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The Psychiatrist as Expert Witness
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Massachusetts Washington. Gutheil. DC London. Harvard Medical School Boston.D. England .The Psychiatrist as Expert Witness Second Edition Thomas G. M.
specific situations may require a specific therapeutic response not included in this book. Inc. 1000 Wilson Boulevard Arlington. [DNLM: 1. cm. Gutheil. 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. American Psychiatric Publishing. Forensic psychiatry—United States. Books published by American Psychiatric Publishing. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. therapeutic standards may change. c1998. Evidence. p.org Library of Congress Cataloging-in-Publication Data Gutheil. Thomas G. VA 22209-3901 www. and that information concerning drug dosages. paper) 1. The psychiatrist as expert witness / Thomas G. Title.G8 2009 614′. and routes of administration is accurate at the time of publication and consistent with standards set by the U. — 2nd ed. Includes bibliographical references and index. Food and Drug Administration and the general medical community. 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.S. . II. Companion to: The psychiatrist in court / Thomas G. Expert Testimony. however. Inc. Forensic Psychiatry. For these reasons and because human and mechanical errors sometimes occur. Psychiatrist in court. Gutheil. I. Moreover. schedules. ISBN 978-1-58562-342-6 (alk.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. Inc. Gutheil has no competing interests to disclose. Expert—United States. W740 G984pf 2009] KF8965.. As medical research and practice continue to advance. Dr. Copyright © 2009 American Psychiatric Publishing. Thomas G. Gutheil. 2. 2.appi.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.
To Shannon. truly the wind beneath my wings. .To my children and the hope of the future.
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. . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Contents About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . 15 Problems of Loyalty and Identification . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Prime Question . . . . 8 The Humility Factor . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nonsexual Seduction and Other Forms of Bias . . . . . . . . . . 17 The Ultimate Ethical Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Initial Negotiations With the Retaining Attorney . . . . . . . . 24 The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43 Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48 Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49 High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57 Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Some Pointers on Expert Witness Practice . . . . . . . . . . . 91 Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95 The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Developing and Marketing a Forensic Practice . . . . . . 103 The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Suggested Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10 The Expert on the Road: Some Travel Tips
for Testifying Away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Some General Recommendations. . . . . . . . . . . . . . . . . . . . . 112 Secrets of Packing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Secrets of Flying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Staying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Secrets of Eating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Secrets of Sleeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 What to Take to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
11 Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix 1: Consent Form for Forensic Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Appendix 2: Standard Fee Agreement . . . . . . . . . . . . . . 125 Appendix 3: Detailed Fee Agreement . . . . . . . . . . . . . . . 129 Appendix 4: Suggested Readings and Web Sites . . . . . 131 Glossary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
. Gutheil. Harvard Medical School. Clinical Handbook of Psychiatry and the Law. and now in its fourth edition. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry.D. received the Manfred S. he has taught many clinicians about the interfaces between psychiatry and the law. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. he has received local and national writing and teaching awards. is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center.. M. the textbook.D. Appelbaum.About the Author Thomas G. coauthored with Paul S. Through more than 250 publications and many lectures and seminars in national and international fora. Recipient of every major award in the forensic field. 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. and a Distinguished Life Fellow of the American Psychiatric Association. M. xi . Guttmacher Award as the outstanding contribution to forensic psychiatric literature.
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you might consider this book to be next in logical and chronological order to the companion volume in this series. a model forensic consent form for examination. The Psychiatrist in Court: A Survival Guide. an expanded discussion of bias in testimony. it provides tedious stretches of waiting and inactivity. expanded definitions of key concepts. this edition also contains things I wish I had said in the first edition. From another perspective. As an aid to present readers. Moreover. additional illustrative examples. 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. besides the requisite updating of references and suggested readings. that book is a good place to warm up. Such service presents many stresses and equally many satisfactions. xiii . Often the greatest difficulties in this profession occur at the outset. and at the request of past readers of the first edition. other changes in this second edition include: a glossary of useful terms. 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. In addition. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. and cases or principles that I have learned about since the first edition. interspersed with frenzied bursts of action. and many a practitioner feels the urge to try out this fascinating realm. if you feel shaky about the basics. Forensic psychiatry is growing in popularity. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. before experience itself has had the opportunity to provide the most durable and valuable instruction.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. in fact. a number of basic points from that book are covered in early chapters of this second edition for readers who would benefit from such a review.
This new updated edition. concrete advice replaces abstract theorizing. hands-on mentoring and guidance that were not readily available in the past. 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. perhaps— dare I say it—interesting and even fun. whenever possible. you.D. Thomas G. The more seasoned expert may wish to skim over the more familiar material in the text. but choosing to go. Gutheil.xiv THE PSYCHIATRIST AS EXPERT WITNESS. You who are in that position are also my audience. in part because they represent material never covered in other sources. I hope you find this approach useful. Indeed. . Best wishes for success in your burgeoning career as an expert witness. drawing on developments subsequent to its first version. for such readers. kicking and screaming. the novice court goer. SECOND EDITION If your early court experience has not been too traumatic. M. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. and informal discussion in a user-friendly tone replaces scholarly discourse. the later chapters may yet prove useful. attempts to provide some of that practical.
D.Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. and Ms.” James T. Ellen Lewy for absolutely indispensable assistance with the manuscript. Harvard Medical School. Harold Bursztajn. to Drs. Resnick. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. Hilliard. and Shannon Woolley for their careful review and most helpful critique and comments. Larry Strasburger. Esq.. Phillip J. for permission to use some of his material on writing for court. and to Ms. Stephen Behnke.. xv . I especially thank “Dr. Candace Love of On-Point Research for valued assistance in compiling resources. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. M.
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This essentially didactic functioning—more closely resembling teaching than anything else—often requires intellectually bridging the gap between two widely divergent realms of discourse and th ought: psychiatry and law. in contrast the expert is entitled by the role to draw conclusions. More narrowly. the question of what makes an expert witness is more complex. even if those conclusions are based on others’ observations. Indeed. In the courtroom setting. to provide information and understanding relevant to the legal system’s concerns. that is. the question “What makes an expert?” seems to answer itself: expertise makes the expert. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. knowing a lot about a certain topic and having extensive experience therein. the concept of a psychiatric expert witness. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. In this book. both clinical and nonclinical. For example. is a psychiatrist who uses particular skills. clinically defined. an expert witness may review a chart filled with other clinicians’ observations 1 . 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.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert.
then the judge or jury. such as competence or insanity. from ballistics to the temperature of coffee sold at fast-food franchises. Note in regard to the issue of ultimate findings. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. the court system needs expert witnesses in a burgeoning variety of technical fields. the jury is free to accept or reject the expert’s testimony in whole or in part.” You want someone who will present in a way that the jurors would be inclined to say this. about matters that are beyond lay knowledge or decision making. if I had this problem. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. As a rule experts should limit themselves to criteria-driven. What I find bemusing is the fact that. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria.I do not want someone who [merely] teaches others about it. However. jurisdictions and judges within those jurisdictions vary in their permissiveness for experts to touch on the “ultimate issue” in the case: malpractice. I also want someone who has clinical experience and is doing that which he/she is testifying about. and so on.. 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. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. some questions can only be answered by a specialist. Under this model. insanity. I’d want to be treated by this person because he/she makes sense. competence. at times. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context. proclaiming their ultimate faith in the jurors themselves. . or malingering. the expert is to educate the retaining attorney... such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. because what an expert offers is “only” a witness’s opinion. not the ultimate finding that a judge or jury decides. Indeed. incompetent. 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. that is. I believe this person.2 THE PSYCHIATRIST AS EXPERT WITNESS. For that matter.” This issue is discussed further in later sections of this text. are the very same ones who had retained me on a previous case. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. opinionphrased descriptions rather than conclusory statements: “in my opinion. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts.
and the resulting probabilities. 2) make the fact finder want you to win. the emperor is initially resistant to Mozart’s novel music. with Figaro kneeling on stage taking the measurements of his marriage bed. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. 4) help the fact finder see the facts. 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. and the one often most troubling to clinicians. syndromes. consider this scene: In the movie Amadeus. oppositionality. surmounted. and so forth would have accomplished this vital storytelling purpose. and 5) argue the case (1). statistics.Introduction: What Makes an Expert? 3 Another scholar. however. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. are so essential to this work that I review them in the following discussions. . Mozart begins to describe the opening scene of The Marriage of Figaro. (2. he has become engrossed in the story. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. at family functions. 3) make sense out of the law. pp. went even further by listing the functions of the expert as being to 1) tell the story. clinical entities. conflict between the parties. The highly experienced defense attorney who had retained me was heard to mutter at one point. is the adversarial context. and an adversarial atmosphere are problems to be avoided. causation. a law professor. The foremost of these. demographics. The emperor leans forward. Showing pictures of the deceased at communion. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. although basic. The power of storytelling was captured in a movie about the career of Mozart. eyes glowing with interest. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. Most clinical work occurs in the context of the alliance. “Where are the communion pictures?” Pressed for a less cryptic expression. In this chapter. Despite his doubts. In one scene. or resolved or otherwise put to therapeutic use. some points. and throughout this book.
memoranda. In medicolegal work. In other words. both of which reside in every case and every patient or litigant. 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. and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). the adversarial context is one of the “givens” in the situation. whether testifying or consulting. two of the victims of this concept are ambivalence and complexity. the retaining attorney or court). render highly complex the question of agency. because that position confers greater neutrality and protection for your efforts. they are not case-related documents and therefore are protected from disclosure. Like other consultants. you usually do not). but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. the court situation is a zero-sum game: one winner. you usually work for the patient. The usual guiding principle in such determinations is “the best interests of the child. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. must first ask the question. in a forensic setting. I define the term work product to include the notes. The Prime Question Any forensic psychiatrist. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. even if it is a compromise (3). in the forensic setting. and other papers that the attorney generates in the course of litigation. 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. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. Note for completeness that certain forensic contexts. files.e. as well as the usual lack of a physicianpatient relationship (i.. The question of whom you work for also will alert you to major pitfalls of bias. For example. ambivalences may be divided between the two parties in the case rather than felt internally by either. such as child custody evaluations.4 THE PSYCHIATRIST AS EXPERT WITNESS. in the clinical context. Unlike the search for consensus in the clinical setting. Although there may be as many views of the patient as there are team members. you work for the consultee (i. In the legal context. challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you..e. for whom am I working? Your answer will clarify your location within the adversarial framework.” a mandate that may trump other claims on your agency. one loser. This specialized topic is beyond the scope of this book. Com- .
