The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10 The Expert on the Road: Some Travel Tips

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

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

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

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

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

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

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

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

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

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

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

is private and confidential. Therefore. the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. or basis. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. . fantasy. The issue here is the tension. with exceptions. including records. the forensic perspective almost always extends beyond the individual examinee. later addressed. Warnings are further discussed in later sections about the interview itself. Most attorneys know not to include details of their trial strategy in letters to you. In contrast. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. it should. 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. reports. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. with some exceptions. defendants. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. convicts. As we will see later. and captured as well in the consent form for forensic examination as Appendix 1. suspects.Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. legal documents. The retaining attorney will guide you in this matter. when in doubt. between the “whole truth” and the “admissible truth” (4). correspondence. be carefully documented. court-related issues are often matters of public record and public exposure (in open court). litigants. of course. lest they be exposed prematurely to the other side. Although therapy usually transpires within the patient’s self-reported data. or impression. your personal attorney can always give you advice on nondiscoverable matters. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. The term also suggests that an expert’s opinion rests on a base. 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. my own or others’ interview notes. One trenchant reason for this approach is to obtain corroboration or discorroboration. and relevant literature.

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

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

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

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

August 2. Depositions. Expert’s Quarterly (Winter): 2. Lippincott. 4th Edition. 2007 Barsky AE. British Medical Journal 337 (#7664).org/guidance/ethical_ guidance/expert_witness_guidance. Testifying and Everything Else You Need to Know. Gould JW: Clinicians in Court: A Guide to Subpoenas. Bull Am Acad Psychiatry Law 20:153–162. 8. New York. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 2002 Bronstein DA: Law for the Expert Witness. Accessed August 5. 2005 2. J Am Acad Psychiatry Law 34:14–21. Baltimore. White MS. Gutheil TG. Williams & Wilkins (Wolters Kluwer). Guilford Press. J Am Acad Psychiatry Law 31:422–427. Am J Psychiatry 154:448–456. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. J Am Acad Psychiatry Law 25:233–247. 6. 1998 Gutheil TG. Hauser MJ. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. 1992 Appelbaum PS. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. “the admissible truth”: an ethics dilemma for expert witnesses. 2003 Strasburger LH. Lewis Publishers. 3. Lippincott. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Simon RI: Narcissistic dimensions of expert witness practice. et al: The “whole truth” vs. FL. Baltimore. New York. American Psychiatric Press. Washington. MD. 1997 Gutheil TG. MD.asp. 5. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. DC. 1997 Gutheil TG. Available at: http://www. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Harv Rev Psychiatry1:4–5. Suggested Readings Ackerman MJ. 2006 Catto G: Acting as an expert witness. J Am Acad Psychiatry Law 33:55–58. Williams & Wilkins.10 THE PSYCHIATRIST AS EXPERT WITNESS. Wiley. 2008. 7. Personal Injury and Other Civil Actions.gmc-uk. 4. 2008 . Boca Raton. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Kane AW: Psychological Experts in Divorce. SECOND EDITION References 1. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness.

J Am Acad Psychiatry Law 30:10–13. 1992 Dietz PE: The forensic psychiatrist of the future. NJ. in The Psychiatrist in the Courtroom. Springer Science+Business Media. American Psychiatric Press. 2001 Quen JM: The psychiatrist as expert witness. 2004 Slovenko R: On the therapist serving as a witness. Psychiatric Services 52:1526–1527. Analytic Press. 1990 Gutheil TG. DC.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. American Psychiatric Press. pp 233–248 Rogers R. Bull Am Acad Psychiatry Law 2:119–132. 3rd Edition. 1994. Gold LH: Textbook of Forensic Psychiatry. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. Bull Am Acad Psychiatry Law 15:217–227. Behavioral Sciences and the Law 7:145–180. Hillsdale. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Int J Law Psychiatry 13:281–307. Washington. Washington. 1989 . DC. 2001 Simon RI. 2005 Simon RI: Psychiatry and Law for Clinicians. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Edited by Quen JM. New York.

