The Psychiatrist as Expert Witness
Second Edition

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

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

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

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

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

3

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

4

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

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

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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

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

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

9

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

10 The Expert on the Road: Some Travel Tips

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1983 Appelbaum PS. Milwaukee. Weinstock R. 2004 Gutheil TG. 6. DC. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. 2001 Miller RD: Professional vs personal ethics: methods for system reform. 36. 2. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. 3.20 THE PSYCHIATRIST AS EXPERT WITNESS. Commons ML. Williams & Wilkins. Miller PM: Withholding. Miller PM. WI. New York. 39 Gutheil TG. Psychiatric Annals 34:260–270. December 2004. 4th Edition. 2001 Slovenko R: Discrediting the expert witness on account of bias. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. 1992 . J Am Acad Psychiatry Law 29:336–339. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Simon RI: Avoiding bias in expert testimony. Martinez R: Forensic Ethics and the Expert Witness. 8. 38. 2002 Candilis PJ. Psychiatric Times. Washington. J Am Acad Psychiatry Law 36:195–200. objectivity and fair compensation. Int J Law Psychiatry 13:249–259. Springer Science & Business Media. Bull Am Acad Psychiatry Law 20:163–177. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. MD. 5. 1992 Lynett E. 1990 Brodsky SL. Baltimore. J Psychiatry Law 28:449–457. 2002 Gutheil TG. Defense Research Institute. J Am Acad Psychiatry Law 32:70–75. Bull Am Acad Psychiatry Law 20:141–152. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Gutheil TG: Expert witness perceptions of bias in experts. pp 33. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. 2004 4. Baker TO: Operator’s Manual for a Witness Chair. Prof Psychol Prac Res 33:307–309. 2008 Katz J: The fallacy of the impartial expert. 2007 Gutheil TG. Gutheil TG: Clinical Handbook of Psychiatry and the Law. SECOND EDITION References 1. 1999 Commons ML. American Psychiatric Publishing. 7. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. J Am Acad Psychiatry Law 27:546–553.

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

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

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

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

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

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

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

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

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

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

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

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

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

and suggestions from the attorney present may contaminate the process. cuing. Inappropriate interruptions and objections. exaggerating symptoms. based on the belief that such an examination can only hurt the case. This decision is legitimate but bears consequences. although this irritates some examinees more than writing during the interview. alternatively. it is certainly beneficial for teaching and for self-review for quality assurance. However. then to examine him or her again to clear up matters raised by the written material. inhibit free-ranging inquiry. If you are unable to prevent the above intrusions. For a number of circumstances. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. 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. to have the interview audiotaped or videotaped. that side’s attorney may refuse to allow you to do so. an audiotape or videotape of an interview may be constructive. Jurisdictional rules may make one or all of these procedures mandatory. more authentic) responses to your inquiries. Verbatim material also can be obtained in this way.First Principles 35 If the witness lives locally. 2. when examining for the opposite side of a case. Not uncommonly. “You wouldn’t let me!. it might be effective and appropriate to examine him or her first. the absence of this datum must be factored into the opinion. Note that when you are retained by the defense and wish to examine the plaintiff. then to read the database. the plaintiff ’s attorney on cross-examination asked whether it was not true that my opinion was reached without “the benefit of my examining the plaintiff. presumably. for some experts.” was appropriately disconcerting. For example. Examinees commonly play up to the audience or recording device. as a rule. The fundamental reasons are as follows: 1. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus.” My immediate response. focusing on making a recording. 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. Examinees who must travel to see you should. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . in one case. unobtrusive note taking probably represents the optimum compromise among choices. 3. but I strongly recommend opposing their occurrence through your attorney. however. be spared this burden.