is private and confidential. 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. or basis. my own or others’ interview notes. The retaining attorney will guide you in this matter. convicts. As we will see later. fantasy. the forensic perspective almost always extends beyond the individual examinee. One trenchant reason for this approach is to obtain corroboration or discorroboration. Warnings are further discussed in later sections about the interview itself. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. defendants. Therefore. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. 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. and relevant literature. it should. . court-related issues are often matters of public record and public exposure (in open court).Introduction: What Makes an Expert? 5 munications from the retaining attorney to the expert are generally discoverable. The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. Most attorneys know not to include details of their trial strategy in letters to you. reports. when in doubt. be carefully documented. and captured as well in the consent form for forensic examination as Appendix 1. later addressed. with some exceptions. The issue here is the tension. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. suspects. legal documents. between the “whole truth” and the “admissible truth” (4). litigants. Although therapy usually transpires within the patient’s self-reported data. correspondence. In contrast. The term also suggests that an expert’s opinion rests on a base. or impression. of course. lest they be exposed prematurely to the other side. including records. your personal attorney can always give you advice on nondiscoverable matters. 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. with exceptions.
one is guided by its rules. but the Socratic method is one of the mainstays of courtroom procedure. In practical terms the expert witness. experts in court must play by court rules. Once again. and to maintain an appropriately skeptical posture.. be it moral or monetary. absent clear delusions.6 THE PSYCHIATRIST AS EXPERT WITNESS. This painstaking. do not demand to be heard: answer all the questions and then stand down when dismissed. despite the convoluted. may be forced into limitations on this promise because of countervailing considerations of precedent. and similar signs. and the like (4). hearsay-ridden trail by which it comes to the team’s attention. Yet the court may be driven by principles of fairness. 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. obvious self-contradiction. fundamental fairness. or discorroboration . Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. though under oath to tell the whole truth.. which preclude admission of certain kinds of data or evidence in the name of justice. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. the forensic practitioner is wise to suspect everyone of having some stake in the matter. Because a patient in treatment is willingly coming for help. The Socratic Method Although expert testimony has been compared to teaching. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. corroboration. The witness should be guided by the maxim: when entering the courtroom. 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. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. — George Santayana Unlike the treatment context. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. hearsay. always seeking out verification. prejudice. the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. In contrast. detailed.
This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. for example.g. makes forensic psychiatrists unpopular with their clinical colleagues. ask about the local variant. The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose. All psychiatrists. Reasonable Medical Certainty Doubt is not a very pleasant condition. Rather. high-profile insanity cases. honest experts should avoid these approaches to . As a general rule. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. regardless of its clinical or empirical validity. reasonable medical probability.. 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.Introduction: What Makes an Expert? 7 for all important facts. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. sell time. or even reasonable psychological certainty). to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. Although some will cry that there are exceptions. — 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. forensic work is a sideline to our clinical focus. but certainty is absurd. we are paid by time criteria. Note that there may be some jurisdictional variation on this point. and leads physicians of all specialties observing. For most of us. including forensic psychiatrists. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. Other contextual clues about the hired gun are overly candid advertising in legal media (e. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires.
and ethical incompatibilities with serving as your patient’s expert. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. see reference 5 and the appendix to reference 3). you avoid temptation to skew your opinion. “Developing and Marketing a Forensic Practice. SECOND EDITION finding work. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. because these provide a base of financial stability that enables you to turn down cases.) 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. There are complexities in this area that should be addressed. although the clinician is obligated to place the welfare of the patient above other considerations. First. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. and corroborating data. and you maintain your ethical compass direction. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . case materials. summarized as follows (for more extensive discussion of this point. legal. if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. 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). For various reasons (5–7). reasoning.” in this volume). Thus. it is an excellent way to benefit from the teaching of colleagues and to share ideas. If a clearly meritless case is offered to you for review. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. the prime directive of the legal system is telling the truth regardless of whether it favors the welfare of the patient or severely damages it.8 THE PSYCHIATRIST AS EXPERT WITNESS. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. Often no absolute standard exists by which to measure opinion testimony. there are significant clinical. (By the way.
treaters called into court may violate the confidentiality of the clinical setting. thus leaving the jury free to vote its “gut.” This provocative image should be kept solidly in mind. Master forensic psychiatrist Robert Simon.” Although this last is true in certain respects. Early in my career. whether because of simple ignorance of the above distinctions. though essential for therapy. rather than the entire forensic database. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. in contrast. the wish to avoid paying expert fees that are usually higher than those of treaters. the expert goes in skeptical. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). Indeed. as noted in the section on malingering above.Introduction: What Makes an Expert? 9 the treater gives in court. the therapeutic alliance. .” Even when the expert is the only source of data that the jury receives. even though this may occur appropriately under legal rules. 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. From this viewpoint. Third. 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. Some attorneys report that their only use of experts is to neutralize or cancel out the testimony (or even the mere presence) of the experts on the other side.. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. The Humility Factor Finally. or the belief that the attorney can sell the jury on the idea that “the treater knows this person best. Attorneys seem to display a curious indifference to these incompatibilities. constitutes a bias for forensic functioning. For these and other reasons the treater should resist serving as the expert witness for his or her own patients. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation. the treater has usually had only the patient’s reports on which to rely. M.D. not the engine. Second.
Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Lippincott. 1997 Gutheil TG. 4. Accessed August 5. Hauser MJ. Williams & Wilkins (Wolters Kluwer). Personal Injury and Other Civil Actions. 8. 2005 2. DC. Gutheil TG: Clinical Handbook of Psychiatry and the Law. MD. FL. Simon RI: Narcissistic dimensions of expert witness practice. MD. Gould JW: Clinicians in Court: A Guide to Subpoenas. 2007 Barsky AE.10 THE PSYCHIATRIST AS EXPERT WITNESS. Am J Psychiatry 154:448–456. 1997 Gutheil TG. Williams & Wilkins. Baltimore. Expert’s Quarterly (Winter): 2. Gutheil TG. 7. 2002 Bronstein DA: Law for the Expert Witness. New York. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Wiley. 2008 . 2003 Strasburger LH. Baltimore. 1998 Gutheil TG. Lippincott. J Am Acad Psychiatry Law 25:233–247. White MS. Depositions. J Am Acad Psychiatry Law 33:55–58. Available at: http://www. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. SECOND EDITION References 1.asp.org/guidance/ethical_ guidance/expert_witness_guidance. Bull Am Acad Psychiatry Law 20:153–162. 6. 2008. Boca Raton. British Medical Journal 337 (#7664). Guilford Press. Suggested Readings Ackerman MJ. et al: The “whole truth” vs. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Testifying and Everything Else You Need to Know. 2006 Catto G: Acting as an expert witness. 1992 Appelbaum PS. American Psychiatric Press. New York. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness.gmc-uk. Lewis Publishers. J Am Acad Psychiatry Law 34:14–21. Washington. J Am Acad Psychiatry Law 31:422–427. 5. “the admissible truth”: an ethics dilemma for expert witnesses. 4th Edition. 3. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Kane AW: Psychological Experts in Divorce. August 2. Harv Rev Psychiatry1:4–5.
Washington. in The Psychiatrist in the Courtroom. 1989 . American Psychiatric Press. 2001 Quen JM: The psychiatrist as expert witness. 1994. NJ. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. Bull Am Acad Psychiatry Law 2:119–132. J Am Acad Psychiatry Law 30:10–13. 2001 Simon RI. DC. Psychiatric Services 52:1526–1527. 3rd Edition. pp 233–248 Rogers R. 1992 Dietz PE: The forensic psychiatrist of the future. Gold LH: Textbook of Forensic Psychiatry. Hillsdale. Bull Am Acad Psychiatry Law 15:217–227. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Springer Science+Business Media. Int J Law Psychiatry 13:281–307. 2005 Simon RI: Psychiatry and Law for Clinicians. Washington. Edited by Quen JM. Analytic Press. DC. New York. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. Behavioral Sciences and the Law 7:145–180. American Psychiatric Press. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. 2004 Slovenko R: On the therapist serving as a witness.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. 1990 Gutheil TG.
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” They may forget that this encounter is not therapy. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. First.. examinees being interviewed by a psychiatrist.[Finally] I realized that each witness chair comes equipped with a stabilizer control.. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume..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. p. rather than help. their ultimate goals in the legal process. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north. To prevent such inadvertent abuse or exploitation of the examinee. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. the ethical expert be13 . In this chapter. S-3) THE EXPERT faces many challenges in forensic work. tend to drift unconsciously into a “therapeutic mode. while a judge alternately stomped on an unreliable accelerator and an unpredictable brake. and its results may harm. particularly an empathically attuned one. It is a control easily within the reach of every witness—the lever marked “truth.” (1.
) For example. denounces your integrity. this case might be called a defense case because the actions of the defendants are. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. indeed. You pass this information on to your retaining plaintiff’s attorney.g. If you turn down most cases you get. 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. repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. of course) are especially important in capital criminal cases in which a life may literally hang in the balance. impugns your ancestors. For symmetry. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. If you take every case you review. indicates the intention of explaining your information to the client. The warnings (carefully documented. understandably. 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. the attorney curses your name. (Note that even if you cannot support all of the claims proffered in the case. you must consider whether your threshold for case validity may be too low. Therefore. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. Rather. After settling up any monetary adjustments. you are friends with one of the defendants).14 THE PSYCHIATRIST AS EXPERT WITNESS. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. defensible.. and slams down the telephone. and states. that the firm will not be using you as an expert. scoffs at your qualifications. Turndown rates between 10% and 30% are not uncommon. this case is over and has been turned down. after reviewing. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. either your threshold for validity is too high or you need to meet a better class of attorneys. who—in the ideal situation—accepts this view. the turndown rate is the percentage of cases in which. 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? . if necessary. you decide you cannot support the retaining attorney’s position. thanks you for your help. In a not-so-ideal situation.