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

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

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

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

many expert biases are not detected either by the adversary system or even by the experts themselves. The . an attorney. as a clinician. bias can be exceedingly subtle. you should refer the case. and may add blandishments such as dinners at expensive restaurants and the like. (p. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case. although not common in practice. 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.” Note also that. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. 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. of course. p. for instance. 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. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. In this model the attorney lavishes praise on the expert. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications.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. you are expected to manage your countertransference toward the examinee or the examinee’s actions. 33) However. The challenge for the expert is to distinguish such reasonable and appropriate events from venal attempts at swaying the expert into a favorable opinion in the instant case. this effort may be termed nonsexual seduction. such as overidentification with the judge or the “system. eliminate other subtler biasing factors. If you are a victim of child molestation. Somewhat idealistically. if the countertransference is unmanageable. The fact that the position is more or less neutral does not. of course. 337). Similarly. This neutral position is highly desirable for that reason. The situation does reveal some complexity. you may feel unable to examine objectively a child molester. promises many future retentions. There is no shame in this.

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

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

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

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

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

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

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. I don’t know a great deal about this specific subject. that is. if your aged mother has just died in a nursing home. have you been the defendant in a malpractice suit. For example. no matter how unfounded? Do you have a . This example is fairly obvious. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e.g. Note that your special expertise should exist against a backdrop of your general competence in the field. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. but subtler versions of personal resonance with a case are not uncommon. I recommend hearing about the broad issues of the case first and only then asking for people’s names. the attorney will not have revealed confidential information (the names) to you. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. however baseless? Are you now being investigated by the board of registration for some allegation. which is usually (but not always) clear-cut. as indicated by publication. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. and so on. Your Fitness as an Expert Should you. such cases should be reality-tested for the attorney. “Look. if you cannot or should not take the case. board certification. 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. experience. the hospital. In general. what is the psychiatric aspect of this case? A certain percentage of cases will turn out to be ones in which your role is presumed to be that of human lie detector. 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. personally. Therefore. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. The attorney can then take or leave this arrangement. These issues go beyond mere conflict of interest.First Principles 25 chiatrist actually has some knowledge about. but I am willing to become familiar with the issue”).

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

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

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

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

Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. of course. The attorney presented the case to me by telephone. Scheduling considerations may determine the first task. for that matter. though you would not necessarily know this. Regrettably. 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. There is nothing inherently wrong with this desperation. does the attorney have merit? As a rule. in relation to which. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. On perusing . the emotional pressure of the attorney’s desperation should not alter your objectivity.30 THE PSYCHIATRIST AS EXPERT WITNESS. In reality. you must ask the question. attorneys would call you only for ironclad solid cases in which they have every confidence. compared with some other behavior. or a tendency to want to withhold information. his dangerousness was the crucial issue. the minority are the ones who pose the problems. 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). The point is perhaps an obvious one. the next task is clear. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. In any case. you may be the ninth expert the attorney has consulted. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. For example. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. a tendency to assume you will give the “desired” opinion no matter what the material shows. the attorney may be employing you in a desperate attempt to clutch at some faint hope. 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. a behavior that certainly did not seem all that threatening. However. even in a consultative sense? In the initial telephone call. I recommend listening for indexes of venality. including by obtaining expert consultation. followed by review of the documentation.

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

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

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

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

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

I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. but the following vignettes make the point clearly: For example. If the attorney attempts in any way to cue or coach the examinee. Mobil. a mass tort in Louisiana.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. 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 psychiatrist interviewed plaintiffs with an attorney present. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.Attorney Larry Cohen (personal communication. 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. distortion. 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. be it civil or criminal. .. March. and so on? . (4. and I want to sue him... in the unpublished 1996 case of Lailhengue v. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. p.. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting..36 THE PSYCHIATRIST AS EXPERT WITNESS. The following are four of the principles that I apply as a generic framework for this purpose. behind the examinee). “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.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on.. Do the deviations from standard of care sound hokey. Plausibility The first question to ask of the case. as when the complaint boils down to. warn once.g. 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. 322) To offer a structure for this stage of the inquiry. This subject is addressed extensively elsewhere (3).

