSYCHIATRIST AS EXPERT WITNESS. The moral here. the novice witness relaxes and loses focus. may attempt to get some off-the-record insight literally in the doorway. “Just a few more questions. Quibbling over the possible exceptions or equivocating in some way helps no one. but you know enough not to get involved in that “thing. Occasionally. With an encouraging smile the attorney looks expectantly at you without saying anything. and we’ll be done.” Wait to relax only after the stenographer has put away the machinery. thinking about dinner and work to do later. not unlike some patients in psychotherapy whose doorway pauses—“oh. by the way. and you answer it.
” .” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert.Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. they often fail to realize that they do not have forensic evidence to back up those notions. that we can’t isolate ourselves with notions of “I’m not part of our society..and the answer to that question is . Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. as is “That is outside my area of expertise. Note how the first question was a total loss and had to be rejected completely. but I’m in favor of sensitivity. This method sometimes involves carefully answering the question that the attorney should have asked. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. rather than asking about. 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. 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).. therefore.” Avoid the narcissistic trap of “I can answer anything. make sure you include the question in your answer on those occasions so that no one is misled. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas.. No expert is expected to be an expert in everything or to remember everything. using categorization.. “I don’t know” or “I don’t remember” is a fully appropriate answer. For example.. and answer that part. “I understand you to be asking me.. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can. The only valid answer is that those questions are outside your area of expertise. and this response is perfectly appropriate. 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 find your question a little confusing.” in a manner to ignore those feelings. if you’re grossly suicidal and you have access to guns and drugs and alcohol. the subject matter. Some questions are curious because the attorney appears to be flailing at.
authentic or merely theatrical. occurs rarely may throw the novice witness: a roaring fight between attorneys. but your belief might interfere with your detection of negligence in this case. and demonstrate other regressive behavior. That is as it should be.” This position of timeless patience puts the onus appropriately on the attorney to move things along. fortunately. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. heretofore quiet and almost appearing bored by the proceedings. stand up in their chairs. so I assumed that they knew what they were doing. no matter how generic or basic it may seem. never losing your cool. that is not your problem. mediate the debate. more boring. “Did you make any assumptions about the case before you began?” You may be tempted to say. you will be addressing him or her in slow. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. The two sides. The only assumption you should make is good faith. In the specific malpractice context. “Well. the next question will be coming your way. . scream at each other. clear. and you might well know some of them. careful speech that may be more formal. unfailingly polite. Do not do anything. you will make it worse. after which the expert examines for evidence either way. firm. you assumed it was a medical record in good faith. This fight is an attorney-to-attorney matter. “I can continue until midnight. Clinicians may be tempted to call on their clinical skills to temper violence. the parties are really the parties in the case.68 THE PSYCHIATRIST AS EXPERT WITNESS. There are good hospitals out there. clear. In one deposition. I know that’s a good hospital. When everyone is through. and so on. meaning that you assume that the documents are what they seem to be. 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. for example. If the admission note turns out to be a forgery. should that become necessary. A situation that. or facilitate calm negotiation. more pedantic. threaten to go before the judge to plead their points.” This assumption is dangerous because it suggests bias. stay seated and keep quiet until it is over. As noted. more technical. and far less friendly and instructional than it would to a jury. Assumptions The deposing attorney may ask. The only vital difference is the way in which you speak.” as it were). Because the stenographer (and not the jury) is your audience. this implies arranging coverage for your patients should a crisis occur. Your attitude should convey. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm.
Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. the disclaimer at the front disavows its applicability in many forensic contexts. 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. Moreover. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . Remember. Most modern books and articles have multiple authors or editors. including those parts which conflict with your testimony. Comparably. But both. of course. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. you may be asked to supply the names of authoritative texts yourself. these publications are not uniform in authoritativeness. to make an informal clinical diagnosis. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. may imitate the attorneys by overvaluing these texts and ignoring their limits. then. no one wrote a previously published book or article with the exact case in mind in which you are involved. In one limited sense. you cannot take the position that no text is authoritative. For example. However. both sources are “authoritative”: PDR contains the actual package insert information about drugs. and innocent until proven otherwise. Novice experts. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. or article) is authoritative in the field or in the subject of the current case.” Learned Treatises In the course of a deposition. merely official. note whether you agree or disagree in general with the stated points. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. yet the clinical diagnosis and treatment still may meet the standard of care. and DSM gives the formal criteria for diagnoses. inescapably. Some experts respond that the DSMs are not authoritative. but ask to be shown to which one the attorney is referring. the examining attorney may ask you if a specific text (book.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. desperate for stable islands of consensus in the tossing seas of uncertainty. Alternatively. this is a matter of risk management for the pharmaceutical companies.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. After reading the entry carefully. the parallel assumption would be “Sane. Be sure to maintain a sense of proportion about these references and their utility. In a criminal context. competent. have their limits. chapter.
let the attorneys determine whether it is discoverable. SECOND EDITION When quoting the literature.. be balanced and accurate. consult your own attorney.e. check the accuracy of any numbers (9). remember to go to bed early. In addition. laboratory values. Under some circumstances. rehearse—the details of the links between your conclusions and the facts.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.. whose transcript will endure and be used for any impeachment possible. police reports. statements. The Video Deposition A modern wrinkle on the procedure is the video deposition. p. some discuss details of trial strategy in their letters to you. the camera is . and you may have to furnish copies to opposing counsel. actually visiting a site may be important. outlines or summaries for quick reference) may be subject to subpoena for the deposition.. this conversation is protected. summaries. Any notes. The usual audience of the standard deposition is the stenographer. Your attorney then can communicate with the retaining attorney. in the video deposition. Also. In some cases. Give both (or several) points of view if they exist. If you are really unsure about something. but this is not your problem. Arrange to do so with the attorney sufficiently early. You must exercise some care in these discussions as they may be discoverable. review your files as diligently as if you were going to trial. and so on so that you can buttress all your conclusions with specific elements from the database. you also may want to meet one more time with the attorney’s client before the deposition. Have your attorney review your case file for any items that might be considered work product and thus under a privilege.70 THE PSYCHIATRIST AS EXPERT WITNESS. In contrast. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. Obviously. record notes.. well before the deposition. Meet with the attorney and review the issues. Frankly admit if anything has been removed from your file. Many attorneys anticipate this problem and send only bland correspondence. (8. especially if details remain unclear or if over time the clinical condition has changed or evolved. The latter may be privileged. or “cheat sheets” (i. it is wise to review—and if necessary. 571) Final Predeposition Preparations Before the actual deposition. you will need to review a wide array of information. Above all.
the video may also serve as the vehicle (in this case. and the deponent signs under pains and penalties of perjury. juror-friendly. Recall that omission of a comma. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. representing the jury. checking for errors and typos. say. In the current economy. but under some circumstances the notarization can be waived. trial-suited English. Remember to keep your language level. the only vehicle) for the expert’s testimony.Discovery and Depositions 71 the audience. My personal favorite is when the phrase.” and rendering. not at the ponderous. If the expert is known to be unavailable for the trial dates. . of the word “not. and pedantic level of the ordinary deposition but in basic. who may see the video displayed in addition to—or. you are under constant scrutiny. The video deposition presents a number of possible pitfalls. or the deposing attorney for distribution to the parties. When you receive the deposition transcript. After the Deposition Always ask to read and sign the deposition. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. “It’s an us-and-them situation” was rendered “It’s an S and M situation. read it very carefully. this time in a permanent record. This approach risks eventually being papered out of house and home. the retaining attorney. Most court reporters are extremely good at their jobs. “irresponsible” as “responsible” are small changes with profound results. since allowing your eyes to follow the local movement will create a shifty-eyed look that some jurors may interpret as consistent with evasiveness or dishonesty. but errors can creep in. instead of—your personal appearance in court. the deponent expert should always ask for a personal copy to review in preparation for trial. careful. At least one copy of the transcript is returned either to the court reporter. As in the trial described in the next chapter. at times. the expert may wish to retain a copy for teaching purposes after the case is over. and must beware of inappropriate gestures and personal bodily attentions.” 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. you should try to direct your gaze toward the camera lens. jargon-free. If the deposition has been particularly instructive or noteworthy.
2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. 1983 Gutheil TG. Current Psychiatry 7: 25–28. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 1996 2. 2001 Baker TO: Operator’s Manual for a Witness Chair. Suggested Readings Babitsky S. Child Abuse Negl 17:571–572. Mills MJ: Legal conceptualization. 2007 Gutheil TG: Reflections on coaching by attorneys. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. 6. 1999 Babitsky S. 1982 Gutheil TG. Bull Am Acad Psychiatry Law 10:17–27. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). MD. Baltimore. Med Econ 82:45–48. MA. 36.72 THE PSYCHIATRIST AS EXPERT WITNESS. MD. Defense Counsel Journal 4:174–179. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. 4. J Am Acad Psychiatry Law 31:6–9. 2008 Rice B: Malpractice: how to survive a deposition. J Am Acad Psychiatry Law 29:313–318. Falmouth. 9. SEAK. 2003 Kaplan HI. 1993 Malone DM. IN. Lippincott. 8. 39–40. The Practical Lawyer 39:55–63. Gutheil TG. 3. Milwaukee. J Am Acad Psychiatry Law 34:18–22. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. 5. WI. Williams & Wilkins. Falmouth. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Woodruff MS: Deposing experts. MA. 6th Edition. 2005 Suplee DR. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 2006 Gutheil TG. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. SECOND EDITION References 1. SEAK. legal fictions. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. Simon RI. Baltimore. Defense Research Institute. 1987 . The Practical Lawyer 33:69– 78. National Institute for Trial Advocacy. South Bend. Simon RI. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. Vols 1 and 2. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. 7. Willliams & Wilkins.
settled. 73 . the same six Ps should be reviewed but with a slightly different emphasis.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. trials do come around every so often. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. For experts who have spent little or no time in court. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. In this chapter. 2. I review some of the basic courtroom procedures. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. For the expert witness. I addressed the six Ps of trial preparation. pled out. Preparation. review that chapter. Planning. For the expert. is recommended as an orientation. Nevertheless. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. and devising means of locating key passages in the database quickly. and they are the subject of this chapter. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. 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. If you are testifying away from home. The Psychiatrist in Court: A Survival Guide. 1. examining the companion volume. If you are uncertain about the guidelines for trial preparation.
parking arrangements. the unknown issues. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. On cross-examination. what the judge is like. Consider taking a taxicab to local courts to avoid parking hassles. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. It is not enough to know the database. Build in contingency plans for the possibility that the trial extends into the next day at least. . Confirm travel arrangements and other details. 3. You also need to hear how the trial is going. You should rehearse ways of expressing information to the jury. Clarify and confirm your travel arrangements. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. If you have a disability. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). You at least need to hear the questions that the attorney plans to ask you and to think about your answers. 6. the floor of the courthouse on which the courtroom is located. and what the emotional climate of the courtroom is. location of restrooms. and the data relevant to the other side of the case. Define the limits of your testimony. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. the location of the trial. practice sketching any visual aids you will need for the courtroom blackboard. you need to know through choice and practice how you will convey your opinion to the jury. The pretrial conference is probably one of the most important stages of preparation for trial. Even more distressing. and select useful examples from your experience to make central points. Review the weaknesses in your opinion. the contradictory evidence. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. your publications (especially those relevant to this case). 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. Most of these matters are best handled on direct examination where some measure of control can be exercised. Insist on this conference if the attorney is equivocal or resistant to the idea. Pitfalls. 4. 7. Pretrial conference.74 THE PSYCHIATRIST AS EXPERT WITNESS. Clarify in your own mind how you plan to deal with questions about your fees. and your past experiences. and all such details. 5. and the expected cross-examination. what previous testimony has been given. Practice. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. Presentation. the relevant literature.
Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. this kind of potentially valuable hearing and screening device can also be abused (2). The topic requires more extensive discussion (1).S. which are sometimes in obscure locations in older courthouses. From the viewpoint of the expert. but the essence is that the trial court judge is expected to screen challenged expert testimony on the basis of its relevance to the instant case. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). Once in the courtroom. its methodologic reliability. where the jury will be and what . sit down. named for the plaintiff in an important U. to be able to articulate the bases and reasoning behind those conclusions. 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. particularly experts. rise for the judge’s entrance.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. you will find it valuable to locate the restrooms and telephones.. the best approach is to exercise care about the methods used to reach conclusions. that is. Some scholars recommend coming in early or during a lunch break when the court is empty to sit in the witness chair before you actually go on. Practical Matters Preparing to Go On Many courts sequester witnesses. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. When you are allowed to hear the testimony of other witnesses. but if you are the only one standing. much valuable information can be gained and the tone of the room determined. Regrettably. Such a hearing. may occur prior to trial (occasionally. Supreme Court case. Before going into the courtroom. and to ensure that recognized approaches to the subject matter are chosen. Wait in the public seats until actually called to the stand. and whether the testimony will fulfill the legally required expert function in the court.e. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. experts are not allowed to be present in court for the testimony of any other witnesses.
only a copy of the expert report that is already in evidence or only a curriculum vitae). a particular citation is. Recall that in almost every case. 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. Note that some anxiety is normal. if needed. the attorneys will have it). 2) as noted.g. My own preference is to strip down what is brought. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. yellow self-stick notes.76 THE PSYCHIATRIST AS EXPERT WITNESS. Each preference has its pros and cons. essential medical records . The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. as are all the substantiating data. When no documents are before you on the stand. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. 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). even for experienced experts. The downside is the need to remember a vast amount of detail and to recall where. the opposing attorney cannot search through them for something with which to impeach your testimony. or your own table of contents devised for more extensive documents. having the whole database on the stand permits greater support of your testimony with specific data from the documents. and ensures the accuracy of your recollection by direct verification. because his or her opinion is being given from memory. The expert should determine which of these two approaches is more suitable. while the experts are testifying. dog-eared pages. in an often extensive chart or deposition. Key documents might include my report and interview notes. The expert appears more confident and knowledgeable about the case. tabs. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. to have on the witness stand the entire stack of documents pertinent to the case or whether they prefer to have nothing on the stand or almost nothing (e. Note again the importance of having and practicing a plan of organization. and 3) you may become lost in excessive data. SECOND EDITION the room looks like from the hot seat). On the other hand. the entire database is usually present at both the attorneys’ tables and therefore is immediately available..
Arrange appropriate coverage so that you do not have to worry about being reached. and you will not go wrong. in the sense that you are usually under observation by someone—the bailiff. 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. ensure that they are turned off. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. eccentricity. It is unclear whether either strategy is superior to the other. affidavits. A handy pen or pencil. what you wear should fit well and be well broken in. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. Avoid either ostentation. the defendant or . and similar data. Do not wear or carry your cellular telephone or beeper. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. or carafe of water is an excellent idea. If I need the actual page or quote. glass. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. if you must. Stick to the conservative business mien. depositions. ornamentation. your mode of dress should convey the fact that you are a professional in the courtroom on business. the bailiff usually will keep it filled. This table of contents enables speedy reference to key facts. Arranging for a cup. I take to the stand a one-page table of contents (i. and check in. the bored juror. during breaks. A cough drop or throat lozenge will moisten your mouth while placing less of a burden on your bladder but may create a speech impediment. For depositions of less central players in the case. I can use my table together with the attorney’s copy of the deposition.e. or if you must. highlighting marker. perhaps comfort should rule. Finally. Above all.. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. Demeanor Being on the stand is not unlike being filmed. testifying is thirst-provoking work. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. showing off how busy you are and how court is taking you away from really important matters. If you are completely uncertain about what to wear to court. do not wear new clothes. Indeed. and cutting-edge high-drama fashion or excessive informality. 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.The Expert in Trial 77 (pruned to relevant periods if needed).
78 THE PSYCHIATRIST AS EXPERT WITNESS. and you are unfailingly polite. Make your point because it matters. demeans you. all such chips are apparent) is particularly unconvincing. and you want the jury to understand it. Such reactions may be misconstrued as disrespectful. sneering. Attorney (with a slight sneer): Isn’t it true. Your identity on the stand is that of teacher. Scholars recommend keeping the front of your body open (by not folding your arms. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. for example) as body language consistent with candor. fluffy. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. such as rolling your eyes at the jury when a particularly fatuous question is asked. attorney moves on to another subject]. or degrades you. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. you know or should know that it is not personal and has nothing to do with you. not of the attorney in question. you win the exchange. A witness with an apparent chip on his or her shoulder (and in court. Doctor. impugns you. flip. If the attorney is hostile. or obtuse to the seriousness of the issue. humor directed against yourself may show that you do not take yourself too seriously. SECOND EDITION plaintiff. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. Even when an attorney attacks you. If you become huffy or outright mad. Doctor?”). Without such alliance. as follows. Avoid personal body attentions (such as scratching) as much as possible. even when someone else is speaking. you are likely to be too involved and therefore possibly biased. and sarcastic. get interested in what you have to say and stay interested. an attorney—at all times. obnoxiously facetious. and stuffy. Beware of “involuntary” gestures. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. not credible. humor may seem disrespectful. With discretion. . it is important. however. 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. Be clear. but of the jury or the entire process. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. There is no reason for a teacher to get mad.
Finally. If you must use. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). In general. concede a remote possibility and move on. or prone to nit-picking. They are not excessively academic. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. the most common beginner’s error in the courtroom is the inability to “throw it away. . evasive. Direct your extended remarks to the jury. avoid discussing unconscious dynamics unless absolutely needed for your point. If in any doubt about your speech volume.. good teachers are lively and interesting. explain. not just a classroom exercise. If a microphone is available.” but only a few things reach reasonable medical certainty). the trial is a human process. what fools these jargonists be). a juror who cannot hear may be hesitant about saying so in open court. but without intimidating staring.e. and “waffley. ask if you can be heard by the farthest ranks of jurors. Keep in mind the expert’s role in telling the story in a coherent. they are usually poorly received by juries. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. Speak to the most distant juror to be sure your voice is audible. As occurs during the depositions noted in the previous chapter. as a result of your careful and thoughtful preparation with your attorney. or waxing argumentative rather than instructive. Haggling with the attorney over a tiny abstruse point. even inhibited souls will nod if they can hear. to accept a possibility as such (almost anything is “possible. Although you are a teacher. Testimony Direct testimony should unfold in an organized manner. understandable manner that brings the details together in a recognizable gestalt. to agree that some things happen sometimes. not stuffy. the concept is sometimes rendered mathematically as a 51% certainty. yet may ultimately give up on your testimony after straining to hear for too long. project. making roving eye contact with various jurors whenever possible. blunts your argument and weakens your credibility.The Expert in Trial 79 Being fluffy means being too abstract. pedantic. or respond to jargon. If no microphone is provided. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. and to admit that rules have exceptions.” that is. It is not the same as “certainty” (100% sure). Because jurisdictions differ as to the precise definition. theoretical. to concede a point that really doesn’t mean much.” Make your point as concretely as necessary and back it up with hard data from the database. jargon laden.
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
Respect the juror. 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. “I don’t care to waste my time on this whore. 83 Although this mode of explanation may seem cumbersome. just like putting your hand over the vacuum nozzle. The expert is on direct examination by his own retaining attorney.” but this appreciation is lost if the jury cannot understand or follow your description. The jury hears the testimony twice—an aid to both memory and persuasion. any testimony from this witness would be bought and meaningless. Consider practicing such a description with your attorney or colleagues or friends. depressed— um—and seeking help. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. some scholars assert. the jury usually appreciates being given the “inside story. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. the dirt stays on the floor. Adventures in Cross-Examination For experienced experts. In the same way. The hazards of lack of practice are revealed by this following segment from an actual murder trial. may record every pause. it is numbing to a jury. I have been impressed by their ability to grasp what is at issue.” Realistically. the best cross-examination is. and slavishly but perfectly appropriately. Over the years. That is how this kind of antidepressant or mood elevator works. As you can grasp by merely reading this response aloud. if you do that. “I have no questions for this witness. grunt.The Expert in Trial (draw a barrier) this process.” preferably said in a mildly contemptuous tone. such an avoidance of cross-examination is sound trial strategy. Recall that this is direct examination by his own retaining attorney. even if the technical details are lost in the shuffle. This is a powerful argument for at least organizing your thoughts before you begin to testify. the chemicals stay in the spark gap and keep working so that your mood is lifted. stutter. . do not underestimate juries. Um—as the events became closer to the—um—incident itself [the murder]. and throat clear that you emit on the stand. as if to convey.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. What will cross-examination be like? What is the jury to make of this apparent hesitancy and doubt? Remember also that—as is clearly seen in that excerpt—the court reporter is entitled to. and the expert has theoretically prepared to tell the story in a coherent manner.
questions beginning “Is it possible.84 THE PSYCHIATRIST AS EXPERT WITNESS. however. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one.” . The following are some examples of the last (all are leading questions. can they not?” • “Another expert might come to a different conclusion. equivocating hurts you. the attorney’s wish or need to have the client see the attorney doing something. never ask a question to which you do not already know the answer. 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. but in this instance it is not. deposition. no problem. what you say is often true in other cases. surprisingly. such as the previously listed leading questions. “that’s generally true” and you may be too flustered to challenge the action..e. The second fundamental principle of expert cross-examination is keep the expert on a tight rein.. ask only questions to which only one answer is possible (fittingly. attorneys do not perform this simple but effective maneuver. “Although the present case is a clear exception to that rule. interrogatory. the attorney asks closed questions. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. or the answer may be obvious from the question (i. not always) aware of two fundamental principles that should guide this activity. or alternatively. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). The attorney may know the answer to a particular question from the expert’s report. If you want to say. which may be asked on cross. the question answers itself ). or publications. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. Instead. and even the attorney’s competitive feelings directed toward the expert. First. The tight rein on which you are held may make it difficult to get your opinion out there.” the attorney may move on to the next question after you have said. It is better to say. SECOND EDITION Most often. the attorney’s competitive strivings with the opposing attorney or firm.. Even those attorneys who opt to engage in cross-examination are usually (but.” are almost always answered yes on the theory that almost anything is possible). “That’s generally true. Throw it away. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony.”) or exhibitionism (“Watch me shine!”). Doctor?” The only possible truthful answer to all the aforementioned questions is yes.
if not. At times. to consider your answer carefully. and a mere yes or no may fail to convey the “whole truth.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). Quotes On cross-examination.” The break gives you ample time to think. or have you dozed off? It is best to state. If either will do so. say it. if needed. and to allow your attorney to object. 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.The Expert in Trial 85 The Tyranny of Yes or No You will be on the shortest rein when the attorney uses the most closed format of questioning—the one where the opposing attorney demands that you answer only yes or no. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words.” “no. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. Scholars liken agreeing to this either-or approach to signing a blank check. You took an oath to tell the whole truth. At such moments. this type of questioning means that you have only three answers available: “yes. to be sure you are clear about the question. Practically. some sources suggest answering at the outset. “I’m going to take a moment to think about that. Doctor. We’ll reconvene in 15 minutes. 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.” and do so. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. some attorneys advise not discussing your testimony.” This response may be foreclosed by the judge directing you to answer anyway. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . and think seriously about whether yes or no will represent the whole truth. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. Always ask to see the context if you do not immediately and completely recall it. a question will require more time for prolonged thought or searching of your memory. we are going to take our midmorning break right now. Breaks During breaks that occur in the middle of cross-examination. consequently.” Listen with intense attention to the question. The key word is truthfully. a judge may even decide to declare a recess: “While you are thinking. the attorney may quote something that you wrote or lectured on.