The third model and the one probably in most common use might be called advocacy for your opinion (rather than. and 2) you answer cross-examination truthfully (see the following discussion). that position is always acceptable. you could receive a number of good cases. only over those you elect to accept. as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. Partisan pressures from the adversary are put aside. for example. 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. the only touchstone is absolute truth as you know it or understand it. they do represent cases in which you have elected not to participate. Consequently. and the expert becomes the fully neutral observer and reporter. Consequently.” Your correct answer would be. say. Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). all of which you should turn down. inpatient care.The Expert’s Ethical Universe 15 Note also that you may be in a position to refer cases to colleagues who are known to you as having perspectives different from your own on. or a number of invalid or meritless cases. This model is sometimes called the advocate for truth model. for a particular case outcome). Nevertheless. and so on. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you.” . most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. In forensic practice.” Once under oath. This model has been called the honest advocate model. “White. 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. speculate about. One model holds that once the oath is taken. “What color is that house over there?” The novice answers. Although these referrals are not strictly turndowns. guess. An author described the special sensitivity to what one can swear to in this way: You are asked. that is. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. you take nothing for granted. “White on this side.
The attorney is free to find another expert. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. Recall that the attorney’s goals are winning the case. The varying forms of bias are discussed below. As you work closely with your attorney. out of feelings of being loyal to his or her retaining attorney. committed quality work. is misreading the nature of the ethical contract between the two parties. If the attorney. . and admire him or her. This difference is significant. your opinion and its limitations.g. respect. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. you do not owe agreement with the attorney’s position or theory of the case. “First Principles. thus. that is. this factor would require greater scrutiny of the relationship by the forensic witness. might extensive socializing with the retaining attorney—or. the skeletons in your closet. or make whatever use of your opinion that may be of service. settle or drop the case.” in this volume).16 THE PSYCHIATRIST AS EXPERT WITNESS. you owe only serious. A pitfall in this area might be called forensic countertransference. this identification may compromise your needed objectivity. discussed further in Chapter 3. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. Extending this idea. You do owe it to your attorney to level with him or her about yourself (e. 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. but two dimensions of the relationship pose potential ethical problems. with whom you have done many a previous case together. 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. First. you may come to like. under the rubric of loyalty. 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. just what does the expert owe the retaining attorney? Strictly speaking.. and what you can and cannot testify to under oath. that is not your problem. yours are providing ethical and valid consultation or testimony or both. identification with your retaining attorney (discussed more extensively in ). similarly. is disappointed that your present opinion is unfavorable. but the likelihood of identification bias would surely seem to be greater.
this effort may be termed nonsexual seduction. In this model the attorney lavishes praise on the expert. 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. and may add blandishments such as dinners at expensive restaurants and the like. you are expected to manage your countertransference toward the examinee or the examinee’s actions. you may feel unable to examine objectively a child molester. Somewhat idealistically. Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial.” Note also that. many expert biases are not detected either by the adversary system or even by the experts themselves. for instance. 33) However. The situation does reveal some complexity. 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. eliminate other subtler biasing factors. although not common in practice. of course. This neutral position is highly desirable for that reason. The . An empirical study aimed at obtaining a sense of the prevalence of this and other attempts at influence revealed that 35% of the admittedly small sample had experienced such efforts “apparently aimed at obtaining a favorable opinion” (4. The fact that the position is more or less neutral does not. (p. Slovenko (5) has suggested: The adversary system of calling witnesses for each side and then examining them by direct and cross examination has evolved specifically for the purpose of exposing shortcomings and biases and probing the accuracy and veracity of opposing witnesses’ testimony. of course.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. an attorney. 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. bias can be exceedingly subtle. p. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. as a clinician. If you are a victim of child molestation. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. you should refer the case. such as overidentification with the judge or the “system. Similarly. 337). promises many future retentions. There is no shame in this. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case.
while servants beat him with knotted towels. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. Such candor may well enhance their credibility. likely be explored. Finally. if appropriately asked by the other side. none of this information should be a surprise to your retaining attorney. Again. Gutheil and Simon (6). experts can be separated into two categories. the limits of your conclusions. p. 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. . the true extent of their opinions. defend those opinions passionately and fiercely on cross-examination.” Your retaining attorney exerts the pull of retention. and their testimony is often unconvincing. and the hypothetical situations under which their conclusions would be different. the limits of your knowledge. and the limits of your testimony. both pull and push must be resisted. expert testimony is like that. 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. the limits of your credentials.The Expert’s Ethical Universe 19 TABLE 2–1. The less admirable experts. yes. and identification as above. the opposing attorney exerts the push of attempted impeachment. having become inappropriately enamored of their opinions rather than of the truth. loyalty. In the process of cross-examination. The more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. 261. the limits of your data.
pp 33. SECOND EDITION References 1. 2004 4. Bull Am Acad Psychiatry Law 20:163–177. J Am Acad Psychiatry Law 32:70–75. Martinez R: Forensic Ethics and the Expert Witness. WI. objectivity and fair compensation. J Am Acad Psychiatry Law 36:195–200. 8. 2002 Gutheil TG. 2001 Slovenko R: Discrediting the expert witness on account of bias. Baltimore. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty. 3. Springer Science & Business Media. MD. 6. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. DC. Milwaukee. 2007 Gutheil TG. Gutheil TG: Expert witness perceptions of bias in experts. Weinstock R. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. December 2004. New York. Miller PM. Washington. Miller PM: Withholding. Baker TO: Operator’s Manual for a Witness Chair. J Am Acad Psychiatry Law 29:336–339. 7. Prof Psychol Prac Res 33:307–309. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 1992 Lynett E. 1992 . 2004 Gutheil TG. 39 Gutheil TG. 2001 Miller RD: Professional vs personal ethics: methods for system reform. 2. 2008 Katz J: The fallacy of the impartial expert. 38. Int J Law Psychiatry 13:249–259. Psychiatric Times. Simon RI: Avoiding bias in expert testimony. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. McKinzey RK: The ethical confrontation of the unethical forensic colleague. American Psychiatric Publishing. Psychiatric Annals 34:260–270. Williams & Wilkins. 1990 Brodsky SL. Commons ML. 5. 1983 Appelbaum PS. J Psychiatry Law 28:449–457. J Am Acad Psychiatry Law 27:546–553. 4th Edition. Defense Research Institute. 2002 Candilis PJ. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. 1999 Commons ML. Bull Am Acad Psychiatry Law 20:141–152.20 THE PSYCHIATRIST AS EXPERT WITNESS. 36.
The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. 1993 Shuman DW. Bull Am Acad Psychiatry Law 19:237–248. Behavioral Sciences and the Law 5:149–160. 1987 Schultz-Ross RA: Ethics and the expert witness. J Am Acad Psychiatry Law 33:386–389. Greenberg SA: The expert witness. 1989 Weinstock R. 2005 Rogers R: Ethical dilemmas in forensic evaluations. 1991 . Leong GG. the adversarial system and the voice of reason: reconciling impartiality and advocacy. J Am Acad Psychiatry Law 36:167–174. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. Bull Am Acad Psychiatry Law 17:189–202. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. Hosp Community Psychiatry 44:388–389. Prof Psychol Res Prac 34:219–224.
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treat. However. the patient is your employer. discussed in the previous chapter and later in this chapter. make recommendations. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. considered for examination of competence to stand trial. you still work only for your retaining attorney and. as when a defendant.CHAPTER 3 First Principles IN CLINICAL WORK. forensic work should thus always begin with the question. or some kind of class action). When you examine a plaintiff at a defense attorney’s request. 23 . and compromised working relationship. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. prescribe. that is usually clear. you should—be polite and supportive to your examinee. is being treated in a hospital setting. that person is the recipient of your opinions. share a copy of your report with the examinee. your employer is less clear. you may—indeed. That relationship is also a source of certain pitfalls of bias. regardless of what is going on with other experts or treaters. Your duty is to the person for whom you are working. In the forensic relationship. Although you are usually working for an attorney. that attorney’s client. you may or may not owe a separate form of allegiance to that attorney’s client. indirectly. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. ineffectual testimony. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. or perform some other such intervention with him or her. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. but you are not required to preview your findings.
This telephone call is far from a mere administrative formality. If this issue is in question. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. Smith until he or she invites you to call him or her John or Jane. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. which—either by accident or. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. on purpose—he chose to characterize as “mine. Friendly. Watch for this ploy. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition. the topic is extensively discussed in the companion volume. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. or Ms. I was asked. The Psychiatrist in Court: A Survival Guide. refer to those sources. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. It became clear that the cross-examiner meant my retaining attorney. this approach is self-defeating. though this distinction may be intentionally obscured as a cross-examination tactic. the second forensic question is: What exactly am I being asked to do as a psychiatrist? What are the clinical and forensic issues? Are they rational? Are these issues that a psy- . In this chapter. How you communicate with your attorney is important from the outset.24 THE PSYCHIATRIST AS EXPERT WITNESS. and mastery of professional jargon. not your personal counsel. politeness dictates that you call the attorney Mr. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. the term your attorney will be used to refer to the attorney retaining you as an expert. informal discussion should be the format. “Have you discussed this with your attorney?” This threw me. for whom am I working. clinical experience. The Retaining Attorney’s Request After the first forensic question. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. This point came up in an actual cross-examination in a distant state.” implying venality and bias. more likely. Instead.