about the historic English crime. even if asked to do so or tempted by medical ne- . whereas the arresting officers and other disinterested witnesses describe a calm and rational person just after the crime? Do other parts of the total database present corroboration or discorroboration of the claims. The notion of the alternative scenario can be essential for assessing civil claims. the outcome. such as sexual misconduct. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database.First Principles 37 “Alibi” Issues or External Consistency Is there material from somewhere else that challenges or refutes the claim? Does the defendant claim to have been totally psychotic and out of control. The phone records aided in challenging the claim by providing a time stamp. MGM/UA. 1978). 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. however. She had apparently established these referents by calling the office and receiving no answer. remember not to offer any treatment or treatment recommendations to your examinee. or the alleged damages? For example. 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. the following dialogue occurs between the trial judge and Edward Pierce. or for some criminal claims of insanity. observations. Finally. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. Alternative Scenario In the film The Great Train Robbery (Crichton M. he had made several outgoing calls during the time period of the alleged molestation. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. how might it have occurred alternatively? Is there another way of explaining what happened. in a sexual misconduct claim later proven groundless. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. If the situation did not occur in the manner claimed. she assumed the doctor was not present and could not refute her claim. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls.

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

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

because they would be hard to replace. keep the latter indefinitely. if any. Even if a case seems “over. although it has not yet gained broad enough acceptance to be generally admissible as evidence. then is sexually abused by a treater. Another good rule is to discard. 1994 Gutheil TG. 2. What portion (usually. Further research may reveal other promising approaches (6). If you are discarding case materials. Washington. work by Pittman and Orr (5) on differentiating serial trauma shows promise. Kirby v Ahmad. or 2) return the materials to the retaining agency. References 1. they may serve you to recall the case at a later point for research or publication purposes. SECOND EDITION were of a particular deviation. 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. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. 2002 Gutheil TG: Reflections on coaching by attorneys. two major approaches apply: 1) shred or have a reputable company shred the paperwork. DC. . and what the exacerbations were of preexisting conditions. In addition. or incident. American Psychiatric Publishing. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms.40 THE PSYCHIATRIST AS EXPERT WITNESS. all case materials except your reports. and your interview notes. mistrial claims. 63 Ohio Misc 2d 533 at 534. and then has other symptoms or more of the same symptoms. and so forth that require revisiting the materials. what the results were of subsequent events. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. 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.” there may be subsequent posttrial motions. appeals. with permission. event. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Or. 2003 3.