others find telephone calls distracting and let whoever is covering for them handle things. in the trunk of your car. your opinion. could change with complete validity based on some new fact that you hear for the first time during the trial. The thrust of this line of questioning is to convey that your opinion is premature. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. you would have been obligated to so inform your attorney. 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. The Final Opinion During the course of expert consultation. as a “preliminary” report. An aid to this conceptualization is to label your first report. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. but let’s assume it did not).86 THE PSYCHIATRIST AS EXPERT WITNESS. or inadequately grounded in data. you have confused loyalty to your attorney with the oath to tell the truth. Use your own judgment and knowledge of your biorhythms. Some experts want to call their offices during breaks. such as the discovery that you have left a key document in your suitcase across the courtroom or. I recommend avoiding eating heavily. Crises Various crises may strike while you are on the stand. because it is based on data. Subsequent communications may be labeled supplementary reports to keep the sequence clear. had it changed your opinion. In theory. the one that counts. you may have written a report after reviewing some quantity of material. you may have been deposed. . These include biological and physiological crises or circumstantial ones. Your final opinion. even worse. and some additional material may have come your way just before the trial (which. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. Now you must testify on the witness stand. Later. For the lunch break. incomplete. is your actual trial testimony. 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. if requested. SECOND EDITION sions with your own personal lawyer are protected). This change is as it should be.
at odds with your objectivity. The End of the Affair Finally. and go. On occasion as I have left the courtroom. by needing to go to the bathroom. This behavior conveys too much interest in the outcome for someone who is not a party to the case. and sit more upright to relieve tension. it invariably conveys the strong suggestion of partisanship. If you do shake hands. stretch your limbs behind the screen of the stand. 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. “You (or the witness) may step down” or “Thank you. one of the parties or even one of the attorneys reaches out to shake my hand. While this is a common and respectful courtesy. Do not hang around to hear what other witnesses say. it is preferable just to hang in there. Your Honor. No one knows the effect of these gestures. Doctor. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. nod politely to the jury. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. childish. that’s all. Forensic etiquette requires that you just leave. to see the outcome. for example. Your job as expert is important to the case. More troublingly. Some more extroverted experts thank the jury out loud. as always. conservativeness is probably better (the discreet nod rather than the glad-hand wave). or weak. Ask the judge if you may take a brief break for personal reasons. sickly. fans!”). Do not be inhibited by fears that. wave at the jury box (“So long. “Thank you. it poses a dilemma of a no-win situation. you will appear inept. or emit other social behaviors. get down from the stand.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. Deal with the problem and then continue with your task with restored focus. Focus on slow. The judge dismisses you by saying.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). measured breathing. entitled. you seem to be acknowledged . or to learn of other subsequent activity. you exit. and serious distractions impair your work.” At this point you say. What do you care what happens? You only testify under oath. The judge will almost always grant this. and both grudgingly acknowledge that neither has any more questions for you. when you are through. If a delaying tactic is not used.
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. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. if you do not or you ignore the outstretched hand. the best teacher. Forces beyond your control and outside your testimony—such as the demographics of juror selection. by letter or telephone. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. while acknowledging that experience is still. Gutheil TG. 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. References 1. It is perfectly appropriate after some time has passed to call and ask the outcome. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. “juror countertransference” toward the attorneys. For your personal development as an expert. Because this brief volume can serve only as an introduction. however. If you have traveled far with a heavy load of database materials. 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. this task is for the lawyers. you seem rude. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach.88 THE PSYCHIATRIST AS EXPERT WITNESS. as much as possible about what happened and why it happened. SECOND EDITION for good (but partisan) work. 2000 . always seek feedback and reactions to your participation. some forget. Finally. Surprisingly. and the like—impinge on trial outcome. J Psychiatry Law 28:235–251. Most courteous attorneys will inform you later. Take only your report. A far more detailed analysis of testimony can be found elsewhere (5). as always.
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
with a deposition for a third case. a forensic interview. of course. The tension here is that some courts. he or she will be exerting the greatest efforts to make it all work out. In extreme circumstances. add another layer of challenge. As a rule of thumb. If a trial and a deposition are scheduled for the same time. maybe 2. but things happen. You can count on your eyeballs the number of times this clockwork model actu- .” in this volume). The second priority is depositions.. I can’t imagine my direct examination taking more than an hour. You’ll be out of there by lunchtime. cancellation) is as follows.” Smile politely when you hear these words but make expansive plans. requiring two parties to match schedules. flexible. Because your attorney has the most interest in your presence. so let’s put you on first at 9:00 A .. tops. with suitable preparation of the jury. The last two priorities are interview and report. and accommodating. I know you have a busy schedule. You must do the best you can with what you’ve got. negotiation. and telephone calls to resolve them. the hierarchy of urgency and therefore attempted postponement (or at worst.e. This type of schedule is close to reality. You’ll probably be cross-examined for 1. for example: “Doctor. although obviously fewer persons and a shorter time frame are involved than are for trial. Travel glitches (discussed in Chapter 10. but during the very week that you have scheduled four weddings and a funeral.M. Because your reports can be done at any time of the day or night. 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. attorneys. An attorney who planned to have you “bat cleanup” (i.92 THE PSYCHIATRIST AS EXPERT WITNESS. and other-side attorneys are reasonable. SECOND EDITION for months without any forensic activity whatsoever. others are not. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. comes before a report. which also require several people to synchronize their schedules. court dockets are crowded and leave little flexibility. the other side may be willing to have your testimony inserted into their side of the case. Trials take first priority. and serious matters hang in the balance. two trials in different states will be called simultaneously. You may have a little room to maneuver in terms of the order in which you testify. hours. Large numbers of people are involved. “The Expert on the Road. sharp. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. theoretically. the trial should take precedence.
The attorneys wrangle over whether some document relevant to the next witness is admissible.M. Although my colleagues and I tried to study this issue formally (2). Washington. partner. In the end. However. negotiation may be possible for some scheduling conflicts but not always. Gutheil TG. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. Occasionally. 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. 2002 Reid WH: Forensic practice: a day in the life. Commons ML: Trading forensic and family commitments. American Psychiatric Publishing.Some Pointers on Expert Witness Practice 93 ally occurs. (More suggestions on scheduling are included in Chapter 10 in this volume. 2006 . The subject may represent some kind of taboo because it is rarely discussed. J Psychiatr Pract 12:50–54. Thus. The jury takes a long midmorning break. and family. 1996 Suggested Readings Gutheil TG. the odd juror gets stuck in traffic. The judge assigns a long lunch and hears another few motions just afterward. J Am Acad Psychiatry Law 32:356–358. References 1. some are not. DC. 2. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 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. 2004 Kearney AJ. difficult choices may have to be made.) 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. Why? Although some judges are scrupulously punctual. it is not uncommon for an out-by-noon case to extend into the next day. Gutheil TG: “Paraforensic” aspects of expert witness practice. Bull Am Acad Psychiatry Law 24:533–546. a judge will treat the time between 9:00 and 9:30 A . no clear conclusions can be drawn.” In addition.
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In all such cases. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. an attorney. a description of an independent medical examination for a personal injury suit. a court. allowing careful legal analysis and reflection on whether you will be helpful on the case. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. a defendant’s criminal responsibility. for a worker’s compensation claim. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. attention to the preparation of the written document results in a product that assists the legal system in its efforts and goals and validates your contribution to the process. or a physician’s deviation from the standard of care. or a full evaluation of a person’s competence to stand trial. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. I focus on writing the full-fledged forensic report. or for a disability determination. to serve as a witness. In this chapter. or to serve on a jury.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. In The Psychiatrist in Court: A Survival Guide. some basic principles on letter writing to the court are described and are not repeated in this chapter. 95 .
which in that jurisdiction is discoverable by the other side. For similar reasons. Critical documents should be briefly summarized within the report. “Reports should be self-sufficient. Obviously. 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. According to Dr. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. Resnick. Resnick also identifies the “four principles of good writing”: clarity. These are all powerful arguments for careful thought. has generously and graciously granted me permission to cite some of his advice on report writing. detailed report. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. and 3) the full. I emphasize the third form. It should be just long enough to cover the essential information but not so long as to exhaust the reader. In this chapter. M. In other situations.” Dr.D. which states all of your conclusions and the analysis of all the relevant substantiating data. and meticulous proofing and review of any report you produce. Without referring to other documents. Resnick.96 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION Alternatively. General Remarks The report as a whole should meet certain criteria. . It should stand alone. which presents your database and conclusions only. It should contain everything that you need to support your opinion and no irrelevant material. of course): 1) no report. brevity. the reader should be able to understand how the opinion was reached from the data in the report.. painstaking preparation. the attorney may ask that you not furnish a report. without detailed discussion of the bases or reasoning behind those conclusions. then. may take three major forms (with variations possible. and humanity. simplicity. 2) a summary report. for which I am most grateful (where I cite his material. Despite these useful functions. Forensic report writing. I refer to him explicitly in the text). Consequently. the report may present materials or approaches that the attorney does not wish to share with the other side. all should govern the form of the report. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. because the first is self-explanatory and the second is an extract of the third. Phillip J.
” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). One way is to provide the case citation or caption in whole or in brief (e. I examined (name of examinee) with regard to (forensic issue). Resnick is included at the end of this chapter. 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).g. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . emotional injury or psychiatric malpractice). and depositions. Identifying data can be presented in a number of ways. or the type of case in a civil matter (e. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. sometimes called the referral.. of the report should address the question of why you are writing this report. . the case or docket number if known. use a standard business letter format. additions.. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. the charges in a criminal case. police reports.” Some attorneys.. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. otherwise. In that case. reasoning that the occasion is obvious from context.. that is. One model by Dr. Include any interviews per- . Jones et al. or State v.” The Database After identifying the occasion.g. think of your report as a memorandum and use a standardized format.. John Johnson). The heading should also include your letterhead and the date of the report.” and subsequent contributions.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report....” • “I examined Ms. or emendations should be titled “Supplementary Report. The Occasion The occasion. legal pleadings. Smith v.
all medical reports. it is my professional opinion. Although each group has a rationale. Note the wording. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. all depositions).98 THE PSYCHIATRIST AS EXPERT WITNESS. A typical conclusion in a malpractice case. or according to some natural. The documents may be listed alphabetically. in the treatment of (plaintiff ). chronologically. for example.. or other) is free to stop there and make decisions about future directions in which the process should go. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. First. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . the overall basis is described as both the database (all the material reviewed in the case. The remainder of the report is thus treated as optional reading. you are free to choose your favorite. no convincing case has been made for the inherent superiority of either approach. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). (or. 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. logical grouping (e. held to a reasonable degree of medical certainty.. that. 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. including interview data) and your total clinical background of training (what you were taught) and expe- . . attorney. and so on. It is important to couch your conclusion in the explicit jurisdictionspecific language defined in case law or statute (your lawyer should inform you what this is) and to state it according to the standard of reasonable medical certainty (or its local variant) to render your report material and admissible. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. about the disposition. 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. SECOND EDITION formed and their date and length.g.
a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. Finally.” Multiple Realities In civil cases. The reader should not have to use his/her own inferences to understand the point.e. As Dr. Dr. effectiveness. standardized legal language). although representing the core of your opinion. offer alternative opinions. this section should contain extracts of previous material directly supporting the points you are making. you can present the supporting material in several ways. Second.. “Reasons supporting opinions should be clearly and fully stated. 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). It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. malpractice. is essentially boilerplate (i. In these cases. If your conclusion is stated at the outset. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. Your 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. Resnick explains. sometimes frankly contradictory. usually. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. sometimes different spins on the truth. be it competence. your conclusions should be presented in . it is predictable that plaintiff and defendant tell different stories. If your conclusion comes at the end of the report. Third. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. the defendant usually has admitted the act for which he or she is charged. and credibility as an expert witness. Supporting Data After the conclusion. Remember that the conclusion. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. but occasionally. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. more likely than not). insanity. “If there are two versions of the facts. Resnick states. the expert should scrupulously avoid assuming one side is correct. Dr. or other..e.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).” In every case. In criminal cases involving the insanity defense.