For example. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. if your aged mother has just died in a nursing home. and so on. but subtler versions of personal resonance with a case are not uncommon. 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. experience. Note that your special expertise should exist against a backdrop of your general competence in the field. take on this case? Do you have some expertise in this general area or in this specific area? If you do not.g. The attorney can then take or leave this arrangement. I don’t know a great deal about this specific subject. 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. This example is fairly obvious. “Look. These issues go beyond mere conflict of interest. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. I recommend hearing about the broad issues of the case first and only then asking for people’s names. that is. if you cannot or should not take the case. the hospital. however baseless? Are you now being investigated by the board of registration for some allegation. Your Fitness as an Expert Should you. but I am willing to become familiar with the issue”). the attorney will not have revealed confidential information (the names) to you. yet you will have screened for bias before the attorney has taken you too deeply into trial strategy issues that should be kept privileged and private.. 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. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e.First Principles 25 chiatrist actually has some knowledge about. no matter how unfounded? Do you have a . as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. personally. board certification. such cases should be reality-tested for the attorney. as indicated by publication. In general. Therefore. 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. which is usually (but not always) clear-cut. have you been the defendant in a malpractice suit.
for instance. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment. Time. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. Similarly. unfortunately. (1) This quote is interesting from several viewpoints. 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.g. Thus.” when everyone. in the preceding quote. . or have been retained by one side more than the other? Review this with the attorney. “Smith failed to plead . . If you write a lot.. you realize that the more you write. for example. are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. credentialing problems in the past. Finally. the more words you might have to eat on cross-examination. Reviewing your own published work in a particular area is a worthwhile part of your preparation. 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. are there cases in which you have testified on behalf of the other side. in an economic sense. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. Do your best to address this possibility early. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i.In too many medical malpractice cases. . a criminal record (no matter how minor). even if the issues are clinically or forensically totally different. Fees. This issue is further discussed later in this chapter.. Belatedly surprising your attorney (e. juvenile offenses. SECOND EDITION history of problems in the military.e. 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 ultimate beneficiaries. have taken an opposite position or opinion. As is often the case. attorneys are invisible within the court record. contradicts your present position.. including the speaker. 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.26 THE PSYCHIATRIST AS EXPERT WITNESS. the court record chidingly notes. . they are all corrupt). who are the strangers in the courtroom. for the first time while on the witness stand) is a major expert sin. . not for their time and clinical expertise. Second. knows that it was Smith’s lawyer who was derelict.
attorneys have timers on all their phones and charge by the split second. Note also that time spent thinking. Therapists who are quite capable of taking an extensive. Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. I tactfully suggest that. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. First. meaning no offense. The attorney either takes me up on this offer. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. choose a fee that you would not be embarrassed to state. Doctor. planning. without children bursting in to share their Nintendo triumphs with you). since the doctor-patient relationship is not pertinent to the examiner-examinee one.First Principles 27 not the forensic context. same as you.” or “I am paid by the hour. or challenge the details. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. I also recommend not “nickel and diming. and hires me anyway. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered. this usually means that the client has hesitation or resistance about my rates. but you are made of finer stuff. ideally delivered in a calm tone of voice and not through clenched teeth. Indeed. this is a pro bono case for you?”).” Yes. allowing me to refer to a junior colleague. Like the judge previously quoted. 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. and organizing your forensic assessment is part of the work. is “I am not being paid for my testimony. grits his or her teeth. nit pick. Don’t charge for a 90-second telephone call confirming the date of . I know. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). whether for psychotherapy or expert witness time. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. analyzing. 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. only for my time. or grasps the point. Second.” or “Nothing” (and wait for the attorney to crack. “So.” Other witnesses may take this further: “My testimony is not for sale. 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. Use timers or check your watch at the start and end of a piece of work and write down the time. and try to maintain that rate.
Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. How much work or time should you devote to the case? This depends on your schedule. or for reading a one-paragraph letter. The attorneys. the good folks on L. Then. some of which never . but in my experience. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). 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. Urge your attorney to bring up your fees on direct examination to get it out of the way.. Perry Mason. shame. I reported him to the Massachusetts Board of Bar Overseers. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. failure to pay is reality. the organization in charge of attorneys’ ethical issues. you are charging for time regardless of the outcome of the case. they referred me to small claims court. If you don’t have enough time. in addition. I took my first major “stiffer” to court eventually and received some of my money. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. you can calmly state them without guilt. when you design your own fee agreement. your fee should never be contingent. To novice experts. It should. Keep your vacations in mind. basically consultative services. at the end of this book. 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. SECOND EDITION a deposition. You give only testimony. for instance. That august body opined that this was not an ethical problem but a business issue or a contract issue. Owen Marshall. it is unfair to your attorney.e. of course. Ethically speaking. among others. and give the dates to the attorney. are free to employ contingent fees. when asked about your fees on the stand. You sell only time. respectively. Refuse any other arrangement. defaulted on payment) by their first attorney. but your consultation must be free of investment in any form in the outcome of the case. don’t take on the case.A. even if there is). ideally.28 THE PSYCHIATRIST AS EXPERT WITNESS. Bitter experience teaches that it is critically important to have a standard fee agreement or contract signed by the attorney (or insurer) and to operate by retainer or payment in advance. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. it comes as a surprise that it is not an ethical violation for an attorney to stiff his or her expert for a legitimate fee if there is nothing in writing (and in some cases.
or will your opinion be used by the attorney to strategize without a report. If you are. The usual next step begins with your receipt of written materials on the case. You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. 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. Among other things. Moreover. that role would be ethically incompatible with the objective testifying role. your consultative.First Principles 29 lead to the courtroom. testator. defendant. is a tentative trial date known? How do your vacations fit in? This information allows you to allot more time and spread your cases so that you are not testifying on consecutive days for different cases—the expert’s nightmare. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. or is the matter likely not to go to trial? Are you going to be a reporter. for that matter). or even witness. how free from bias or conflict the situation is—finally ask. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. how you feel about the attorney. working for the attorney or insurer is a far better idea than working for the client alone. You simply may be a consultant to the attorney on the merits of the case at the outset. that is. Do one or the other. nontreatment role is clearer. at some point. someone who has to generate a written report. The Final Decision Putting together everything that you now know—what you charge. 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. rarely. an individual client. your first task might be an evaluation of plaintiff. what your time permits. often in orange-crate–sized lots. In other cases. is more accountable. Which comes first boils down to a matter of individual preference. You may be needed to evaluate a plaintiff (or a defendant. going to testify. your attorney. as a professional. You may provide rebuttal material for use by others. . As a rule. what your skills or knowledge support. Will you be expected to testify at trial. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. You might advise the attorney on how to cross-examine the other side’s experts or litigants.
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). Regrettably. even in a consultative sense? In the initial telephone call. The point is perhaps an obvious one. or a tendency to want to withhold information.30 THE PSYCHIATRIST AS EXPERT WITNESS. of course. stating that the patient’s dangerousness flowed from his being charged with slashing tires. 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. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. his dangerousness was the crucial issue. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. does the attorney have merit? As a rule. 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 that matter. There is nothing inherently wrong with this desperation. you may be the ninth expert the attorney has consulted. attorneys would call you only for ironclad solid cases in which they have every confidence. I recommend listening for indexes of venality. Scheduling considerations may determine the first task. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. the attorney may be employing you in a desperate attempt to clutch at some faint hope. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. In any case. in relation to which. a tendency to assume you will give the “desired” opinion no matter what the material shows. a behavior that certainly did not seem all that threatening. the emotional pressure of the attorney’s desperation should not alter your objectivity. including by obtaining expert consultation. you must ask the question. For example. the next task is clear. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. compared with some other behavior. The attorney presented the case to me by telephone. the minority are the ones who pose the problems. though you would not necessarily know this. followed by review of the documentation. However. On perusing . In reality. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical.
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). however. 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.” He wondered if that could be equally well expressed by “areas of competence. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. after you have given your verbal report.) The second red-flag situation occurs when. and the result may be your withdrawal from the case. For example. Expert witness work is hard enough without bad faith. You cannot afford to embark on a course of work with someone such as this particular attorney. the benign category. Obviously. I told the attorney that she possessed “islands of competence. Some attorneys. however. based on the patient’s history of significant violence. the malignant category. Somewhat annoyed. therefore. based on your review of the database. the only safe course is not to work with that attorney. I decided those were near-enough equivalents. the wording in which your opinion is couched and the substantive alteration of your opinion. wants to be certain you took note of a particular record entry or deposition statement.First Principles 31 the old record. such pressure should be resisted. will argue with you at this point. which happen to be unfavorable to the retaining attorney’s case. Another less knowledgeable group of attorneys will be educated by your discussion. 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. In the second. I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. you give your conclusions. then you have to expect the same in the future. In the first. A delicate balance must be struck between reasonable flexibility about. in a competence assessment of an elderly woman. 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. the attorney wants to be sure you understand the import of certain data. If he or she withholds or distorts information or lies to you initially. a document often difficult to unearth but essential to the full evaluation.” After mulling this over. but I emphasized that he and I needed to be clear about the fact that I would testify . and the arguments fall into two categories. (Note also in this example the value of the previous record. for instance. Most ethical attorneys. arguments are the attorney’s attempt to browbeat you into changing your mind. I telephoned the attorney and demanded to know why he had withheld this history. faced with this disappointing fact.