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

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

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

Types of Typical Cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

if any. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. In both cases. the attorney will likely write the actual prose of the 57 . Under some circumstances. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. 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.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. Note that some jurisdictions practice “trial by ambush” without expert discovery. From the viewpoint of the expert. 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. preparing for what to expect from the various witnesses and documents. there is the period known as discovery.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Simon RI. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. 7. 2005 Suplee DR. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. 1993 Malone DM. Baltimore. Lippincott. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). MA. Falmouth. 39–40. South Bend. J Am Acad Psychiatry Law 31:6–9. 1982 Gutheil TG. WI. 8. SEAK. 2001 Baker TO: Operator’s Manual for a Witness Chair. The Practical Lawyer 33:69– 78. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 5. Gutheil TG. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. 2007 Gutheil TG: Reflections on coaching by attorneys. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 2006 Gutheil TG. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. 6. Falmouth. 1996 2. Milwaukee. MA. 36. Simon RI. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. Defense Counsel Journal 4:174–179. Suggested Readings Babitsky S. Defense Research Institute. Mills MJ: Legal conceptualization. 6th Edition. IN. Vols 1 and 2. 1987 . MD. Bull Am Acad Psychiatry Law 10:17–27. MD. J Am Acad Psychiatry Law 34:18–22. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. Med Econ 82:45–48. 3. 1999 Babitsky S. Current Psychiatry 7: 25–28. Child Abuse Negl 17:571–572. legal fictions. Williams & Wilkins. 4.72 THE PSYCHIATRIST AS EXPERT WITNESS. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 1983 Gutheil TG. 9. Baltimore. The Practical Lawyer 39:55–63. 2003 Kaplan HI. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Willliams & Wilkins. J Am Acad Psychiatry Law 29:313–318. National Institute for Trial Advocacy. SECOND EDITION References 1. SEAK. 2008 Rice B: Malpractice: how to survive a deposition. Woodruff MS: Deposing experts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“You (or the witness) may step down” or “Thank you. and serious distractions impair your work. No one knows the effect of these gestures. On occasion as I have left the courtroom. and both grudgingly acknowledge that neither has any more questions for you. or emit other social behaviors. it invariably conveys the strong suggestion of partisanship.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). entitled. Deal with the problem and then continue with your task with restored focus. sickly. Focus on slow. at odds with your objectivity. that’s all. nod politely to the jury. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. Your job as expert is important to the case. Do not hang around to hear what other witnesses say. one of the parties or even one of the attorneys reaches out to shake my hand. stretch your limbs behind the screen of the stand. when you are through. If you do shake hands. and sit more upright to relieve tension. for example. you exit. Doctor. “Thank you. Do not be inhibited by fears that. it poses a dilemma of a no-win situation.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. fans!”). While this is a common and respectful courtesy. Your Honor. What do you care what happens? You only testify under oath. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. as always. More troublingly. or weak. This behavior conveys too much interest in the outcome for someone who is not a party to the case. wave at the jury box (“So long. If a delaying tactic is not used. Some more extroverted experts thank the jury out loud. get down from the stand. and go. Ask the judge if you may take a brief break for personal reasons. measured breathing. The End of the Affair Finally. Forensic etiquette requires that you just leave. The judge dismisses you by saying. The judge will almost always grant this. by needing to go to the bathroom. childish. it is preferable just to hang in there.” At this point you say. you will appear inept. Do not stop to chat or debrief with the attorney. or to learn of other subsequent activity. to see the outcome. you seem to be acknowledged . Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. conservativeness is probably better (the discreet nod rather than the glad-hand wave). the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor.

you seem rude. Most courteous attorneys will inform you later. by letter or telephone. SECOND EDITION for good (but partisan) work. as always. Surprisingly. always seek feedback and reactions to your participation. Take only your report. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. however. this task is for the lawyers. I recommend instead treating each testimony experience as a kind of continuing education: What did you learn? What questions were you asked that caught you by surprise? Which crafty attorney’s gambits succeeded and which failed during your crossexamination? Did you in fact get to make the points that you believe needed to be made? Did you feel you were clear to the jury? Was there a better way of explaining or describing something other than the way it came out in court? These questions and their thoughtful answers are the true indexes of your success in trial. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. Finally. “juror countertransference” toward the attorneys. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. Forces beyond your control and outside your testimony—such as the demographics of juror selection. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. some forget. For your personal development as an expert. A far more detailed analysis of testimony can be found elsewhere (5). It is perfectly appropriate after some time has passed to call and ask the outcome. while acknowledging that experience is still. J Psychiatry Law 28:235–251. and the like—impinge on trial outcome. Because this brief volume can serve only as an introduction. 2000 . If you have traveled far with a heavy load of database materials. the best teacher. 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. 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. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. as much as possible about what happened and why it happened. References 1. if you do not or you ignore the outstretched hand.88 THE PSYCHIATRIST AS EXPERT WITNESS. Gutheil TG.

The Expert in Trial 2.

89

3. 4.

5.