Some requested alterations are fully ethical. money. judge. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. then . Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. 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). Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity.. even if it has been removed from your report for brevity. to alter or misrepresent facts in the database. and deleting. A case example was discussed in Chapter 3 (“First Principles”) of this volume. Limits.. (Remember you must be candid about everything you believe to be true. and shortening the report by aggressive editing. then . which make for a stronger report. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. then .. but generally there is no inherent problem .. These are not weaknesses of the report. and Rebuttals If there have been any constraints of time. Whichever approach you actually take in your written report. Postreport Negotiations After your report is finished and has been sent to the attorney.100 THE PSYCHIATRIST AS EXPERT WITNESS. on the contrary.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data.. Constraints.” This approach prevents your seeming to side with one party in the case. these should be recorded. summarizing. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording.. SECOND EDITION the following form: “If the allegations are true. interview of plaintiff blocked by attorney.if defendant’s version is true. asking for the addition of new material not supplied to you earlier. There is no absolute guideline for this procedure. some are not. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. or to change the substance of your opinions. it would be a weakness not to acknowledge these factors candidly. or agency for which it has been prepared. or data (such as inadmissible material. you may receive requests to alter the report in some ways. A challenging gray zone is negotiating about wording.
Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case.1 1. but it may get you started.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. and effect of emotional injuries—three common problem areas. 12. 7. 16. 8. 3. . 11. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. 6. 15. You also may ask to see a senior colleague’s report under an agreement of confidentiality. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 2. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 14. intensity (likely. The Criminal Report: An Example The following is Dr. 13. Identifying information: Source of referral: Referral issue: Sources of information: Qualifications of the examiner: Statement of nonconfidentiality: Past personal history: Family history: Sexual and marital history: Educational history: Employment history: Military history: Relevant medical history: Drug and alcohol history: Legal history: Psychiatric history: Prior relationship of the defendant to the victim: 1Used with permission. very likely. Be careful about changing wording concerning issues of causation. 5. Resnick’s outline for a typical criminal report. 17. 4. extremely likely). 9. 10.
MA. New York.102 18. report writing and expert testimony. et al (eds): Consultation. Petrilla J. Am J Psychiatry 143:164–169. SEAK. 25. pp 511–528 . 20. Poythress NG. 22. Guilford Press. 1987. Hess AK. pp 577–605 Weiner IB: Writing forensic reports. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. THE PSYCHIATRIST AS EXPERT WITNESS. Falmouth. 21. 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. Wiley. 1986 Melton GB. 19. 3rd Edition. 24. 2007. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 23. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. New York. Edited by Weiner IB. in Handbook of Forensic Psychology.
the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. In the late 1970s.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. and we drafted an announcement.) 103 . and a typeface for our official stationery. We retained an industrial designer to help create a logo (highlighting crimson. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. We will let you know shortly which of our directors will be working with you. such an affiliation would mean that we would be able to say to any attorney who called us. and inefficacies. “Yes! We (or the corporation) will take your case.” The ability to say yes to all comers seemed like a good idea at the time. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. Unfortunately. In this chapter. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. We sent this announcement to every attorney we had ever worked with. heard of. to connote the Harvard connection). embarrassments. a letterhead. (I believe this excluded only admiralty practice and the law of the sea.
inform. is suspect and not reliable as an approach (see also Chapter 4. sharing useful information versus being pushy. Most recipients almost certainly awarded our announcement the coveted circular file disposition. and pride and confidence in your work versus hired gun certainty or grandiosity. The Delicate Balance In all approaches to marketing. for example. thought. an expert’s marketing strategy shifts to generating favorable word of mouth.e. 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. clinicians) led to forensic referrals: word of mouth. and expense resembled our own responses to offers that come in the mail to sell us insurance. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. We received a few form announcements from two or three firms about their offerings. Based on this reasoning. “Types of Typical Cases. list.104 THE PSYCHIATRIST AS EXPERT WITNESS. that is. speak. but the net effect for all this time. commercialized hustling for business—or the appearance thereof. The Key Approach As time went on. and unspecialize. The balance must be struck between dualities such as generating word of mouth versus hucksterism. . Support for this theory came from Harvey Research in 1994. SECOND EDITION All this effort did nothing. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. would you get a straight answer from the attorneys you would want to work for? Strategies Various approaches to building word of mouth are recommended as you develop and market your forensic practice: announce. Ordinary advertising in Lawyers’ Weekly. opportunistic.” in this volume). The result was tantamount to letting a drop of water fall into a large lake.. word of mouth). write. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i.
2) your forensic peer group. and send it to attorneys and clinicians. Among other roles. they will be useful to you in several ways. 3) attorneys. Finally.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). Some experts replace the announcement with a minibrochure: a single. then reporting to the court. or other reasons. or use it in some other appropriate way. the GAL may do a preliminary survey of the psychiatric aspects of a case. they may turn away a case because of a conflict of interest. Opposing attorneys. trifold sheet of fine paper with a brief description of the expert and the services. Thus. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. you may wish to send a short. and 4) judges. Attorneys whom you can inform include your own attorney. If you are moving into a new town. in effect. Describe those services you can authentically offer. Serving as a guardian ad litem (GAL. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. It is unclear whether the brochure is superior to the announcement and may be better utilized as the second item of information sent after an initial communication. including listing services you are not truly expert in. previous associations with the attorneys on the other side. informative. if you have one. Alumni bulletins and class reunions are also opportunities to get the word out. and lawyer neighbors and friends who might pass your name along. First. will see you in action in deposition or trial. . hand it out at a lecture. and factual. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. Although your forensic peers may seem to be your competition. judges may need your services. too little time. of course. the announcement should display the professionalism that you plan to bring to the work. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. they may think of you at that point. polite letter informing local judges of your availability for forensic services. National meetings of professional associations (such as those of the American Psychiatric Association [APA] and American Academy of Psychiatry and the Law [AAPL]) and local chapters of other organizations offer additional opportunities for informing peers about openings in your caseload. If you inform your peer groups about your availability. For your clinical peers. it should be tasteful. Avoid any hype.
many referrals to psychiatrists come from publications. which are often seeking a stable of experts to comment on medicolegal stories of the moment. 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. this skill is acquired. may be helpful in dealing with the media. try to become involved in local media such as call-in shows. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). Write In our computerized modern age. The APA Public Affairs Office provides some guidance in dealing with the media. but the wounds of experience are probably and ultimately the best teacher. or commentary and have it published. departmental conferences.106 THE PSYCHIATRIST AS EXPERT WITNESS. Become active in your district branch legislative committees and processes. In my opinion. review. Instead. such as hospital grand rounds. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. Beat the Press (2). Admittedly. sign up as an entry in an existing lecture series. ambush journalism. Your podium demeanor may convey at least a little about your expected performance on the witness stand. however. and similar humiliations. 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. You will be exposed to attorneys and legislators. and media exposure may open you to crank calls. the topics of which appear on the screens of attorneys’ computer searches. SECOND EDITION List Listings can be effective as well. Although it is useful exposure and a valuable resource to write an analysis. . no one will show. these publications may be explored. both of whom may be potential referral sources. such as clinicians and lawyers. One reference. or established continuing medical education programs. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. Finally.
It may then take you years of work to unblemish your reputation. some critical considerations are the following: 1. Consider taking on some pro bono work as well. integrity must be your watchword. widely publicized mass murders. and other aggrandizing statements that are. based on your fine performance at the deposition.” This is a losing strategy. by definition. In fact. Have the site professionally designed with attention to taste. as it were—but the Web site is perhaps the most explicit. including this one. If you decide to use a Web site. 2. and interest. Be extremely careful about posting your qualifications. skills. some broker organizations guarantee your opinion.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. wherein you follow the ancient maxim. 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. In the same vein. I will work only on high-profile. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. training. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. modesty. place in the profession. trivial cases allow you to be observed in action by potential employers. Conservatively stating your incontrovertible credentials (actual appointments. No case too small. no matter how slight the issue. one turn to the Dark Side of the Force. even at the outset. Begin your career by unspecializing. Beware of making or seeming to make extravagant claims for your knowledge. Even minor. It does not matter if the case is trivial or small potatoes. a point that cannot be overemphasized. You will derive no income. 3. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. From the absolute onset of your career. and your course as hired gun may be marked. Do not bend the truth to satisfy the attorney. but you will obtain valuable exposure. 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. What About Web Sites? In the modern era the use of Web sites has increased for all professions. extremely public.
108 THE PSYCHIATRIST AS EXPERT WITNESS. 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. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. “I can’t take this case (because of time. conflict. Sadoff RL. 2002 2. but its importance cannot be overstated: return telephone calls promptly. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. American Book Business Press. References 1.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). J Psychiatry Law 31:5–19. etc. and effective. you are also revealing yourself as a good first stop on the search for a good expert. Dattilio FM. Building a practice on word of mouth is slow. SECOND EDITION tions. but no other method is as reliable. choose only those experts whom you would be confident to have on your side if you were being sued for something. Additional Pointers The issue may seem trivial. UT. at times trying. including attorneys and fellow clinicians. 2003 Fulton S. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. for referrals. Guyant A: Beat the Press. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. and demanding of patience.” Although you are feeding the competition. sound. Finally. recall the value of brokering. Remember to thank your referral sources. specific required expertise). In analogy with clinical referrals. . but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. but I will take it upon myself to find somebody good who can. Return telephone calls are the easiest marketing device and one of the most effective. publications. You are saying to the calling attorney. Salt Lake City.
Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. Tageh Press. out of Falmouth. CO. WW Norton. 1997 Feder HA: Succeeding as an Expert Witness. Inc. New York. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. I disclose that I have lectured for SEAK numerous times over the years. Glenwood Springs. .. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. Massachusetts.
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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. In this chapter. examinations. or interviews.. and opprobrium. Simon. William Reid.D. I address some tips and strategies for the expert who is inexperienced in traveling to cases. 111 . the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips. As always. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. The author is indebted to Robert I. mockery.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. this chapter will be too obvious and not relevant to your needs.. M. seasoned travelers may skip the chapter entirely. M. and his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter.
to ensure that it still fits. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. Some General Recommendations Travel Information Travel guides are available everywhere. looks professional. especially if you have not worn it for a while. travel agents. For cases that involve land travel. These services can book flights. 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. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. cars. stay overnight in a hotel or similar setting. Try on everything before you pack it. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. especially in flight. the Internet. and general information can be obtained from books. and hotels directly and save you much time and stress on the telephone or online. 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. Still other guides are provided in the suggested readings at the end of this chapter. matches. Another useful reference is Jet Smart (2). testify or interview the next day. polished shoes for men and women). 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. Opt for crushproof fabrics and materials whenever possible. and one pair of shoes. Alternatively. on rare occasion.112 THE PSYCHIATRIST AS EXPERT WITNESS. Consult with significant others for their opinions if needed. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. and return that day or the following one. you must assume significant time delays and be prepared for your time commitment for court appearances to go into a second or even third day. and is in good repair. Running shoes also allow you to sprint through airports to . Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. you may make the appropriate adjustments. and your colleagues. the process takes even longer. the emerging online travel services (Expedia and the like) may prove useful.
It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. massages. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. If you review a different case on the way back. in-room movies.g. 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. is addressed nowhere in the forensic literature). if you are flying to a case and use air travel time to review the case. Until data emerge. do not bill for sleep (you do it anyway). My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. For example. you may bill for that time but not for the ticket because the first case paid the whole trip already. for example. because some law firms are slow to reimburse hotel and plane expenses). Separate business from personal comfort. You have enough to worry about . rare but extremely stressful when they do occur.. Seek equitable division of costs for multiple-case trips. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. and for the regular three meals. but not alcoholic beverages. 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. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. 1 day at your day rate. the literature is relatively unhelpful (the issue of double billing. It is possible. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. Avoid checking baggage if you can. do not bill separately for that work because you are already being paid a day rate. then. a useful principle is to avoid double billing in any form. The Ethics of Billing Bill strictly according to your fee agreement. which are. fortunately. or 2-hour long-distance calls to your paramour. for one or two telephone calls per day to the office to check on things. If the trial runs longer than a day or so. for one telephone call to the family.