I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. Agreement was struck. and I accepted. moreover. and testify to if asked. I did not recall because I do not keep that kind of record. that since I had read it and thought it relevant. The attorney made a big show of my “concealing” this information.32 THE PSYCHIATRIST AS EXPERT WITNESS. the remainder of the opinion. “withholding” important data from the jury.” The attorney moved on to other matters. regardless of what may be precluded by rules of evidence and discovery. rather than Volume I. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. It is important to ask for everything from the attorney. Since only the final (or courtroom) opinion is determinative. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. This is the final opinion I am giving here and now. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. The attorney asked for major cuts or deletions. One attorney nearly drove me mad by releasing dribs and drabs of material. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. inclusion of somewhat negative evidence would show objectivity. in fact. only the final opinion really matters. This was trivial. The negotiating discussion moved into argument. however. and withdrew from the case. under the specious rationale that this method would permit seeing the evolution of my opinion. and so on. this rationale is especially ill-founded. This suggestion was acceptable. after discussion I accepted that. to “go over” my report. multimillion-dollar will contest. tactfully. I told him. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. in any way. hung up. shape or form whatsoever. finally. The attorney said he was offended that I should even think he was suggesting omitting something. and did not stop until I said. in a high-profile. I said I would change nothing. He asked me to use the dates of the depositions I had reviewed. wanted. In another case. his senior partner wanted to deemphasize the subject by changing some wording. an opposing attorney asked me on the stand when I had received various parts of the database. and so on. I had prepared a 22-page single-spaced report. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. In yet another case. In a variant on this issue. I could not ethically omit it. Although delighted with this level of detail. . the retaining attorney. in an extended phone call. Volume II. even if some material is irrelevant and other parts are inadmissible. Your request should be global.
This problem is a variant of a countertransference issue. “Look. long pages of deposition testimony drone on about the exhibit. 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. facts. In general. you are creating a checklist. if you will. even data of dubious validity. but you can only imagine it because the actual document has not been provided. check the documents you receive against the cover letter to be sure you have everything you should. As you go through the documents.” 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. each element of which may be confirmed or disconfirmed by other material in the database. Second. but I’d like you to do this evaluation on him anyway.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. and connections that can be checked against the primary record data and flag those in some way. I find it helpful first to read the complaint so that you know what the basic issues are. it is up to you. First. I think this guy is probably not insane. you should consider some important points. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. . My own approach is as follows. directed not toward the patient or examinee but toward the attorney. He was photographed doing the crime. However. Forensic countertransference is further discussed in reference 2. Referral to another or an additional expert also may be indicated. feel free to use it if it suits your own preferences. This ethical dilemma arises when the attorney says. for example. Either undertaking or turning down such a case is a defensible position. look critically for claims. I have found that attorneys for some reason often fail to send the exhibits to depositions. after your report. As you read the complaint. because I’ve got nothing. a situation sometimes occurs that requires special mention. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. 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. Recall that a plaintiff can claim anything at first. you would expect the attorney to accept the limited contribution you may make (if indeed it is limited) and not to attempt to persuade you to amplify or distort your conclusions.
you may also request that the attorney’s office create the timeline. the witness. if you have not already done so. then to check the record to determine whether the complaint or issue has any validity. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. I strongly recommend reading large chunks of material at a single sitting. third.34 THE PSYCHIATRIST AS EXPERT WITNESS. This approach is the best way to have the whole case in memory so that you can catch contradictions between different sections of the database. The attorneys on either side of the case may limit the interview time available. for example. no matter how difficult the scheduling might be. exert every effort through your attorney to obtain enough time to do an adequate examination. This permits. Such an examinee-first approach. A laptop computer for this task may be quite helpful. accept it as a limitation. . 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). Some discretion. and selection of a safe environment may be required for examining potentially dangerous examinees. the defendant. you also may want to review relevant literature on the subject. your interview queries would thus arise directly out of the material. you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. cold. advance screening. you will want to interview the plaintiff. Given the complexity of many psychiatric malpractice cases. If the appropriate amount of time for your examination cannot be obtained. SECOND EDITION Second. including your own. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. insanity in a criminal context). you are familiar with basic interview approaches). perhaps by a paralegal. or whoever is involved in the case (presumably. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. I read the medical records and clinical material or the equivalent. makes it harder to focus on hot spots of the case or areas of contradiction in the database. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. At this point. The Interview After reading the materials. the depositions or witness reports. and be prepared to acknowledge this constraint as a limitation on the data.g.. however. Note for completeness that some experts like to start by examining the litigant first. or with only the complaint reviewed. the testator.
the expert will receive a request to have an attorney or paralegal present during the interview or. but I strongly recommend opposing their occurrence through your attorney. The fundamental reasons are as follows: 1.First Principles 35 If the witness lives locally. then to read the database. when examining for the opposite side of a case. The occasional plaintiff ’s attorney will openly state that he or she never allows an IME (independent medical examination by an expert) of the client-plaintiff. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. more authentic) responses to your inquiries. then to examine him or her again to clear up matters raised by the written material. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . for some experts. unobtrusive note taking probably represents the optimum compromise among choices. Examinees commonly play up to the audience or recording device. presumably. it might be effective and appropriate to examine him or her first. Jurisdictional rules may make one or all of these procedures mandatory. For example. alternatively. Note that when you are retained by the defense and wish to examine the plaintiff. and suggestions from the attorney present may contaminate the process. the absence of this datum must be factored into the opinion. based on the belief that such an examination can only hurt the case. in one case. However. be spared this burden.” My immediate response. exaggerating symptoms. This decision is legitimate but bears consequences. however. Inappropriate interruptions and objections. inhibit free-ranging inquiry. it is certainly beneficial for teaching and for self-review for quality assurance. 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. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops. Examinees who must travel to see you should. that side’s attorney may refuse to allow you to do so. Verbatim material also can be obtained in this way. to have the interview audiotaped or videotaped. focusing on making a recording. If you are unable to prevent the above intrusions. These procedures distract you from being able to give full empathic attention and close observation to the examinee and.” was appropriately disconcerting. cuing. as a rule. an audiotape or videotape of an interview may be constructive. Not uncommonly. For a number of circumstances. 3. “You wouldn’t let me!. although this irritates some examinees more than writing during the interview. 2.
“I could tell by the expression on my doctor’s face that he was having sexual thoughts about me.Attorney Larry Cohen (personal communication..An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e.. Plausibility The first question to ask of the case. 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.g. “I wasn’t myself when I plotted that elaborate armed robbery”? Internal Consistency Does the subject on the side retaining you present a coherent story. behind the examinee). a mass tort in Louisiana. . warn once. 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. (4.. 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.” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on. a second offense should lead you to terminate the interview and report this interference to your retaining attorney.. the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here. the parts of which do not refute one another? Did the subject tell the same story to different observers at different times or a varied story? What benign factors might account for this discrepancy? What might this finding imply about possible fabrication. and so on? . March. be it civil or criminal. Do the deviations from standard of care sound hokey. as when the complaint boils down to.36 THE PSYCHIATRIST AS EXPERT WITNESS. p. a psychiatrist interviewed plaintiffs with an attorney present. distortion. This subject is addressed extensively elsewhere (3). but the following vignettes make the point clearly: For example.. and I want to sue him. 322) To offer a structure for this stage of the inquiry. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. in the unpublished 1996 case of Lailhengue v. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. Mobil. is whether the case is fundamentally plausible..
plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. however. The phone records aided in challenging the claim by providing a time stamp. 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. MGM/UA. 1978). observations. how might it have occurred alternatively? Is there another way of explaining what happened. remember not to offer any treatment or treatment recommendations to your examinee. Finally. about the historic English crime. she assumed the doctor was not present and could not refute her claim. 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. even if asked to do so or tempted by medical ne- . Alternative Scenario In the film The Great Train Robbery (Crichton M. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. or for some criminal claims of insanity. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. he had made several outgoing calls during the time period of the alleged molestation. such as sexual misconduct. She had apparently established these referents by calling the office and receiving no answer. or the alleged damages? For example.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. a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. the following dialogue occurs between the trial judge and Edward Pierce. If the situation did not occur in the manner claimed. as well as disability evaluations and similar tasks. the outcome. 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 defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. in a sexual misconduct claim later proven groundless. The notion of the alternative scenario can be essential for assessing civil claims.
you will interview the subject (plaintiff. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. Is the patient convincing and plausible? Do the words match the music. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. possibly with reporters present. Her emotions were strong and appropriate to the content. hurt your case. my testimony may help your case. move on to the substance of your interview. but since I can only be useful if I am objective. if not. in both civil and criminal cases. as noted early in this text. Only when I subsequently read her deposition did her entire . and if you do not. in a deposition. recall that anyone can really be fooled.38 THE PSYCHIATRIST AS EXPERT WITNESS. Fitting Together the Interview Commonly. I am entitled to make note of that. 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. what you say may come out in a report. that is. I have been retained by (your side. the court). unlike what you may be familiar with from other doctors or therapists. Note the fully intentional structural resemblance of the above paragraph to informed consent. such as informing the examinee which side has retained you. The relationship is not a medical one. or have no visible effect on your case—only time will tell. you do not have to answer any of my questions. Other warnings. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. you can ask for a break (water. there are some things I need to inform you about. Second. And finally. or in an open courtroom. you are attending to his or her demeanor and its relation to credibility. First. please sit down” but before anything substantive has been said: Before we start. compare the consent form in Appendix 1. Do you have any questions about what I have told you so far? If the person has questions. SECOND EDITION cessity as treatment issues emerge in the interview. defendant. the other side of the case. and others) as part of your exhaustive review of the database. she had plausible answers for all my questions. and you must keep several issues in mind. answer them as best you can. restroom) at any time. As you are interviewing the examinee. what we talk about here is not confidential because I am not your treater. and treatment offers are inappropriate. You will be challenged to weave interview data into the totality of the case. Third. seem to be called for out of fundamental fairness to your examinee. although I hope you will do so.