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

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

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

CHAPTER 7

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

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

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

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

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

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attention to the preparation of the written document results in a product that assists the legal system in its efforts and goals and validates your contribution to the process. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. for a worker’s compensation claim. I focus on writing the full-fledged forensic report. or a physician’s deviation from the standard of care. a description of an independent medical examination for a personal injury suit. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. or a full evaluation of a person’s competence to stand trial.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. In all such cases. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. an attorney. 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. or for a disability determination. a defendant’s criminal responsibility. 95 . a court. allowing careful legal analysis and reflection on whether you will be helpful on the case. In this chapter. or to serve on a jury. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. to serve as a witness.

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

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

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

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

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

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

23. 20. Edited by Weiner IB. New York. 24. New York. Am J Psychiatry 143:164–169. Wiley. 3rd Edition. report writing and expert testimony. pp 577–605 Weiner IB: Writing forensic reports. 19. MA. 22. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. Petrilla J. et al (eds): Consultation. THE PSYCHIATRIST AS EXPERT WITNESS.102 18. 2007. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. 1987. Poythress NG. 1986 Melton GB. in Handbook of Forensic Psychology. 21. 25. Falmouth. Guilford Press. pp 511–528 . Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. Hess AK. 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. SEAK.

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

Support for this theory came from Harvey Research in 1994. The balance must be struck between dualities such as generating word of mouth versus hucksterism. 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. for example. thought. word of mouth). clinicians) led to forensic referrals: word of mouth. list. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. opportunistic.e. commercialized hustling for business—or the appearance thereof. and unspecialize. and pride and confidence in your work versus hired gun certainty or grandiosity. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. “Types of Typical Cases. sharing useful information versus being pushy. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. is suspect and not reliable as an approach (see also Chapter 4.104 THE PSYCHIATRIST AS EXPERT WITNESS.. The Key Approach As time went on. Ordinary advertising in Lawyers’ Weekly. write. that is. . We received a few form announcements from two or three firms about their offerings. inform. The result was tantamount to letting a drop of water fall into a large lake. Most recipients almost certainly awarded our announcement the coveted circular file disposition. and expense resembled our own responses to offers that come in the mail to sell us insurance. 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. Based on this reasoning. SECOND EDITION All this effort did nothing. an expert’s marketing strategy shifts to generating favorable word of mouth. speak. The Delicate Balance In all approaches to marketing. but the net effect for all this time.” in this volume).

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

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

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

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

Tageh Press. Massachusetts. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. out of Falmouth. Inc. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. CO. WW Norton. I disclose that I have lectured for SEAK numerous times over the years.. New York. Glenwood Springs.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. . 1997 Feder HA: Succeeding as an Expert Witness.

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M. As always. William Reid. M. this chapter will be too obvious and not relevant to your needs. and opprobrium.D.. 111 . seasoned travelers may skip the chapter entirely. In this chapter. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. 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. mockery. 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. Simon.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. or interviews. I address some tips and strategies for the expert who is inexperienced in traveling to cases. examinations. and his fellow panelists at the 1995 and 2006 meetings of the American Academy of Psychiatry and the Law for the inspiration for this chapter.D.. The author is indebted to Robert I.

travel agents. These services can book flights. Some experts like to subscribe to an official airline guide for creative problem solving if they are marooned in distant locations because of altered or canceled flights. and general information can be obtained from books. and your colleagues. 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. Try on everything before you pack it. you may make the appropriate adjustments. the Internet. on rare occasion. and hotels directly and save you much time and stress on the telephone or online. looks professional. I recommend The Packing Book (1) as an excellent resource if you always arrive at your travel destination with the wrong clothes in serious disarray and find you have left out several important items. Still other guides are provided in the suggested readings at the end of this chapter. Alternatively. to ensure that it still fits. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. Some General Recommendations Travel Information Travel guides are available everywhere. the process takes even longer. especially if you have not worn it for a while. Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. stay overnight in a hotel or similar setting. Consult with significant others for their opinions if needed. Another useful reference is Jet Smart (2). although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. and one pair of shoes. Running shoes also allow you to sprint through airports to . SECOND EDITION The basic situation I describe is one in which you travel by airplane to the city where the trial (or deposition or interview) is being held. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. polished shoes for men and women). matches. especially in flight. and return that day or the following one. cars. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court.112 THE PSYCHIATRIST AS EXPERT WITNESS. Opt for crushproof fabrics and materials whenever possible. and is in good repair. the emerging online travel services (Expedia and the like) may prove useful. For cases that involve land travel. testify or interview the next day.