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. not to mention the current airline custom of charging extra. and string. do not skimp or economize on the roll-along suitcase. and pack the rest of the gear. antacids. The Kit Whether you call it a travel kit. . Current travel restrictions have shifted the allocation of liquids. remedy. makeup bag. with a little applied topology. and cleaning. and rubber bands. A small. What you take should have similar versatility. these roll-alongs often fit either in the overhead compartment or. and similar medications. the principle of multiple function is one of the basics of a dynamic understanding of mental life. Remember also that your kit should contain items that permit repair. In psychoanalytic theory. 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. stain-remover sticks that do not contain toxic petrochemicals. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. In addition. multifunction “pharmacy” also should be included. a small. which may also be prepacked. Wear your workout or running shoes on the plane. extra shoelaces. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. such as a variety of buttons and threads to match your clothes. even under the seat in some cases. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. eyeglass screwdrivers and replacement screws. but you may wish to experiment with a friend’s suitcase. light flashlight for power outages and searching under beds for lost items. or toiletries case. safety pins in various sizes. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. and extra combs. and creams to quart-size plastic bags. It is definitely a basic principle for assembling your kit. decongestants. lotions. Other useful miscellaneous items include adhesive bandages of various sizes and types. Alternatively.114 THE PSYCHIATRIST AS EXPERT WITNESS. These should include sewing items. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. extra eyeglasses or contacts if you wear them. a small roll of duct tape. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. In general. you may opt to wear the suit or outfit on the plane and guard it in transit. Dopp kit.
often hooked to a travel alarm clock. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. procedures. call the airline early to check on facilities. Drink water steadily to avoid travel dehydration. on very dry flights. Emergency Items Neurotic fears can certainly flower when you travel. because someone else is paying your way to the location. try breathing through a moistened towel for short periods. testify. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. Almost all modern hotels in the United States have smoke detectors. I recommend the hotel or motel for several reasons. Seriously consider avoiding airline food entirely. Second. as well as extra disks and the instruction manual if not on the hard drive already. remember to carry light extension cords and voltage adapters. fails). This item is available through a number of catalogs. or order special low-fat meals. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold.” this discussion will be helpful. I carry a compact “smoke hood.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. in theory. Secrets of Staying If you are unfamiliar with the expert art of “fly in. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. The latter appears at first glance both socially desirable and economical. First. institutional hotel or motel and cadging free lodging with friends or relatives in the area. for you to get out of the toxic smoke and gases to safety. experienced travelers can skip this discussion. but some precautions seem sensible. You breathe through a filter that lasts long enough. The traveling expert is sometimes torn between staying at a cold. and special arrangements. If you have a disability.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. Besides a small flashlight. you are undistracted by social obligations and family strife or background noise. fly out. but you can buy your own compact version. it is more professional to meet with your attorney the night before the . although occasionally.
My first move on entering a hotel room. back up the call with your travel alarm. after I put down my luggage. nausea on the witness stand also may be misinterpreted.116 THE PSYCHIATRIST AS EXPERT WITNESS. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. 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. After the trial. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. and headachy on the stand. Don’t forget to set the room thermostat to your accustomed household temperature. Remoisten it as needed. 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. 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. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. It is probably safest to avoid all alcohol during the trip before testimony. after all. A simple but effective method is to soak a washcloth or hand towel in cold water. of course. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . congested. the air is invariably dry in most hotels. .M. if desired. you are free to visit friends and family at your own discretion. a business trip. this is. hotels provide irons. a situation that can leave you hoarse. an essential part of effective testimony. My second move often is to arrange a do-it-yourself humidification of the room. wring it out thoroughly so that it doesn’t drip. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. SECOND EDITION trial in a hotel room or conference room. Experimenting with culinary exotica is asking for a case of turista at worst. have your martini on the airplane home after it is all over. is to make a beeline to adjust the hotel’s alarm clock or clock radio. Some. obviously you should eat lightly and stick to what is familiar to you. If a paper clip or safety pin does not suspend the cloth or towel well. Whether the room’s air system is heating in winter or cooling in summer. but not all. Secrets of Eating In traveling to court.
some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning.” sleep sound machines. without aftereffects. hot baths. Far better results accrue from sleep hygiene maneuvers. I recommend it. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. usually described in catalogs as “sound soothers.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. and similar relaxants. Catalogs sell portable battery-operated white-noise generators. actual memory loss can occur—the last thing you need.. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. When you are up and awake. as noted. benzodiazepines. When possible. by using either alcohol or sleeping pills (barbiturates. spending some time in direct sunlight may be helpful in adjusting your biologic clock. and with sleeping pills. but all the data are not in. Examples include prescription medications that you need during the course of a long day. stain . Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. This term refers to sounds containing all frequencies. or others) at bedtime. What to Take to Court Courthouses are notably lacking in amenities. 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. of course. breathing techniques. or even a different time zone. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. including hangovers. also eat lightly. or similar terms. These have ill effects. plan your trip to allow time for recovery from jet lag. you can have a serious meal without ill effect. After court. just as white light contains all color wavelengths. Many travelers find it helpful to block out morning sunlight with the drapes. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . so you may have to carry some supplies in your pocket or purse. the chatter of housekeeping staff just outside your door) is white noise. Ordinary AM radio static and the sound of surf are two examples of white noise.M. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. either by closing them completely or fastening gaping fabrics with safety pins.
SECOND EDITION removal.118 THE PSYCHIATRIST AS EXPERT WITNESS.) Savage P: The Safe Travel Book. New York. Slater FE. cough drops. Berkeley. Miller PM: Expert witness billing practices revisited: a pilot study of further data. or throat lozenges. References 1. CA. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. 3. Although some of the pointers in this chapter probably state the obvious. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. 5. and a headache remedy for the obvious problem. Revised. 2003 2. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. Santa Barbara. sample wardrobes and general travel pointers included as well. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references.) St. I welcome your suggestions and favorite travel tips. mints. 4.: Expert witness travel dilemmas: a pilot study of billing practices. J Am Acad Psychiatry Law 29:202– 206. Commons ML. Ten Speed Press. 1994 (An excellent guide to what to take and how to pack it. James E: The Secrets of Simple Packing (VHS videotape). Psychiatric Annals 33:302–306. Berkeley. Villard. Celestial Arts Publishing. Commons ML. Jossey-Bass. 2001 Simon RI.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. WA. 1996 . Magellan’s International. San Francisco. CA. or refreshment. CA. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. J Am Acad Psychiatry Law 26:21–26. with the emphasis on safety and security issues. 1988 (Incredibly detailed. Flying Cloud Publishing. Seattle. 1998 Gutheil TG. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. et al.) Gutheil TG. I hope that these tips make your travel easier and less surprising.
the courts will continue. If I have made too many assumptions about you. which I cowrote with Robert I. including our medical colleagues. (American Psychiatric Publishing 2002). from all evidence. I welcome comments and suggestions from readers to correct. expand. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. or have taken too much for granted about your background and experience in any portion of this text. As always. That book may fill in some of the blanks. consider first reading the companion volume. The Psychiatrist in Court: A Survival Guide.D.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. 119 . decry the expert witness function and voice arguments for its abolition. M. the more we serve this valuable and necessary function. the reader. Simon. effective. The better we are at meeting the courts’ needs with ethical. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). and helpful testimony. if you wish to take your work to the next level. On the other hand. consider reviewing the successor volume to this one. Although some forces in society. to require our services in increasing numbers. or render this text more useful.
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I read it or have the examinee read it at the start of the interview and answer questions.e.. supplied for consideration. and the examinee’s attorney’s attestation that the examinee understands the form (i. 121 . The main points about the form are the use of basic language. is likely to be competent to consent to the interview). clarification that the forensic examination is not the practice of medicine.Appendix 1 Consent Form for Forensic Examination AFTER PROLONGED ambivalence about use of a consent form I have begun to use the form on the following pages.
Gutheil is a physician and a psychiatrist. SECOND EDITION Consent for Forensic Examination by Thomas G. “follow-up. I understand and agree that Dr. Gutheil’s questions.” or “update” interviews of me by Dr. but if I refuse to give an answer or some answers. in connection with my legal case. I understand that Dr. 2. Dr.D. if needed. 3. Gutheil has my permission to talk to people involved in my legal case about the things that he and I discuss and anything he thinks or decides about what we discuss. hurt my case. the following: 1. and I understand that no one can know which one it will be in advance. . the person who has signed at the bottom of this letter. Thomas Gutheil. or out loud in open court in a trial. 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. Dr. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. Gutheil will explain or has explained to me. Because I am being interviewed in a legal matter. and I understand they will be part of the same examination and will follow all the above rules. Gutheil. Gutheil”) I. 4. Gutheil will explain or has explained to me and I understand that Dr. Gutheil. The examination will be one or more personal interviews. nor will he suggest any treatments to me or for me. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. Dr. I also understand that I am not his patient in connection with or because of this interview or interviews. Gutheil will not give me any medical or psychiatric treatment. Gutheil keep secret what I tell him. I agree to give up my rights to have Dr. in spoken depositions (where lawyers ask him questions). I understand. and I understand. Gutheil may write that down for the record. Gutheil’s interview or interviews. I understand and agree that Dr. I agree to be interviewed. Gutheil’s written report or out-loud statements for court may help my case. Dr. This means that Dr. agree to have an examination by Dr. that he is not acting as my physician or psychiatrist in doing this interview or interviews. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. M. I understand and agree to additional repeat. I understand that I can take breaks if I want to at any time during Dr. however. most of which will be very personal. (“Dr.122 THE PSYCHIATRIST AS EXPERT WITNESS. . or have no effect on my case that I can see. Dr. During this interview or interviews I will be asked a number of questions about myself.
a court officer. he/she appears competent to understand it. 20 . that individual is. Attorney for examinee Print name Date day of .Appendix 1: Consent Form for Forensic Examination 123 5. Dr. I certify that I have answered any questions my client asked about the procedure. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. of course. Any report in relation to my case will not go to me but will go directly to my attorney. or the court as provided by law. free to show it to me. Signed. to my assessment. Gutheil’s retaining attorney.