The plaintiff ’s failure to take those remedial steps does count against him or her. the preexisting condition must be deducted from the damages. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria.First Principles 39 case fall apart. Jones did Y and the plaintiff did Z. particular plaintiff vulnerability for which the defendant must be held responsible.. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. 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. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. For example. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. but then Dr. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. Similarly problematic is the matter of intervening causes: “Dr.” In the civil system. 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 . Smith did X at this point. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. The Causation or Connection Dilemma In many forensic cases.e. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. especially when they themselves. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. Besides serving as a valuable lesson in humility. a defendant may be mentally ill. Such distinctions are extremely significant in the hard monetary realities of the legal case. because the defendant is not causally responsible for what happened earlier. but those efforts may fail or be misdirected and may even make things worse. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. believe deeply in their position. it only means that you’re being conned into thinking that you’re not being conned. on the other hand. the case was highly instructive: interviewees can be extremely convincing. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. but did that deviation cause the damages.
although it has not yet gained broad enough acceptance to be generally admissible as evidence. References 1. DC. Washington. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. Another good rule is to discard. 2002 Gutheil TG: Reflections on coaching by attorneys. two major approaches apply: 1) shred or have a reputable company shred the paperwork.40 THE PSYCHIATRIST AS EXPERT WITNESS. 2. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. what the results were of subsequent events. SECOND EDITION were of a particular deviation. Or. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. event. keep the latter indefinitely. and so forth that require revisiting the materials. because they would be hard to replace. American Psychiatric Publishing. appeals. or incident. and then has other symptoms or more of the same symptoms. Kirby v Ahmad. what amount and what percentage) of the damages can be assigned to the later trauma which is the occasion for the suit? To take this issue out of the guessing-game arena. J Am Acad Psychiatry Law 31:6–9. or 2) return the materials to the retaining agency. work by Pittman and Orr (5) on differentiating serial trauma shows promise. Even if a case seems “over. What portion (usually. if any. and what the exacerbations were of preexisting conditions. with permission. 1994 Gutheil TG. . 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. 2003 3. and your interview notes. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. If you are discarding case materials. mistrial claims. all case materials except your reports. In addition. then is sexually abused by a treater. Further research may reveal other promising approaches (6). 63 Ohio Misc 2d 533 at 534.” there may be subsequent posttrial motions. they may serve you to recall the case at a later point for research or publication purposes.
2007 Borum R. 3rd Edition. & Hall. Edited by Rogers R. J Am Acad Psychiatry Law 31:232–238. Lippincott. 1993 Deaton JSD: Toward a critical forensic psychiatry. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. 2003 Group for the Advancement of Psychiatry. Medical Chances: How Patients. New York. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Williams & Wilkins. 1993 Bursztajn HJ. in Clinical Assessment of Malingering and Deception.First Principles 4. 3rd Edition. New York. Assessment 4:321–324. Routledge. MD. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Bull Am Acad Psychiatry Law 21:37–52. Guilford Press. Brunner/Mazel. 2008. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. New York. 2005 . J Am Acad Psychiatry Law 33:158–175. 4th Edition. Chapman. Feinbloom RI. Families and Physicians Can Cope With Uncertainty. J Psychiatry Law 24:3–25. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. 5. New York. Williams CW. Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. Baltimore. et al: Response bias in plaintiffs’ histories. 1990 Suggested Readings Appelbaum PS. Otto R. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Guilford Press. Brain Injury 11:791–799. Hamm RM. 1997 Pittman RK. et al: Medical Choices. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. J Psychiatry Law 21:33–76. 1991 Lees-Haley PR. 41 6. Zasler ND.
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In a suicide malpractice case. for example (the most common claim against mental health professionals).CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. Sometimes forgotten is the fore43 . 2) breach of duty. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. Psychiatric Malpractice Cases One of the most critical issues in psychiatric malpractice is the failure to prove all four elements of malpractice (dereliction of a duty directly causing damages): 1) duty of care. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. once you know it has already happened. you already know the person is dead. and 4) proximate cause. The discussions within this chapter should be considered an introductory survey. 3) injury to the patient. than was actually so before the event in question occurred. in this chapter. 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. Generally. More practically. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. this bias means that the outcome of an event appears as though it had been far more foreseeable.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of
Types of Typical Cases
course, it is quite a different matter if the on-site treater’s conclusions are internally inconsistent with his or her own contemporaneous observations or are egregious distortions of the diagnostic or therapeutic process. But absent such extremes, great primacy should be awarded to subjective, nondocumented material that is observed and enters into the decision making by the on-site personnel at the relevant time. It is therefore important to suspend your judgment while reading a case until the whole has been reviewed. Each side can be surprisingly convincing when assessed in a vacuum (such as the complaint or interview alone) so that premature closure of your opinion is a great hazard of the trade. Resist this temptation, and flag those claims that need to be checked against other parts of the database.
The Standard of Care
The question of the standard of care is a complex but central issue in malpractice; it is the benchmark against which deviation (i.e., negligence) is measured. Unfortunately, the official standard of care or the wording in which it is couched may vary between jurisdictions. As an expert, you must, of course, familiarize yourself with the relevant local standard and its wording early in your work on the case and apply it to your review of the database. Massachusetts case law, for example, has a rather elaborate definition; the standard of care is that of “the average reasonable practitioner at that time and under the circumstances and taking into account the advances in the field.” By inference, this is a national standard, because advances in the field are professionwide, not regional. Other jurisdictions may have what is called a locality rule, which is a standard drawn from the practice of clinicians in that locality. For example, part of my qualification process in testifying in Durham, North Carolina, which has the locality rule, was to demonstrate the various ways in which I was aware of what clinicians do in Durham. In light of some recent American Psychiatric Association (APA) publications articulating diagnostic and treatment guidelines, how are these guidelines to be construed in relation to standards of care? The average guideline is not itself a standard; rather than describing average actual practice, the guideline often identifies what care ideally should be, that is, best practices. For example, if you write a textbook of psychiatry and law that proposes certain recommendations, those are not the standards of care. Those recommendations are called precatory or preaching; that is, they preach what the best care should be, rather than the required average reasonable care. Those recommendations do not pretend to be the standard of the average reasonable practitioner. All of these citations may be legally considered “evi-
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.
Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. for example. 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. There is something of a translation burden on you to read between the lines to determine the issues. you are seeking consistency and credibility. you read the depositions of witnesses. 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. of your thoughts and reactions. I find it valuable to look at the social service history. In the process of reading.Types of Typical Cases 47 the tests ordered. 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. these may not necessarily be the questions you would want to ask. if present. On some occasions. 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. . as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. you may be tempted to say to yourself. you may have to pose your own questions to the parties. opposing experts. of any queries or signs of missing data that the record generates to be checked later or elsewhere. and others. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh. the next time you read this document for deposition or trial may be 7 years away. defendants. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review. or whatever. but depositions consist of attorneys’ questions to various parties. of course). as different things may strike you on subsequent review. through your retaining lawyer’s permission and intercession. the expert may draw conclusions from the record alone. “This is so clear and memorable that I will naturally recall it later. This notation can be on a separate sheet of paper of similar notes. nor are the queries necessarily posed the way you would do so. make some sort of notation each time you read through the record. Next. of what this record entry contradicts or supports in the deposition.” However. When reading the deposition. To save yourself reading everything from scratch each time. a marginal scribble. as a separate document. The point may seem obvious. or a folded corner of the page. after the records. any forensic document) without making some sort of notation of what is significant. or it can be a highlighted entry. an underline.
eh?” Presumably. On occasion. Doctor. or expert. For example. 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. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. To read critically. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. statements of the arresting officers. remember to consider diminished capacity as an intermediate condition. you can be drawn into the prose by the unfolding drama therein recorded. litigant. while reading a deposition. what do you think about this amazing case. are the most significant. I have had opposing attorneys telephone me directly on a “fishing expedition” to see what they could get me to disclose about a case without the trouble and expense of scheduling a deposition. Is this defendant someone who seemed to show . you are lulled by this informal. The truly challenging case lies between these extremes. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. is historical material. your attorney’s confidential trial strategy. a case wherein the defendant had or has a major. exert the effort to stand back from the process. data gathered at the time of the alleged act. Criminal Responsibility Cases In cases of criminal responsibility. “I think you should talk to the retaining attorney. the more helpful it would be in forming your opinion. namely. The appropriate response is. Because of the flow of material and its often fascinating content. you may confront the classical poles of the issue. Of second-rank importance. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. SECOND EDITION Although the more information gathered. Out of the entire panoply of available material on a criminal responsibility case. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. weighing the logic of the deponent’s responses. In those jurisdictions where the issue exists. and records of any treating clinicians from points close in time to the alleged acts. but still relevant.48 THE PSYCHIATRIST AS EXPERT WITNESS. and so on. These would include witness and victim reports. friendly approach into letting your guard down and discoursing freely on your opinions. it is inappropriate to call or write directly to the opposing attorney. in my (and almost everyone’s) view.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. These unethical conversations usually have an informal tone: “So.
although mandatory and irreplaceable. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. an unrelated accompaniment to the crime. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. a plaintiff drank from a chemically contaminated bottle and burned his mouth. the cause of the crime.8). The interview also gives you a chance to assess what might be called a sense of proportion. for example. The novice expert should become familiar with useful publications on the subject (7. an injury from which he recovered rapidly without lasting effect. In one case. as with all forensic evaluations (6). 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. a surprising number of individuals avoid treatment. I find the interview for an emotional injury case to be of primary value. malingering is especially common and problematic in this assessment. some on . All the interview data must be fitted to the totality of the database. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. the result of the crime. and so on. the interview in a criminal responsibility case has the least power of all the data collected. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. Finally. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. 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. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination.Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. The 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. Because of the seriousness of criminal penalties.