a mass tort in Louisiana. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. be it civil or criminal.. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. and I want to sue him. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. warn once. “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.g. 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. . SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. a second offense should lead you to terminate the interview and report this interference to your retaining attorney.Attorney Larry Cohen (personal communication. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. and so on? .. (4. Mobil. but wanted them to know that it would not help their case if it came out that they went to the gym to play basketball before they went to the emergency room after their auto accident. as when the complaint boils down to.36 THE PSYCHIATRIST AS EXPERT WITNESS.. 322) To offer a structure for this stage of the inquiry.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. but the following vignettes make the point clearly: For example. behind the examinee).. the parts of which do not refute one another? Did the subject tell the same story to different observers at different times or a varied story? What benign factors might account for this discrepancy? What might this finding imply about possible fabrication. March. Plausibility The first question to ask of the case. This subject is addressed extensively elsewhere (3). Do the deviations from standard of care sound hokey. p.. is whether the case is fundamentally plausible. in the unpublished 1996 case of Lailhengue v. a psychiatrist interviewed plaintiffs with an attorney present. If the attorney attempts in any way to cue or coach the examinee. The following are four of the principles that I apply as a generic framework for this purpose.

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

such as informing the examinee which side has retained you. possibly with reporters present. if not. move on to the substance of your interview. as noted early in this text. And finally. or have no visible effect on your case—only time will tell. Do you have any questions about what I have told you so far? If the person has questions. that is. Other warnings. Her emotions were strong and appropriate to the content. I have been retained by (your side. and you must keep several issues in mind. you are attending to his or her demeanor and its relation to credibility. in a deposition. I am entitled to make note of that. in both civil and criminal cases. compare the consent form in Appendix 1.38 THE PSYCHIATRIST AS EXPERT WITNESS. recall that anyone can really be fooled. and others) as part of your exhaustive review of the database. my testimony may help your case. and treatment offers are inappropriate. unlike what you may be familiar with from other doctors or therapists. or in an open courtroom. you can ask for a break (water. The relationship is not a medical one. defendant. what we talk about here is not confidential because I am not your treater. SECOND EDITION cessity as treatment issues emerge in the interview. As you are interviewing the examinee. there are some things I need to inform you about. and if you do not. hurt your case. the other side of the case. You will be challenged to weave interview data into the totality of the case. Only when I subsequently read her deposition did her entire . but since I can only be useful if I am objective. Second. seem to be called for out of fundamental fairness to your examinee. you will interview the subject (plaintiff. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. you do not have to answer any of my questions. First. although I hope you will do so. Is the patient convincing and plausible? Do the words match the music. 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. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. the court). Third. what you say may come out in a report. restroom) at any time. she had plausible answers for all my questions. answer them as best you can. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. Fitting Together the Interview Commonly. please sit down” but before anything substantive has been said: Before we start. Note the fully intentional structural resemblance of the above paragraph to informed consent.

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

they may serve you to recall the case at a later point for research or publication purposes. then is sexually abused by a treater. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. two major approaches apply: 1) shred or have a reputable company shred the paperwork. 2003 3. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. event. and then has other symptoms or more of the same symptoms. What portion (usually. Kirby v Ahmad. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. J Am Acad Psychiatry Law 31:6–9. work by Pittman and Orr (5) on differentiating serial trauma shows promise. and your interview notes. 1994 Gutheil TG. keep the latter indefinitely. or incident. 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.40 THE PSYCHIATRIST AS EXPERT WITNESS. Further research may reveal other promising approaches (6). or 2) return the materials to the retaining agency. Another good rule is to discard. all case materials except your reports. what the results were of subsequent events. although it has not yet gained broad enough acceptance to be generally admissible as evidence. 63 Ohio Misc 2d 533 at 534. Washington. 2002 Gutheil TG: Reflections on coaching by attorneys. and what the exacerbations were of preexisting conditions. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. mistrial claims. References 1. Or. with permission. SECOND EDITION were of a particular deviation. Even if a case seems “over. if any. . because they would be hard to replace. 2. 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.” there may be subsequent posttrial motions. In addition. American Psychiatric Publishing. If you are discarding case materials. DC. appeals. and so forth that require revisiting the materials.