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D. Gutheil”) 1. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. $ for depositions. 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. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. Gutheil shall be reimbursed for all time spent on the case. Dr. M. in addition. Gutheil. (“Dr. the radical revision presented here has evolved from that in the first edition for the same reasons. including portal-to-portal local travel (c). at a rate of $ per hour plus expenses. (d) 125 . rescheduling is at mutual convenience. Standard Letter of Agreement by Thomas G. and $ per hour for trial. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition.Appendix 2 Standard Fee Agreement THE EXAMPLE of a standard fee agreement that follows is annotated by lowercase letters in parentheses (annotations are explained at the end of the text for this agreement).
as an advance against which expenses are billed (p). the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. This agreement may be terminated by either party upon notice and such termination shall relieve each party of any assumed or implied obligations other than payment of any balance due (n). and examinations as discovery rules permit. made out to Dr. please return one copy to Dr. 4. Gutheil’s FID# is . Dr. Failure to comply may void this agreement except for duties of confidentiality (l). Payment in a timely (g) manner. Gutheil by name (h). Signed. 5. A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. (s) Note: Please send all case materials to (address) Date . and as a condition for its specific to this travel is exbeing undertaken. For out-of-state travel. the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. Dr. 3. Before such travel is undertaken. For out-of-state evaluations or testimony. any existing balance shall also have been paid 3 business days before departure (e). Gutheil will be unavailable for testimony in person during the month of August (f ). a retainer of $ pected 3 business days in advance. (q) 6. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). including travel by first-class conveyance and appropriate lodging if needed. The retaining attorney understands that my forensic work is not the practice of medicine. materials. 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). prorated (k). irrespective of case outcome (j) or defaulted appearances.126 THE PSYCHIATRIST AS EXPERT WITNESS. Please note that because of vacation scheduling. SECOND EDITION per day 2. is the sole responsibility of the retaining attorney or insurer (i). Gutheil. Overdue accounts may accrue interest at 6% per annum. Signature below indicates agreement with all (r) these terms.
j. c. the “clock” starts when you leave your home or office for court and stops when you return to office or home.” d. take a videotaped deposition. You have the right to request timely payment to prevent excessive backbalance buildup. This information frees up the attorney to ask for continuance or rescheduling. i. or a member of a corporation or group practice. or trial. To cut through nit-picking. k. will throw up their hands in mock exasperation and say. you may decide to withdraw. Working for the client. “You’re right. f. or even retain another expert. this statement makes the attorney agree to that possibility. that this is a formal contract. You must be free to withdraw from the case if the contract is breached. deposition. Because you will be investing a fair amount in the travel costs. noncontingent. Every agreement must have an exit clause such as this one. m.Appendix 2: Standard Fee Agreement 127 Annotations a. for review. If the retaining party is relentlessly slow. this clause makes that explicit. that does not mean you should not be paid for the work already done. as it ethically should be. Some experts charge differing rates. “portal-to-portal. deposition. thus. “Consideration” and “agreeing” are trigger words that signal to attorneys. b. A case decision that goes against the side retaining you is not grounds for nonpayment. g. can constitute a bias. but what can I do? That client just won’t honor his or her obligations. . If you do withdraw. make that clear so that you don’t waste a lot of time swapping checks between payees. Doc. This is a standard rate of interest on overdue accounts and an incentive for timely payment. n. 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). it saves everyone time and heartache if you spell it out. h. e. You are initially retained as a consultant. For unexplained reasons. others the same. or trial travel. attorneys are sometimes slow to reimburse travel expenses for interview. based on their training. If you are the sole proprietor. Some attorneys. Your fee is. If you know when your vacation is. l. dunned for appropriately earned fees. moreover. I recommend asking for this secondary retainer before travel.” 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.
has handed the case to another attorney. making you ineligible for participation with the other side. .128 THE PSYCHIATRIST AS EXPERT WITNESS. identifies the attorney’s understanding that this is not the case. The retainer is not only a means of establishing the contract but also an actual advance against expenses. if the attorney is out of the country. The wording here. some experts simply submit additional invoices. When this retainer is depleted. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. Such attorneys may pay the retainer. legal. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. r. alas. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. and ethical incompatibilities. 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. You are here agreeing to accept signature from a different attorney or a paralegal. these events do not weaken the contractual ties with the firm. after settling the case. give you no work to do. parallel with the forensic consent form in Appendix 1. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. because you did no work. Moreover. p. s. ask for their retainer back. Making the retainer nonrefundable tends to eliminate such shenanigans. q. On rare occasions. others ask for a second retainer (see also Appendix 3 in this volume). at no cost to the attorney but at lost time and possible income to you. SECOND EDITION o. You have been sandbagged. for example. or has left the firm. and.
LARRY H. Any credit balance remaining will be refunded upon the termination of my services. interviews with family members or other persons.D. This retainer will constitute a credit balance until exhausted. psychiatric interview or evaluation. Thereafter. 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. the hourly 129 . I may require an additional retainer. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. It is understood and agreed that timely payment for my service and expenses will be solely the responsibility of the attorney and is in no way contingent upon the outcome of any litigation or settlement. If travel from my office is necessary to perform any of these services.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. consultation with counsel. STRASBURGER. and report preparation. Psychiatric services may include an initial consultation. if it appears that substantial services are yet to be rendered. M.
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). expert or otherwise. long-distance telephone calls. the retainer discussed above. postage. M. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . setting forth the nature of the services rendered since the prior billing. along with a listing of out-of-pocket expenses. American Board of Psychiatry and Neurology Diplomate. court order. 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. 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. SECOND EDITION rates will apply to portal-to-portal travel time. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify.D. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. photocopying. Nor shall such failure relieve your obligation to have on deposit. Sincerely. literature research. If the foregoing fee basis meets with your approval. including secretarial service. Time spent in preparing for testimony shall be billed at the hourly rate specified above. I will send you a monthly statement. Please keep a copy of this letter for your records. Any excess over the retainer balance is due upon receipt. please so indicate by signing this letter and returning it to me with your check for the retainer. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Strasburger. and all travel expenses will be reimbursed. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. no refund of the retainer deposit will be made. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. prior to my testimony. etc. messenger services. Larry H. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding.130 THE PSYCHIATRIST AS EXPERT WITNESS. as prescribed by statute. Diplomate. court rule.
Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. MA. not just psychiatry. this has many useful tips on trial demeanor and related issues. All. 2003 Babitsky S. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. provide at least some information useful for the psychiatric expert. South Bend. Babitsky S. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them.) Binder RL: Liability for the psychiatric expert witness.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. Falmouth. Am J Psychiatry 159:1819–1825. 2008 Ball D: Theater Tips and Strategies for Jury Trials. SEAK. MA. The Psychiatrist in Court: A Survival Guide. Falmouth. SEAK. 1997 Babitsky S. SEAK. 2002 131 . SEAK. Falmouth. 2002 Babitsky S. MA. These sources are meant to supplement those provided at the ends of the chapters in this book. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. MA. SEAK. IN. SEAK. 1997 (Though aimed at attorneys. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. as well as those found in the companion volume. 2007 Babitsky S. Falmouth. Inevitably. their quality is variable. 2005 Babitsky S. Falmouth. MA. National Institute for Trial Advocacy. MA. Falmouth. Mangraviti JJ: How to Become a Dangerous Expert Witness. however.
Commons ML. 2003 . Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Santa Ana. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. CA.) Gutheil TG. Mulligan WG. McClure Company. 1994 Rabinoff MA. Lippincott. Adams KM. at a more advanced level. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Glenwood Springs. American Psychological Association. MD. James Publishing. Tageh Press.) Gutheil TG. New York. Horsham. 3rd Edition. Covise LL. 1993 Gutheil TG. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. Danvers. Routledge/Taylor & Francis. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 2001 Isele WP: Under Oath: Tips for Testifying. NJ. in Learning Forensic Assessment. 2002 (This is designed as the successor book to the present one. LRP Publications. CO. 1995 Kwartner PP. Analytic Press. Guilford Press. Mechanicsburg. Simon RI. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. Washington. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Hillsdale.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. Oxford University Press. Edited by Jackson R. J Am Acad Psychiatry Law 34:482–491. 2008 Rogers R. Washington. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception.) Dattilio FM. 2007. Williams & Wilkins. New York. useful for checking credentials. Springer. 2006 Feder HA: Succeeding as an Expert Witness.132 THE PSYCHIATRIST AS EXPERT WITNESS. New York. 1993 Dattilio FM. DC. Pennsylvania Bar Institute. 1908 (Purely for antiquarians and those interested in a classic from the last century. 2007 (Focuses specifically on the testimony phase of expert work. 2nd Edition. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. et al: Expert Witnesses: Direct and Cross Examination. DC. New York. PA. PA. American Psychiatric Publishing. pp 565– 588 McHale MJ. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. New York. New York. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. J Am Acad Psychiatry Law 29:313–318. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Baltimore. Wiley Law. LRP Publications. Diamond. MA.
com: A resource-rich site with articles. Washington. Lightfoot.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. Falmouth. http://www. WW Norton. Washington. Harvard Medical School. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. Beth Israel-Deaconess Medical Center. http://pipatl. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. Shuman D: Clinical Manual of Psychiatry and Law. Kochansky J: The Complete Psychiatric Examination (videotape).org: The main Web site for the American Academy of Psychiatry and the Law.reidpsychiatry. Washington. Washington. New York. 2001 . J Am Acad Psychiatry Law 35:346–349. Anderson RM: Mastering Expert Testimony. 1976 Zobel HB.SEAK. Disclosure: This author is a founder. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. Mahwah. American Psychiatric Press. publishing a vast range of information and offering excellent training courses. DC. MA.com: Web site of author’s colleague HJ Bursztajn. New York. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. Wiley. DC. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation.aapl. American Bar Association. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. and links. http://tncrimlaw. the national forensic psychiatric organization. MD. DC. Gutheil TG. articles. and links. with multiple resources. links. 2003 Simon RI. 2004 (Study guide available since 2006.html: Another multiple resource site. 2007 Tsushima WT. DC. VA. http://www.com/forensic/f_psych. 1993 Other Media http://www.) Simon RI. and postings. American Psychiatric Press. A compendium of sources. NJ.com: A host of resources by two top attorneys.org: Web site of the Program in Psychiatry and the Law. Gaynor Publishing. 1997 Younger I: The Art of Cross Examination. 2nd Edition. http://forensic-psych. discussions. Section of Litigation. All experts should join. Erlbaum. American Psychiatric Press. SEAK.
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. Competence is decision-specific and usually based on criteria. it is usually “court-tested. or tradition. In case of ambiguity. Boilerplate Standardized legal language. it has been accepted in actual cases that validate its use. there is no generic “competence.e. two or more lawyers. such as relatives or executors. lab results. consult your retaining attorney. it may consist of records and documents. It is not derived from the facts of the specific case at hand. the plaintiff is the (live) person bringing the suit. the practical and relevant definitions are provided. usually derived from statutes. case law. in the context of discovery. Competence The capacity or ability to deal with a certain task. Thus in a suicide malpractice case. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. Decedent The person related to the case who has died. 135 . interview data. on mainframes) and may be used in attempts to impeach the expert at trial.” Deposition Usually believed to be the actual ceremony.” that is. Instead. Database This author’s term for the totality of material that the expert has reviewed to form the opinion. the criteria for competence to make a will and for competence to stand trial are quite different. legal documents such as depositions and interrogatories. in which the witness. and so on. which will live on in perpetuity (i. that is simply plugged in to the appropriate place. for example. the person who committed suicide is the “plaintiff’s decedent. In reality the actual deposition is the transcript of the deposition.” it is always “competence for what?” The criteria for the different competencies are often distinct.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions.
. disability.” Discovery That early phase of litigation. to visit a nursing home where resides a person whose competence is being challenged) and other duties. challenging the party moving for a particular result. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. but this is the established term. Depositions. interrogatories. The role may include representing an unrepresented party (e. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. in “trial by ambush” jurisdictions this step is skipped. usually exchanged between opposing attorneys to alert them to your projected opinion. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. . in which information is gathered by the attorneys in order to prepare the case. if so.e. or an attorney-psychiatrist team. Finding See “Opinion.g. The GAL may be thought of as a kind of utility infielder for the court. says what the attorney wants said rather than objective truth). Novice experts see this as a misnomer. use of a private investigator to obtain information. The GAL is usually an attorney. the judge(s) and/or jury. the fetus in an abortion decision).g. investigating in the field for the court to determine the situation leading to the proceeding (e. this limitation constrains the data gathering and the conclusions that may be drawn from the database.. “Hired gun” A term.136 THE PSYCHIATRIST AS EXPERT WITNESS. may be used as well. borrowed from western and noir fiction and film. The IME may be resisted by some attorneys. and the like. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. since the goal of the process appears actually to be a decision. and various motions accomplish some of this phase. and other medical contexts not limited to psychiatry.. less ordinary procedures might include covert surveillance of a suspected malingerer. IME (independent medical examination) An important part of the discovery process in malpractice. See also “Trial by ambush. after the civil or criminal matter is set in motion. but a psychiatrist.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. Fact finder Practically speaking. thus decision maker rather than fact finder.
the expert. Opinion The final phase. falling below the standard of care in the care rendered in the instant case. Negligence In a medicolegal context. the “bottom line. when confusion sets in. “Phantom expert” An unethical ploy by some attorneys that invokes the expert’s name and/or reputation as a supposedly retained witness to intimidate or persuade the other side to drop or settle the case. the court makes the finding that defines the outcome of the case.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. the expert can retreat when in doubt about what is going on or where the inquiry is going. the witnesses are to testify in court only with testimony that they can swear to. these are prepared jointly by attorney and expert.” 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. One of the most challenging assessments in all of forensic psychiatry.” In practical terms. 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.” of the expert’s efforts. See also “Standard of care. the whole truth. In a practical sense. the whole truth is often supplanted by “the admissible truth. but without actually retaining. because variations from these answers at trial will be used actively in attempted impeachment. tell the narrow truth. the insanity evaluation is retrospective. Of course. and widely misunderstood by many of those. governed by legal criteria that vary by jurisdiction. sometimes without even informing. The expert offers an opinion derived from the database and training and experience. Like other sources of bias. the oath is a place of safety to which. There are several . promises of much future work if the opinion in the present case is favorable. and nothing but the truth. and let the chips fall where they may. experts should review these carefully for accuracy as to their opinions. The “seduction” may involve flattery. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. Interrogatories A set of formal. In addition. and the like. its influence should be resisted by the expert. disliked by almost all parties in a case as well as the general public. retreat to the oath. elaborate dinners and entertainments.