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

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

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

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

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

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

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

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121 . clarification that the forensic examination is not the practice of medicine. I read it or have the examinee read it at the start of the interview and answer questions.Appendix 1 Consent Form for Forensic Examination AFTER PROLONGED ambivalence about use of a consent form I have begun to use the form on the following pages.e.. is likely to be competent to consent to the interview). and the examinee’s attorney’s attestation that the examinee understands the form (i. The main points about the form are the use of basic language. supplied for consideration.

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

that individual is. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. 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. of course. he/she appears competent to understand it. to my assessment. Signed. Gutheil’s retaining attorney.Appendix 1: Consent Form for Forensic Examination 123 5. I certify that I have answered any questions my client asked about the procedure. Dr. free to show it to me. a court officer. 20 . Attorney for examinee Print name Date day of .

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

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

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

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

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

If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. court order. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. expert or otherwise. All travel shall be by first-class conveyance. Strasburger. American Board of Psychiatry and Neurology Diplomate. prior to my testimony. 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. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . and all travel expenses will be reimbursed. Larry H. Time spent in preparing for testimony shall be billed at the hourly rate specified above. as prescribed by statute. messenger services. Sincerely. 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. setting forth the nature of the services rendered since the prior billing. along with a listing of out-of-pocket expenses. SECOND EDITION rates will apply to portal-to-portal travel time. court rule. photocopying. the retainer discussed above. including secretarial service. 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). Diplomate. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. please so indicate by signing this letter and returning it to me with your check for the retainer. Any excess over the retainer balance is due upon receipt. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. M. literature research. postage. If the foregoing fee basis meets with your approval. long-distance telephone calls. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. Please keep a copy of this letter for your records.D.130 THE PSYCHIATRIST AS EXPERT WITNESS. Nor shall such failure relieve your obligation to have on deposit. etc. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. I will send you a monthly statement. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony.

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

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

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

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

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

experts should review these carefully for accuracy as to their opinions. when confusion sets in. these are prepared jointly by attorney and expert. sometimes without even informing. the “bottom line. Like other sources of bias. Interrogatories A set of formal. retreat to the oath. promises of much future work if the opinion in the present case is favorable. In addition. The “seduction” may involve flattery. Of course. and nothing but the truth. the expert. One of the most challenging assessments in all of forensic psychiatry. because variations from these answers at trial will be used actively in attempted impeachment. but without actually retaining. the court makes the finding that defines the outcome of the case. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. There are several .” of the expert’s efforts. the insanity evaluation is retrospective. and let the chips fall where they may. governed by legal criteria that vary by jurisdiction. and the like. and widely misunderstood by many of those. See also “Standard of care. tell the narrow truth. the witnesses are to testify in court only with testimony that they can swear to. Opinion The final phase. In a practical sense. The expert offers an opinion derived from the database and training and experience. falling below the standard of care in the care rendered in the instant case. the oath is a place of safety to which. the whole truth is often supplanted by “the admissible truth.Glossary 137 Insanity The legal concept whereby a person who did an otherwise criminal act is yet nonculpable because of criteria-specific impairments caused by mental illness or organicity.” In practical terms. “Phantom expert” An unethical ploy by some attorneys that invokes the expert’s name and/or reputation as a supposedly retained witness to intimidate or persuade the other side to drop or settle the case. the whole truth. Negligence In a medicolegal context. disliked by almost all parties in a case as well as the general public. elaborate dinners and entertainments. the expert can retreat when in doubt about what is going on or where the inquiry is going. its influence should be resisted by the 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. 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.

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

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

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

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

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

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

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

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

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

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

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

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

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