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

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

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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,

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

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

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

50 THE PSYCHIATRIST AS EXPERT WITNESS. I had to interview him in his home because he claimed to be phobically homebound. Next to the small table where we were sitting. preexisting vulnerability. The response “My attorney told me not to” conveys its own obvious message. For example. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. 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. consider the so-called strip search case in which store employees suspect the plaintiff of shoplifting goods and perform an embarrassing or inappropriately confrontational public search or semi-strip search. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. History. Not only might these provide a context for the injuries claimed.. an answer such as “What is the point? There is no hope for me!” is more problematic (perhaps flowing from a depression) and suggestive of a need for some intervention before the examinee undertakes mitigation. The shopper then may sue the store for harassment and consequent emotional harms. but you might discover on questioning the plaintiff that the extreme subsequent trauma and dysfunction flow from a history of sexual abuse or public exposure and humiliation. however. A question you should ask your interviewee is. as a result of the mugging. and startle responses. avoidance. He claimed to have full-fledged PTSD. Finally. In this situation. The interview took place in his basement recreation room. “What would have to happen for you to go get treatment to mitigate your damage in this area?” A response such as “I would have to find a doctor I liked” is quite reasonable. SECOND EDITION their own accord and some when given this advice by their attorneys. I . Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. especially idiosyncratic history. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. in regard to which the defendants must “take the plaintiffs as they find them”). with intrusive flashback memories. Such a search can be embarrassing and humiliating to anyone. may be relevant. too. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task.e. but they may also be relevant to assessing damages or preexisting conditions. This history may represent the plaintiff ’s “thin skull” (i. you again often encounter the previously described problem of factoring out the effects of serial trauma. only to find that the goods are legitimately accompanied by a receipt.

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

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

Some experts believe that physicians are never wrong and always justify whatever the physicians do. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). it’s a very serious situation.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. one treater-cum-expert in a North Carolina case claimed that the standard of care required a psychiatrist who precipitously terminated treatment with a stalker (but made an appropriate referral and transfer) to embark—despite the psychiatrist’s personal fears—on a series of termination meetings with the stalker. The real issue is: does the standard of care require more. The following is a real-life sample: Examining attorney: Does the standard of care require restraint of this patient? Hired gun witness: When you have a patient who is this out of control and depressed. An even more malignant twist is the made-up or artificial standard.” Many “good ideas” theoretically might have contributed to the patient’s care. the counter to such claims often begins with the phrase “Well. but malpractice litigation hinges on what is required by the standard of care. . Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Waffles are evasive.. in the real world. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. Another variation on this theme is.. The hired gun often advances a perfectionistic standard as though it were the average. “They (the defendants) should have done more. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is.” This testimony is a classic hired gun claim. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. Indeed. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen. the likely explanation is that the treaterexpert made it up to suit his views of this case. but no one lives real life like that.” 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. I personally have never heard of or read that standard anywhere. Anyone always could have done more. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. For example. “If the care had been adequate.

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

American Psychiatric Press. Finally. Baltimore. New York. References 1. Gutheil TG. 3. Gutheil TG. 2008 5. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. 2. 4. Guilford Press. 6. Science 211:453–458. 2002. Williams & Wilkins. I would prefer never to assume malice when incompetence would serve as an alternative scenario. et al: Decision-Making in Psychiatry and Law. note that one cannot. 1983 Bursztajn H. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. In fairness. II: clinical uses of legal standards in the interpretation of subjective data. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. we may be dealing with an incompetence issue. we must consider another possibility regarding the above examples. Kahneman D: The framing of decisions and the psychology of choice. 1975 Tversky A. Int J Law Psychiatry 6:317–329. and that includes they would be safe within or without the community. for better or for worse. 3rd Edition. a trend of such waffling answers in deposition does set off my hired gun detector. 7. 1991 Fischhoff B: Hindsight. foresight: the effect of outcome knowledge on judgment under uncertainty. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. but that doesn’t mean that it’s without supervision. Int J Law Psychiatry 6:331–350. Edited by Simon RI. DC. Conceivably. Brodsky A. which makes sure the patient is safe within a structured environment. J Exp Psychol 1:288–299.Types of Typical Cases 55 The following is part of a response to a request to list deviations from the standard of care in a Tarasoff-type case: It’s a consequential piece of behavior that creates the most essential elements of a treatment plan. Washington. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. with impunity. MD. Bursztajn H. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. Yet. 1981 Gutheil TG. Shuman DW. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. Bursztajn H. . I: malpractice prevention and the use of subjective data.