Pro bono Short for pro bono publico (for the public’s good).” “reasonable medical (or psychological) probability.” Though most attorneys are responsible. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence.” and so on. this term usually refers to service without payment. 2001: “The Phantom Expert. by excluding them from the courtroom. the standard is usually national but may be local—the “locality rule. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. Unlike confidentiality. particularly experts. it varies by jurisdiction but the official statutory language is something like this: “The standard of care is that care delivered by the average competent (prudent) practitioner of the same specialty under like circumstances and according to the practice at the time of the events in question.” which the expert must also know. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. SECOND EDITION variations on this ploy. and the like. The expert should be familiar with the relevant local standard and its definition. hearings. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. the origin of the frequently invoked mantra. to prevent the experts from hearing other testimony. a few find ways not to pay you what they owe.” “51% certainty. . “get the money up front.” “reasonable psychological certainty. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. but they cannot by themselves reform the exploitative personality.138 THE PSYCHIATRIST AS EXPERT WITNESS. which broadly applies to information that should not be shared with others in many contexts. See Gutheil et al. privilege is narrowly construed as applying in legal or quasi-legal contexts only.” An expert testifying about a case must be familiar with the relevant standard. administrative law procedures. Appendix 4. Sequester The separation of witnesses.” in suggested readings. thus an attorney or an expert might perform a relevant duty for free. 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. Several jurisdictional variants include “more likely than not.
Ultimate issue The final outcome of the legal process: negligent. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. accepted as meritorious versus those rejected as invalid. these cases. insane. (See also “Opinion. which involve a victim in addition to the treater and patient. discovery proceedings such as interrogatories. etc. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. not those that come in for review. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. after review.”) . The expert has control only over those accepted or rejected. “Trial by ambush” A description of the rule in some jurisdictions whereby the name and opinion of an expert are not disclosed before the actual trial. a blow that would ordinarily not be expected to cause harm.” or “duty to warn third-party cases.Glossary 139 Stipulate To concede or agree to a challenged issue. and expert disclosures (see “Disclosure”) inform the other side in advance. competent. Turndown rate The ratio of cases that are. Tarasoff v. This rate should be seen as a rough guide. Because the usual duty of clinicians is to the patient alone. usually based on criteria. The image is that of a defendant giving a trivial blow to the head of the plaintiff. 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). Among other goals such as saving time. such as whether a witness should be accepted as an expert for the court. but the plaintiff has a thin or “eggshell” skull and is severely injured. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability.” Jurisdictions vary widely as to the applicability of this principle. but the fact finder renders the finding that embodies the “ultimate issue. not as a valid method of determining one’s standards of acceptance. The expert proffers an opinion. depositions. In the majority of situations. guilty. are sometimes referred to as “third-party cases.” Experts should refrain from stating the ultimate issue in their testimony. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant.
. work product occupies a special category of privilege and is usually not discoverable. 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. SECOND EDITION Voir dire An expression from the French.140 THE PSYCHIATRIST AS EXPERT WITNESS. “The Problem of Evasive Testimony” in Suggested Readings. discursive. evasive testimony designed to avoid answering a question directly or at all. This may apply to certain communications between expert and retaining attorney. Work product A designation of privacy for material that is part of the attorney’s trial strategy. Waffling An expert’s rambling. Chapter 4 (reference 11). in the present context. the purpose is to allow preparation of cross-examination or rebuttal. to say” but more relevantly. There are a number of possible causes. literally “to see. See Gutheil 2007.
100–101 Alternative scenarios. 52. 68 honesty of. 24–29 social relationships with. 49. 16 meeting with before deposition. 30–32 misunderstanding of clinical issues. 26–28. 63 Blackboard illustrations at trial. 4. 59–60 Advances minimum fee. 52. 105–106 loyalty to retaining attorney. 49. 7. xiii. 106 American Psychiatric Association (APA). 62 needed for forensic functioning.” 106 Audiotaped interviews. 121 American Academy of Psychiatry and the Law (AAPL). 78. 100 of expert opinion. apparent. See also Demeanor 141 . 17 problems of loyalty and identification. See Ethics informing of availability as forensic expert. 104 Advocate for truth. 4–5. 9 nonsexual seduction. 68–69 Attire at trial. 60 Addressing judge at end of testimony. 44. 87–88 Admissions. 16–18. 115 Alarm clocks. 4. 45. 116 Alcoholic beverages. 105 Assumptions. 80 Body language. 65 fighting at depositions. 61 retainers. 23–24 Air travel. 105–106 American Board of Forensic Examiners. 18 Billable time. 15 Agency relationship. Dress and appearance Attorneys communication with opposing attorneys. 47–48 depositions. 19 hindsight bias. 37 Alterations ethical. 82–83 Announcement of forensic practice. 16 treater bias. 106 Beepers at trial. 115 airline guides. 70 merit of retaining attorney. 105–106 Analogies and metaphors. 115 meals. 16 work product privilege. 37–38 Ambivalence. 82 of reports. 70 “Attorneys’ Guide to Experts. 32. consulting with retaining attorney during. 112 first class. 35 Background of expert. 4–5. 117 “Alibi” issues. 74. 113 Bipolar disorder. use of. See Clothing. ethical model. 14 Adversarial context. 3–4 Advertising. 82 negotiations with retaining attorney. 74 Accuracy. 25 Beat the Press (Fulton and Guyant). 77 Bias.Index Accessibility airplanes. 115 courtroom. 8.
99. how to handle in written reports. 74 Code language between attorney and expert. 7–8. 70–71. 97 Case review. 40 Child custody cases. See also Video depositions gazing into the lens. xiii. 81 delaying tactics. 65–66 Confidentiality breaches as basis for suit. 4. 28–29 Contingent fees. letters to. 73–79. 118 Counsel. 16. 58–59 avoidance by attorney. or experts. 121–123 Constraints on time. 83 Courtrooms. 82 Clothing packing for travel. 17. 48–49. 39–40 Cellular telephones. 113–115 trial appearance. 47–48 Competence issues. 14 criminal responsibility cases. 33–34 merit of attorney. 24. 100 Consultation services. 30 validity of case. 30–32 “nothing to go on” problem. 135 . 118 Criminal cases capital cases. 82 Child abuse issues. 4 Class action cases. 71 Candor. 137 report. 77 unpacking at hotel. 108 Browbeating by retaining attorneys. example of outline. 86–87 Cross-examination. 77. 34 misunderstood by attorney. 77 Change of opinion. review of. 5. 13–14. 66 Concessions at depositions. 101–102 Crises while testifying at trial. 33–34 threshold question. 62. 65. 25 Conflicting stories from parties in case. 48–49 involving the insanity defense. 86 Borderline personality disorder (BPD). 34 Compound questions at depositions. 81 Communication with opposing attorneys. 38 Conflict of interest. 61 trial. 18–19. 64–65 Cough drops or throat lozenges at trial. legal. 14 Carry-on luggage. 23 Clinical material. 116 Coaching. 32. 33 scheduling. SECOND EDITION Complaint. 30 Causation. 83 breaks and recesses during. 99–100 Consent Form for Forensic Examination. 44 nonconfidentiality warnings. 95 Court reporters. 69 Concentration at depositions.142 THE PSYCHIATRIST AS EXPERT WITNESS. 116–117 metal detectors at. money. 107 Brokering a case when unable to handle it personally. or data. 113–114 Case name or citation in written report. See Attorneys Countertransference. questions about. 85–86 Brokerage organizations for expert witnesses. 85–86 code language between attorney and expert. 82 Breaks and recesses depositions. litigants. 32 Building a practice. 33 The court. 59–60. 103–108 Camera. 29–40 documents. 61. 28 Correction of answers at depositions. 19 Capital criminal cases. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock).
66–67 demeanor of deponent expert. 115 access to courtroom. 69 Direct examination. 58–60 inappropriate questions. 65 correction of answer. 92 Disabled individuals access to airplanes. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 135. over-the-counter. 38 of experts at depositions. 66–67 locking in/limiting expert’s testimony. See also Depositions interrogatories. 75 Decision to take case. 65–66 consulting with retaining attorney during. 62–63 concentration during. 91–92 privileged information. 58–60 goals of opposing attorney. 58–70. 80–82 leading questions. 85 Dangerous examinees. 64–65 later evidence affecting opinion given at deposition. 69–70 videotaping of. questions about. 88 trial preparation. 114 . 34 assessing. 113–115 trial. 59 limits of expertise. 68 final preparation. 59–60. 117 Drugs. 66–67 143 interruptions. 97–98 Daubert challenge. 83–86 “yes” or “no” questions. 63 goals of expert being deposed. 57–72. 64. 66 concessions. 62–63 reviewing. 70 “gerrymandering” clinical data. 61 compound questions or answers. 34. 64–65 curious questions. 59–60 assumptions. 61. 60 malpractice suits. 26 pauses before answering. 77–79 Departure from courtroom. 113 Dress and appearance packing for travel. 85 quotes. 87–88 Depositions. 83 trial. See Records. Reports. Records leaving behind after trial. vast amounts of now stored online. 68 treatises. 8 Double billing. 31 Database. 59 past. See also Interviews. review of. 135. 65 questions and answers. 79–80 restructuring. 64 objections. 4–5. 135. 57–58 nondiscoverable material. 116 Drinking. 84 pauses before answering.Index demeanor during. 5–6. 77 unpacking at hotel. 85 reasons for. 68–69 breaks and recesses during. 47 nonverbal responses. See Privilege Documents. 80–82 of examinees during interviews. See also Confidentiality. 34 stenographers in. 68 fighting by attorneys at. 64 priority. 64 language/word choice. 76–77 written documentation to give listing of. Privilege Discovery. 135 admissions in. 74 Disclosure issues. See Parties in case Demeanor cross-examination. Written documentation Doing no harm. 73 use during trial. 29 Defendant. 64 opinions and their bases. 68 of experts at trial.