Bull Am Acad Psychiatry Law 21:23–36. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. psychiatry and the law. Gutheil TG: The problem of evasive testimony: the expert “waffle. Washington. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. 1992 Gutheil TG: A confusion of tongues: competence. J Am Acad Psychiatry Law 34:215–223.56 8. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. 2004 Knoll J. Psychiatr Clin North Am 17:439–446. J Psychiatry Law 28:5–18. SECOND EDITION Gothard S. 1993 . Bull Am Acad Psychiatry Law 20:409–418. American Psychiatric Press. 2005 Simon RI. 1995 9. Psychiatric Services 50:767–773. 1999 Gutheil TG: Fundamentals of medical record documentation. Legal Studies Forum 9:41–53. et al: Detection of malingering in competency to stand trial evaluations.” J Am Acad Psychiatry Law 35:112–117. THE PSYCHIATRIST AS EXPERT WITNESS. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. American Psychiatric Press. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. DC. Washington. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. DC. insanity. 2nd Edition. 2000 10. 1987 11. Law and Human Behavior 19:493– 505. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Psychiatry 1:26–28. Viglion DJ. Meloy JR. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity.

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. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. Note that some jurisdictions practice “trial by ambush” without expert discovery. if any. In both cases.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. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. Under some circumstances. there is the period known as discovery. preparing for what to expect from the various witnesses and documents. Attorneys probe and define the limits of their cases. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. the attorney will likely write the actual prose of the 57 . From the viewpoint of the expert.

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

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

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

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

“The patient gave no sign. his act could . in the following example. I don’t—I wouldn’t agree with you there. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. or you knew and didn’t act. Question: So. If there is the slightest doubt. it is serious. or evidence of a propensity for violence. 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. And the third part of your question is. let me answer all three components. but it is quite risky and may compromise clarity. in order to determine competence. warning. ask that it be broken down. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. Second. 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. which I codirect. A more effective answer might have been. On rare occasions. Question (attorney for staff member): Knowing what we know today. therefore. you can give a useful compound answer to a compound question. so you were negligent. they have to enter into a dialogue with their patient. I am serious. so you were negligent. If the question is compound or complex. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue.] Answer (by case manager): I don’t think I would agree with that. 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. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. to be an appropriate way of determining competence in the clinical situation. yes. no. yes. First. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. it’s your testimony that on [date] you did have a clear understanding of [patient’s] propensity for violence [and therefore are negligent because you did nothing about it]? By imputing to the patient a hindsight-based propensity for the violence only now known to have occurred. the case manager’s lack of understanding might be negligent. ask to hear it again or have it read back.62 THE PSYCHIATRIST AS EXPERT WITNESS. Note. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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81

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appendix 1: Consent Form for Forensic Examination 123 5. he/she appears competent to understand it. free to show it to me. Attorney for examinee Print name Date day of . Signed. Any report in relation to my case will not go to me but will go directly to my attorney. 20 . Dr. a court officer. that individual is. I certify that I have answered any questions my client asked about the procedure. or the court as provided by law. Gutheil’s retaining attorney. to my assessment. of course. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and.

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

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

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

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

This retainer will constitute a credit balance until exhausted. M. and report preparation. It is understood and agreed that timely payment for my service and expenses will be solely the responsibility of the attorney and is in no way contingent upon the outcome of any litigation or settlement.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. Thereafter. review of records. STRASBURGER. psychiatric interview or evaluation. If travel from my office is necessary to perform any of these services. Any credit balance remaining will be refunded upon the termination of my services. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. the hourly 129 . I may require an additional retainer. if it appears that substantial services are yet to be rendered. LARRY H. Psychiatric services may include an initial consultation. 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.D. interviews with family members or other persons. consultation with counsel.

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

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

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

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

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

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

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

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

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

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

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

61. review of. 73–79. questions about. 29–40 documents. 118 Counsel. 28 Correction of answers at depositions. 65–66 Confidentiality breaches as basis for suit. 82 Breaks and recesses depositions. 33–34 merit of attorney. SECOND EDITION Complaint. 85–86 Brokerage organizations for expert witnesses. 48–49. 30 validity of case. See Attorneys Countertransference. 116–117 metal detectors at. 30–32 “nothing to go on” problem. 17. money. 65. 4 Class action cases. 33 The court. 113–115 trial appearance. 61 trial. 118 Criminal cases capital cases. 107 Brokering a case when unable to handle it personally. 34 misunderstood by attorney. See also Video depositions gazing into the lens. 39–40 Cellular telephones. 5. 83 breaks and recesses during. or experts. 59–60. 25 Conflicting stories from parties in case. 86 Borderline personality disorder (BPD). 77 unpacking at hotel. 58–59 avoidance by attorney. letters to. 77 Change of opinion. 116 Coaching. 44 nonconfidentiality warnings. litigants. 4. 108 Browbeating by retaining attorneys. 32. 14 Carry-on luggage. 66 Concessions at depositions. or data. 48–49 involving the insanity defense. 47–48 Competence issues. 16.142 THE PSYCHIATRIST AS EXPERT WITNESS. xiii. 137 report. example of outline. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 14 criminal responsibility cases. 24. 99. 135 . 113–114 Case name or citation in written report. 33 scheduling. 19 Capital criminal cases. 30 Causation. 34 Compound questions at depositions. how to handle in written reports. 28–29 Contingent fees. 77. 82 Clothing packing for travel. 95 Court reporters. 82 Child abuse issues. 23 Clinical material. 40 Child custody cases. 103–108 Camera. 62. 86–87 Cross-examination. 121–123 Constraints on time. 33–34 threshold question. 99–100 Consent Form for Forensic Examination. 64–65 Cough drops or throat lozenges at trial. 101–102 Crises while testifying at trial. 69 Concentration at depositions. 85–86 code language between attorney and expert. 38 Conflict of interest. 97 Case review. 32 Building a practice. 13–14. legal. 81 Communication with opposing attorneys. 81 delaying tactics. 70–71. 18–19. 100 Consultation services. 7–8. 83 Courtrooms. 71 Candor. 74 Code language between attorney and expert.

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

6. 78 Global requests. 112 Failure of retaining attorney to pay fee. 87–88 Evidence. 80 Fabrics. 47–48 cross-examination. 107 new facts at trial. 25 Honest advocate. doing none. See Air travel Food. scholars in. 62 Hired guns. 82 nonconfidentiality warnings. principles of. 136 spotting the other side’s. See also Hired guns definition. 80 Flying. of sexual misconduct. 44 . See Fees. always soliciting. 28. for travel. 115 Flip charts at trial. 100–101 billing. 78 Eating. 103–108 Forensic reports. 5. 113 Fitness as expert. 49–51 examples. 67 Expenses. 15 loyalty to retaining attorney. litigants. 50–51 interviews. 28 Fairness. 36 “False memory” cases. 28. deposition and trial. 18–19 honest advocate model. 38 “nothing to go on” problem. 96 Harm. 113 contact with opposing attorneys. 6 High-profile cases. 32 Good writing. 129–130 standard fee agreement. xiii–xiv evidence in. 115 Feedback. See also Conflict of interest advocate for truth model. 7–8. 60 False allegations. 115–116 Humility factor. 82 Hotels. 75–79. See Countertransference Forensic practice. 15 remaining neutral. 13–14. 17 special expertise of. 24 Entrance of judge. 1 functions. 61. 44.144 THE PSYCHIATRIST AS EXPERT WITNESS. 61. 51–52 Hindsight bias. 25 External consistency of story. 14–15 Etiquette at trial. 16 marketing a forensic practice. sample. 30–32 of experts. 15 altering reports. 52–55 History of expert. 37 Eye contact at trial. sample. importance. 125–128 travel costs. ethical model. or experts. See Meals Emotional injury cases. 112–113. 13–21. 1–3 Experts honesty of. principles of. 129–130 standard fee agreement. 15 social relationships with attorneys. 75 Ethics. Reimbursement for travel Expert witnesses. 33 oaths. See also Ethics of attorneys. 16 turndown rates. staying with. 67 marketing. issuing. 88 Fees. 15 Honesty. SECOND EDITION Family or friends. sample. 26–28 detailed fee agreement. 9 Humor. 38. 28. See Meals Forensic countertransference. 2 Forms detailed fee agreement. sample. 25 Flashlight. 28. 8 Hearsay. 95–96. See also Written documentation Forensics. 49–50 Employment relationship. 125–128 Gestures at trial.

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

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

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

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

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

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