78 Eating. 16 turndown rates. 96 Harm. 28.144 THE PSYCHIATRIST AS EXPERT WITNESS. 24 Entrance of judge. xiii–xiv evidence in. 5. 16 marketing a forensic practice. 52–55 History of expert. 47–48 cross-examination. See also Ethics of attorneys. 25 Honest advocate. 1 functions. See Countertransference Forensic practice. 7–8. 2 Forms detailed fee agreement. litigants. 28. issuing. doing none. 62 Hired guns. of sexual misconduct. 125–128 Gestures at trial. sample. 28. for travel. 25 Flashlight. 14–15 Etiquette at trial. or experts. 38 “nothing to go on” problem. 82 nonconfidentiality warnings. sample. scholars in. 25 External consistency of story. 38. 75 Ethics. 51–52 Hindsight bias. deposition and trial. See also Hired guns definition. 49–50 Employment relationship. 67 Expenses. ethical model. 13–14. 115 Flip charts at trial. 37 Eye contact at trial. 129–130 standard fee agreement. 125–128 travel costs. 115 Feedback. See Meals Emotional injury cases. See Air travel Food. 88 Fees. 49–51 examples. 80 Fabrics. 82 Hotels. 113 contact with opposing attorneys. See also Conflict of interest advocate for truth model. 26–28 detailed fee agreement. 28. 15 loyalty to retaining attorney. 44. 103–108 Forensic reports. 36 “False memory” cases. 78 Global requests. 129–130 standard fee agreement. 112–113. 15 remaining neutral. 1–3 Experts honesty of. 67 marketing. 8 Hearsay. 115–116 Humility factor. See also Written documentation Forensics. 107 new facts at trial. 87–88 Evidence. 6 High-profile cases. SECOND EDITION Family or friends. See Meals Forensic countertransference. 112 Failure of retaining attorney to pay fee. 113 Fitness as expert. staying with. 18–19 honest advocate model. 61. importance. 95–96. 28 Fairness. 33 oaths. 9 Humor. See Fees. 61. 44 . 32 Good writing. 15 social relationships with attorneys. 80 Flying. always soliciting. sample. 50–51 interviews. Reimbursement for travel Expert witnesses. 17 special expertise of. sample. 15 Honesty. 15 altering reports. principles of. 100–101 billing. 6. 75–79. principles of. 136 spotting the other side’s. 30–32 of experts. 60 False allegations. 13–21.
97 to the court. 49 demeanor of examinee. 105 Judgment. 35 retention of records. 34–35 plaintiff. 36 presence of attorney. 57–58. 18–19. 138 Marketing a forensic practice.Index Identification with retaining attorney. 105 ethics. 47 elements of malpractice. 116–117 Media coverage and cases. 107 strategies. 119 Materials. suspending. 45 records. pros and cons. for travel. 35 order of. 115 Lawyers. 84 Leaving courtroom. 36 internal consistency of story. 47 standard of care. 34–38 “alibi” issues. 35 priority. 91–92 recording. See Attorneys Leading questions on crossexamination. 45 Lodgings. 35 Involuntary gestures at trial. 107 Interference of attorneys during interviews. 16 Insanity defense in criminal cases. 52 Malpractice suits. 82 Jet Smart (Fairchild). 18 Integrity. level of scrutiny. 95 Likelihood principle. 75 informing of availability as forensic expert. 106 listings. 137 Intervening causes. 43–48 creating timelines for. 38 emotional injury cases. 37 interference. 87–88 dismissal by. 2 entrance. 98 145 Laptops. See Hotels Loyalty to retaining attorney. 107 lecturing. 49–50 external consistency of story. 115 during trial. 49. 51–52 Medical records. 103–108 announcement of practice. 45–46. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 106 Letters to attorneys. review of. 106 Locality rules for standard of care. 137 Insurance challenges. 79. 40 videotaping or recording. 45 Juries. 83 testimony before. 86. 78 Jargon. 106 publishing/writing. 37 alternative scenario. 34 . 79–80 Jurisdiction-specific language. 6–7. 45 locality rules. 75 respect for. 6 entrance of. 86 Malingering. 112 Meals airplane food. 34–35 plausibility of case. importance of. 46–48 social service history. 16. 53. 37. 36 Interrogatories. 39 Interviews. 36 nonconfidentiality warnings. 48–49. 34 depositions. 112 Judges addressing. 36 Internal consistency of story. 37–38 criminal responsibility cases. 87–88 Lecturing as marketing tool. 106 specialization. 38 note taking. 7 Listings as a marketing tool. 99.
29 fees. 47 during interviews. 25 initial contact. See also Confidentiality deposition. 74. 113–115 Parties in case case name or citation in written report. 8 Pens and pencils at trial. 117 Pretrial conferences. 36 Politeness. 26–28 fitness as expert. 85 depositions. 58–60 Opposing expert witnesses. 26 Opposing attorney. not compromising. 49–51 Practice pointers. 66. 104. 97 . 70 Medication issues as basis for suit. 74 Prior testimony by expert. 91–92 Privilege. 50 Preliminary reports. 47–48 plaintiff interviews. 67 National Forensic Center. 13–14. 65. 82 Mitigation of damages. 80 Misunderstanding of clinical issues by attorney. writing for. 115 Preexisting illnesses or conditions. 86 Nonconfidentiality warnings. 24–25 timing and scheduling. 138. 25 bias. 97 Preparation for trial. 118 Metaphors and analogies. 71 Oaths. See Trial preparation Prescription medications. 40. 137 Negotiations with retaining attorney. 35. 45. 52–55 contact with. See also Web sites storage of past depositions. 64 Peer review for testimony. 47–48 Outcome of case. consulting with retaining attorney at. 24 request of retaining attorney. while traveling. 4–5. 100–101 Posttraumatic stress disorder. 114. 24 decision to take case. See Parties in case Plausibility of case. 16–18 clinical and forensic issues. goals of. 49–51 Morality. 25–26 Priorities. 15. questions of. 77 keeping notes. See Emotional injury cases Physicians’ Desk Reference (PDR).146 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION Online. 15 Objections depositions. 82. See also Marketing a forensic practice New facts at trial. 26–28 Networking. 112 Packing for travel. 38 Nonsexual seduction. 44 Melatonin. 97 communication with opposing party. 57–58 Objectivity. 16. 30 Occasions. 82–83 Microphone use at trial. 54. 82 interrogatories. 5. 64 interrogatories. 88 The Packing Book (Gilford). 68 Pauses before answering cross-examination. 14. 39 vulnerability of plaintiff (“thin skull”). 106 Negligence. use of. 17–18. 117 Metal detectors at courthouses. 57–58 trial. 81 Postreport negotiations. 24–29 background of expert. 69 Plaintiff. 91–93 Precautions. 137 Note taking importance of. 137 depositions. unfailing. 77 Personal injury cases. 34–35 Patience. effect of. 65 work product privilege.
54. 138 of witnesses.Index Pro bono work. 131–133 travel books. xiv. 3 Suicide malpractice cases. 51–52 Quoted passages. 33. 18. response to. 113–114. 112 Reports. 44. traveling with. 131–133 travel books. negotiations with. 40 case review. 112 Respect. 48 Sleeping. maintaining appropriate. 7. 68 Storytelling. 34 malpractice cases. 74 Reimbursement for travel.. 82 Silent treatment. obtaining in advance. 53. 100 Recesses. showing toward juries. 25 Required action. See Negotiations with retaining attorney Retention of records. 9. 138 Rebuttals. 38–39. 6–7. importance of. 49 Sequestration. See Breaks and recesses Recorded interviews. nonsexual. 34 retention of. 24 Publications by expert. See also Packing for travel Supplementary reports. 108 written documentation. 40 Returning calls. 99 Surprised expert. 26–28. 107 Standard of care. 138 Standard of proof. 104–106. 40 social service histories. 7. 82. 93 Seating at trial. See Oaths . 83 Retainer. 47 Socratic method. 107. 16 Social service history. 138 Professional meetings. 66 Simon. See also Court reporters in depositions. 28–29 Running shoes. 92. 3. 45–46. 97–98 Supporting data for written reports. 25–26 as marketing tool. 36. suggested. 79 Stenographers. 73–74. 85 Readings. 6 Specialization. level of scrutiny. review of. 14 147 Retaining attorney. 81 Sworn statements. 95–102. 54 Resources for suggested readings. 75–76 Seduction. 112–113 Santayana. 112 Reality-testing. 115 Rental cars. 5–6. 91–93 personal conflicts. 6. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 117 Social relationships with attorneys. 49 database of. 106 Psychiatric malpractice suits. 106 Publicity and cases. George. 15. 46 criminal responsibility cases. 9. 6 Scheduling issues. 70 Skepticism. 35 Records. See also Malpractice suits Suitcases. staying with. 31–32. 47 Referrals. 108 Roles of expert. 43–45. 75 Sexual misconduct cases. 46–48 medical records. power of. 25 Reasonable medical certainty. 79. reasonable medical certainty. 64. review of. 119 Site visits. 97 Rehearsing testimony. See also Written documentation Reputation of expert. 17–18 Self-serving behavior. 113 Relatives. Robert I. 33–34 CATO model for.
74. 35 keeping track of. See also Ethics. 86 cellular telephones. 76–77. 25–26 roles of expert. 73–74 language/word choice. See also Cross-examination prior testimony by expert. questions about. 117–118 testimony. 92. 19. 80 new facts coming to light. 86 pens and pencils. 116–117 microphone use. 73–74 practice sessions. 75–79. 77. 111–118 billing. 77 breaks and recesses during. 74 Teaching role. 117 time planning. 80 pretrial conferences. See Crossexamination demeanor at. 74 rehearsing. 87 . 81–82 priority. 34 for depositions. 112 Traveling. 55. 77 etiquette at. 86. 112 Traumas. effect on standard of care. 8–9 Treatises. 118 crises while testifying. 87–88 dress and appearance. 74 presentation. 112–115 sleeping. or flip chart. 112 Travel expenses. See Meals packing. 77. 74. 82. 86–87 cross-examination. 39–40 Travel books. 45–46 Types of cases. 13. 43–56 criminal responsibility cases. 77 what to bring into court. 64 for interviews. 82. versus expert. 75–76 supplies. 69–70 Treatment recommendations. 80 humor. 78 illustrations. 79–80 timing and scheduling tips. 74 using database during. 112–113 travel information. 60. 115–116 meals. 116 Testimony at trial. 91–92 seating at. 77 courtroom. 61. 78–80 Telephones calls during trial breaks. 113 examinees. 74 pitfalls. 37–38 Trial. effect of. 73–90 beepers/cellular telephones. marker board. 35 flying. 77 pointers. SECOND EDITION cough drops or throat lozenges. 74 planning. 28–29 Third-party cases. 74 Truth telling. 85–86 conclusion of questioning. 82–83 lunch during. 48–49 emotional injury cases. 79–80. 77–79 departure from courtroom.148 THE PSYCHIATRIST AS EXPERT WITNESS. 112 unpacking. 139 Taxicabs. 87–88 eye contact. 85. 76–77 water. 115 lodgings. bringing into. 44. 80 language/word choice. 116 Treater. 80. 77 returning calls. 139 Type of practice expert has. 14–15. Honesty Turning down cases. importance of. 117–118 Trial preparation. 118 Time creating timelines. 8. 49–51 Tarasoff-type cases. 44 Throat lozenges or cough drops at trial. 26–28 travel time. blackboard. 113 Travel service. 51 evaluating. 108 wake-up calls.
79. 115 in courtroom during trial. 97 occasions. 104–105. 97 opinion. 51–52 psychiatric malpractice cases. 82 Values. 97 conclusion. 4–5. example of outline. questions of. 117 Word choice depositions. 67 Video depositions. 77 Web sites. Reports case name or citation. 100–101 preliminary report. 99 . 97–98 headings. 74 Voltaire. 107 Weight to be given to on-site psychiatrist’s observations. See also Records. 100–101 trial preparation. 96 rebuttals. 97 principles of good writing.” 18–19 “Ultimate issue. 140 Written documentation. 74. 43–48 “Ultimate ethical test. 98–99 conflicting stories from parties in case.Index high-profile cases. or data. 70. 98–99 postreport negotiations. 108 Work product privilege. 116 Water during air flights. 140 examples of. 70–71 Videotaped interviews. money. 44 White noise.” 2. 53–54 Wake-up calls. 97 supplementary reports. 97–98 jurisdiction-specific language. 101–102 database listing. 64–65 reports. 100 referrals. 98 letters to attorneys. 100 criminal case. how to handle. 7 Waffling in answers. 97–98 supporting data. 139 Understanding of clinical issues. 99–100 constraints on time. 35 Visual aids. 97 interviews/items reviewed. 82–83 149 Word-of-mouth referrals. misunderstanding by attorney. 95–102.
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