Finally. 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. In this situation. For example. History. as a result of the mugging. but they may also be relevant to assessing damages or preexisting conditions. you again often encounter the previously described problem of factoring out the effects of serial trauma. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. SECOND EDITION their own accord and some when given this advice by their attorneys. 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. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. The shopper then may sue the store for harassment and consequent emotional harms. however. with intrusive flashback memories. Such a search can be embarrassing and humiliating to anyone. avoidance. I had to interview him in his home because he claimed to be phobically homebound. Next to the small table where we were sitting. and startle responses. in regard to which the defendants must “take the plaintiffs as they find them”).e. Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. A question you should ask your interviewee is. “What would have to happen for you to go get treatment to mitigate your damage in this area?” A response such as “I would have to find a doctor I liked” is quite reasonable. may be relevant. preexisting vulnerability. only to find that the goods are legitimately accompanied by a receipt. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. Not only might these provide a context for the injuries claimed. The response “My attorney told me not to” conveys its own obvious message. especially idiosyncratic history. 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. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task.. The interview took place in his basement recreation room. 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. He claimed to have full-fledged PTSD.50 THE PSYCHIATRIST AS EXPERT WITNESS. I . too. This history may represent the plaintiff ’s “thin skull” (i.
but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. then you get the case. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs.357 Magnum close to his ear. An apartment dweller sued her landlord for failing to respond to the infestation. 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. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. that is. perhaps so.Types of Typical Cases knew this because. High-Profile Cases At one point or another. the alleged malpractice. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. the nose of the plane fell into the harbor. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. It is. Initially. it turned out. or crime has generated publicity first. had been in the front row of seats just behind the break in the plane. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels. which the average member of the public really doesn’t understand. without warning. injury. There is a fundamental asymmetry about media coverage in almost every case. ate like a lumberjack. stoic fisherman. it seemed to me that this incident would induce PTSD in a stone statue. he saw a jagged metal edge and below that edge. the plaintiff or prosecutor can say anything. the former passenger was revealed as a serious. yet the observation is valid. you may be asked to review a case that has been extensively covered in the media before you have been retained. had no signs of trauma whatsoever. to get the actual data. This passenger. of course. I myself jumped in my chair. He gave the impression on interview that if you fired off a . who. however. Boston Harbor with freezing. the case certainly seemed meritorious in theory. On the surface of his story. looking straight down past his toes. don’t assume—examine. he would have said calmly. In a famous incident. As the “moving . not totally probative. the jury ultimately decides. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. This case also illustrates the maxim. On detailed examination. 51 This observation was potentially valuable and worth recording. usually not. He slept like a log. fellow passengers. dying. One of my cases raised this issue. on careful inquiry. unimaginative. therefore. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. He was strapped into his seat. but at incredibly high levels. and did not dream. and.
plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. In malpractice cases.” in this volume provides more reliable methods of publicizing your practice. In short. The defense attorneys must say “no comment” each time. Some attorneys may try. By doing this. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. A plaintiff can say to the media. and spill hot coffee over their thighs and sue McDonald’s. for example. there is no case until it is brought. None of this trumpeting means anything. SECOND EDITION parties.52 THE PSYCHIATRIST AS EXPERT WITNESS. you simply may be reading your newspaper before you are asked to consult on a case.” the attorneys have to create the case from scratch. Ninety-nine percent of the time. Therefore. consciously or unconsciously. the standard references the average reasonable . pushing the case for all it is worth. 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. (Chapter 9. lest your review should begin with a one-sided perspective. but so do a number—perhaps a greater number—of venal witnesses. rip off the covers in moving cars. because they don’t want to give away trial strategy. you have to be alert to this potential biasing factor and be aware of the media asymmetries.” In another case. for example. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. until it is proven in a court of law. but this principle may be readily overlooked in a media frenzy. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. to influence the public powerfully in advance. the defense attorneys cannot answer the media’s questions. “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. in hopes that some of that public will later become jurors. 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). selling testimony instead of time.) Another stigma of the hired gun is the counsel of perfection. however. of course. “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. Even though you may try to tune out the media.
” This testimony is a classic hired gun claim. the counter to such claims often begins with the phrase “Well. The following is a real-life sample: Examining attorney: Does the standard of care require restraint of this patient? Hired gun witness: When you have a patient who is this out of control and depressed. “They (the defendants) should have done more. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. but malpractice litigation hinges on what is required by the standard of care. 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.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Some experts believe that physicians are never wrong and always justify whatever the physicians do. . An even more malignant twist is the made-up or artificial standard. Waffles are evasive. it’s a very serious situation. Indeed. Anyone always could have done more.. Another variation on this theme is. The hired gun often advances a perfectionistic standard as though it were the average. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. in the real world..” Many “good ideas” theoretically might have contributed to the patient’s care. whereby the hired gun whips a standard out of thin air to justify his or her position in the case. I personally have never heard of or read that standard anywhere. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. “If the care had been adequate. For example. The real issue is: does the standard of care require more. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11). and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. but no one lives real life like that. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. the likely explanation is that the treaterexpert made it up to suit his views of this case.
It certainly should have been considered. he should have been [that is. he has taken in despair 10 lithiums some years back. In the following example. I am not in a position to tell you that that would be the only choice. of unpredictability. there is a lot of despair and a great deal of thought disorganization in the patient. goes all the way to [another city]. then committed suicide. the mental state and what’s gone on in that patient’s mind is very uncertain. an emergency petition ideally would have been. that this is a patient with some history of a. SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that. but that is the answer to a different question.54 THE PSYCHIATRIST AS EXPERT WITNESS. specifically. Getting the feel for how the waffle works takes a certain amount of reading of case material. 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. a patient had escaped from the hospital. actually. but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. we don’t know whether he stops or doesn’t stop and get [drug] or not. but. The entire answer took four full deposition pages. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. took some blood pressure pills one time in [city]. it seems nearly impossible to extract the actual opinion from the thicket of prose. Also note that the failure to consider a valid option indeed may constitute negligence. . Note that this entire chunk of testimony is one run-on sentence. and where I believe the standard of care was breached was that the patient. he gets frightened. Note how that witness actually avoids responding. a reasonable history. More to the point. Is that a yes or a no? In fact it is neither—it is a waffle. reasonably would have been. That was the answer in toto. Here is another example of a waffle on standard of care: Question: So you think after his discharge from [X Hospital] in [month] of [year]. the 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. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. and that is frequently the hallmark of the hired gun. rather than ideally. an hour before that or less signs a 3-day statement and then just disappears. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care.
foresight: the effect of outcome knowledge on judgment under uncertainty. Conceivably. and that includes they would be safe within or without the community. note that one cannot. 1983 Bursztajn H. Guilford Press. 3. I: malpractice prevention and the use of subjective data. New York. 2. 1981 Gutheil TG. Finally. 6. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. we must consider another possibility regarding the above examples. Science 211:453–458. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. Edited by Simon RI. Baltimore. . 2002. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. American Psychiatric Press. but that doesn’t mean that it’s without supervision. Gutheil TG. Brodsky A. Gutheil TG. Bursztajn H. 1991 Fischhoff B: Hindsight. 7. References 1. Kahneman D: The framing of decisions and the psychology of choice. II: clinical uses of legal standards in the interpretation of subjective data. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. a trend of such waffling answers in deposition does set off my hired gun detector. which makes sure the patient is safe within a structured environment. Williams & Wilkins. for better or for worse. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. et al: Decision-Making in Psychiatry and Law. with impunity. Int J Law Psychiatry 6:317–329. Shuman DW. Int J Law Psychiatry 6:331–350. In fairness. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. MD. 3rd Edition. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments.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. Bursztajn H. Yet. 1975 Tversky A. 4. DC. 2008 5. we may be dealing with an incompetence issue. I would prefer never to assume malice when incompetence would serve as an alternative scenario. Washington. J Exp Psychol 1:288–299.
Legal Studies Forum 9:41–53. American Psychiatric Press. Viglion DJ. THE PSYCHIATRIST AS EXPERT WITNESS. DC. J Psychiatry Law 28:5–18. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. 2005 Simon RI. Law and Human Behavior 19:493– 505. Bull Am Acad Psychiatry Law 21:23–36. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Washington. Psychiatry 1:26–28. Washington. J Am Acad Psychiatry Law 34:215–223. DC. 1987 11. 1993 . et al: Detection of malingering in competency to stand trial evaluations. Psychiatric Services 50:767–773. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation. 1999 Gutheil TG: Fundamentals of medical record documentation. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity.56 8. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. 1995 9. 2nd Edition. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. American Psychiatric Press. 1992 Gutheil TG: A confusion of tongues: competence. SECOND EDITION Gothard S.” J Am Acad Psychiatry Law 35:112–117. Meloy JR. 2000 10. psychiatry and the law. 2004 Knoll J. insanity. Bull Am Acad Psychiatry Law 20:409–418. Psychiatr Clin North Am 17:439–446. Gutheil TG: The problem of evasive testimony: the expert “waffle.
there is the period known as discovery. if any. preparing for what to expect from the various witnesses and documents. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. 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. Attorneys probe and define the limits of their cases. Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions.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. In both cases. Under some circumstances. Note that some jurisdictions practice “trial by ambush” without expert discovery. From the viewpoint of the expert. the attorney will likely write the actual prose of the 57 .
Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. it is always unethical. On occasion. However. In addition. If you discover this to have occurred. attorneys sometimes ask you for your tax returns of the last 5 years. and painting you into a corner. or some combination of the three: getting your opinion. Do not attempt to decide what is or is not objectionable yourself.58 THE PSYCHIATRIST AS EXPERT WITNESS. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2). SECOND EDITION answers for you. to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). For example. Opposing attorneys usually follow one of three agendas. obtaining admissions. review Chapter 5 in the companion volume to this book. that is an attorney’s function. either from clinical evidence or experience or from facts in the database. based on his or her interpretation of the rules of evidence. 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. The Psychiatrist in Court: A Survival Guide. an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. even worse. without retaining you at all. the interrogatory is sworn testimony. 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. read every such document before it is turned in. you do not want to be associated with this attorney. This approach saves you from having to retract misstatements on cross-examination. It is critical that everything in your interrogatory be something that you have already decided you are able to support. your attorney will advise you as to what requests for information or documents will be objected to or refused. guided by your input as to what you expect to testify to at trial. hyperbole hurts you. Depositions The second major area of discovery is the deposition. I advise you to withdraw from (or refuse to take) the case. . If you have never given a deposition or you feel a bit shaky about the procedure. reasoning that they can always modify their opinions at trial when the right questions are asked.
the plaintiff. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. 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).Discovery and Depositions 59 Getting Your Opinion First. or a full-fledged repeat deposition. depositions are occasionally. to empty your wordhoard. as a way of ensuring that your opinions may be brought out at trial. the attorney. the defendant. if any. however. admissions and concessions of points or . but not ideally. select rebuttal witnesses. as the Anglo-Saxons phrased it. In this latter context. the police. but this is a subintention within the larger discovery framework. Attorneys also stress that the deposition is their one chance to find out what you have to say. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. during the course of the deposition. a witness’s deposition or medical record that you had not seen before your own deposition. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. and deadlines may dictate this suboptimal condition. scheduling problems. taken before the entire database has been acquired or reviewed by the experts. This ploy usually can be defused by your attorney. Of course. The attorney can then prepare cross-examination. This information may or may not trigger a supplemental step for you in the form of an interrogatory. the attorney is not averse to discovering precisely those points that will help his or her side of the case. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. When you subsequently receive. and so on. 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. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. for instance. Just answer the question. On the other hand. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. you are ethically obligated to so inform your attorney. and so on. This discovery function is a completely legitimate task and one with which you should cooperate fully. over and above what has been conveyed in reports or interrogatories. time considerations. who is in turn obligated to inform the attorney on the other side of your new opinion. a telephone conference. inform his or her experts about facts or issues to pay attention to.
and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. not the mental status by itself. however. fairness. insanity. even though it was the preadmission history. For example. negligence. The answer was no. You are locked in to that testimony. much was made of this testimony. so that your opinion is constrained or limited in a way that decreases its impact. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. that is. Your Goals for the Deposition One scholar has described the witness’s goals as truth. of course. Accuracy addresses the clarity of your vision in relation to the known facts in the case. of course. competence. In a wrongful commitment case against the hospital. Truth. any contradiction is obviously damaging to your credibility: “You swore this now and that then. SECOND EDITION views detrimental to the other (i. or damages—the entire gamut of forensic possibilities. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. A patient was committed because of threats. under oath. At trial. your) side of the case. The most familiar variations include attempting to get you to generalize about psychiatry and ignore the differences among the schools of thought within the field. also under oath. to kill coworkers. The points may relate to guilt. based on paranoid-sounding content. Indeed. is the final standard. When you later give testimony in court. This procedure elicits sworn testimony. what are we to believe.e. that justified the admission..60 THE PSYCHIATRIST AS EXPERT WITNESS. 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. His mental status was not particularly demonstrative of symptoms of mental illness. although the history. raised many possibilities. he denied to the admitting physician that he had any violent intent. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. conceptually. On arrival at the hospital. many attorneys would view themselves as highly successful in this effort if they could only dilute the force of your opinion or obtain agreement with a point that is or even sounds close to a concession. . and accuracy (3).
it is an essential part of the evolution of a case and thus your role in it. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. and vigilant at all times. 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. Still others. alert. you were probably not paying sufficiently close attention. if more time turns out to be required. this also takes a toll on the court reporter. If you do not go home after a deposition feeling tired and drained. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. Prepare for this. intense concentration sustained over hours is hard work. focused. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. 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. Rather. To do your job. The expert should clear a full day for the deposition to be on the safe side. you must be rested. another deposition date can be scheduled. looking for dirt before even addressing the instant case. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. try to eliminate distractions. several factors urge clearing substantial blocks of time for deposition. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. aware of the serious weakness of the substantive aspects of their case. your opinions (and their limitations).Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours. Get enough sleep the night before the deposition. More details about this necessity are discussed later in this chapter. and your planned testimony. . Unfortunately. as noted above. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. Occasionally. will spend hours inching through the expert’s credentials. A small number of attorneys attempt to wear down the expert by sheer passage of time. however. hoping to hit the key points if only by accident. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”).
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. Second. 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. you can give a useful compound answer to a compound question. they have to enter into a dialogue with their patient. warning. And the third part of your question is. or you knew and didn’t act. therefore. Question (attorney for staff member): Knowing what we know today. Note. If there is the slightest doubt. in the following example. let me answer all three components. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. 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. A more effective answer might have been. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. 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. “The patient gave no sign. his act could . or evidence of a propensity for violence. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now. On rare occasions. which I codirect. I am serious. ask that it be broken down. in order to determine competence. so you were negligent. ask to hear it again or have it read back.] Answer (by case manager): I don’t think I would agree with that.62 THE PSYCHIATRIST AS EXPERT WITNESS. yes. it is serious. Question: So. 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. I don’t—I wouldn’t agree with you there. so you were negligent. no. First. yes. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. If the question is compound or complex. but it is quite risky and may compromise clarity. the case manager’s lack of understanding might be negligent.
Note that an excellent and self-contained answer to such a question or line of questions is. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder.] Answer: Gee. For example.Discovery and Depositions 63 neither be foreseen nor be prevented. Gee. not what others have told you? [The attorney tightens that very screw. Obviously. that the witness specifically remembers such a detail.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. not the only possibilities. not the individual element. a patient with apparent bipolar disorder challenged an involuntary commitment. and too extensive an answer to deposition questions. moreover. no. Question: Did you observe [patient] attending those meetings.” would be perfectly okay. challenge. making a chart entry based on what you were told by other staff —for example. “I don’t recall.] Answer: Right. of course. Clinical data also can be cut into discrete segments to attempt to refute. you write down what you have observed. the witness should decline to answer yes or no to such a question. paranoia. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. or did you make that entry based on information given to you by others? [These are.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. 5 years and hundreds of patients later. . the totality of symptoms did so). The deposing attorney inquired. When seen. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. It is unlikely. social obnoxiousness in various ways. in a vacuum. In addition. too discursive. right. But this witness has set a standard for herself: “hope for truth. The following excerpt of testimony given by a naive fact witness.”] Question: Is that the procedure in which you make notes. or weaken certain conclusions (4). did not constitute sufficient evidence of bipolar disorder (although.] Yet another deposition tactic is what I call gerrymandering the data. the patient manifested rapid press of speech. testifying 5 years after a suicide. which might be used against her nursing colleagues. reveals the hazards of too effusive. and grandiosity. [The witness sets her own standard of care. from a previous shift—is universal practice. any good nurse does that. of course. the answer. I sure hope I saw him because I usually don’t write things unless they are true. vulgarity. “In a vacuum. [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.
Correct any errors.) Your answers must be verbal and aloud. 3. not your glib response in the deposition room. immediately correct . shakes.” or a short narrative response that contains the question so that the response. your attorney may be trying to call your attention to something. Answers Deposition answers are drawn from a surprisingly shallow pool. but sometimes they do so deliberately to distract you or to break your concentration. or you might infer something useful from the type of objection posed. Giving the stenographer your business card before the deposition is a highly useful courtesy. a garbled record from too-fast speech wastes everyone’s time and money. If your concentration slips and you give an answer that you later believe was wrong or even misleading. review the corresponding discussions in the companion volume. 2. They are.” “I don’t know. whose written record will be the actual form of the deposition in all future contexts. each speaker should finish before the other begins. who cannot take down two simultaneous conversations and produce a clear record. SECOND EDITION The Pregnant Pause After the question is asked. incomprehensible questions. nods.” reflect a moment on why the time frame might be important in relation to that particular question. in effect. and the like. “Objection.” “no. the trap of double negatives in the questions. drugs. because the stenographer cannot record winks. Also remember to listen carefully to the objection. Other useful basic tips include the following: 1. lack of time frame. and the importance of speaking slowly. Overlapping dialogue is awkward or impossible for the reporter. (See also Chapter 5 in the companion volume. instruct you not to answer.” “I don’t recall. insist on a time frame. and so on. and other myoclonic responses. Spell unusual names. Recall that the written transcript is the durable version of the deposition. shrugs. Be careful about overlapping speech. usually accidentally. pause a moment. cannot be quoted out of context. in essence. not only for the spelling of your name but for contact after the deposition for questions. Do not tolerate this interruption. Some key points made in that volume are the hazards of guessing. Pausing allows you to replay the question in your head and to think about your answer.64 THE PSYCHIATRIST AS EXPERT WITNESS. clearly. in the belief that your pause means you have finished. If any of these summary phrases do not trigger recognition. If your attorney says. terms. Insist on finishing your answer to your satisfaction. Speak slower than usual. The Psychiatrist in Court: A Survival Guide. “yes. Attorneys may sometimes interrupt your answer. The pause also allows other attorneys to object. and carefully for the stenographer.
I’d be lying. When in doubt. (The question of coaching is more extensively addressed elsewhere [5. where you are retained by the defense. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different.If I said that. the entire deposition takes place under oath and under penalty of perjury. However. First. the deposing attorney may ask. the deposition may be paused for that consultation. As a deponent witness. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. 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.” (3.” Of course. Therefore. Second. . Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. this may be phrased as when to throw away the “throwaway” questions. No. but leaving the error on the record means having to retract it on cross-examination.) When to Throw It Away In my consultative experience. . . the doctor might answer: “Well. Therefore.6]. but I can’t say that any of them were [sic] precisely like this one. To err is human. because no two fractures are exactly alike. .To tell the truth. . would you agree that a patient’s sui- . I tell a lie.. “Doctor. for example. 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. . An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. Two points about this problem should be kept in mind. F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. exercise this option. Therefore.Discovery and Depositions 65 it on the record. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. pp.. if you are concerned specifically about a matter of privilege that may govern your answer.. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one. In a suicide malpractice case. he could accurately answer in the negative.
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. thinking about dinner and work to do later. and move on. but you know enough not to get involved in that “thing. in the colorful argot of the national pastime. The moral here.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. may attempt to get some off-the-record insight literally in the doorway. Occasionally. not unlike some patients in psychotherapy whose doorway pauses—“oh. and we’ll be done. . influenced by the TV show Columbo. have some water. Doctor. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. an attorney. is “It ain’t over till it’s over. With an encouraging smile the attorney looks expectantly at you without saying anything. now begins to fire rapidly at the witness. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. still.66 THE PSYCHIATRIST AS EXPERT WITNESS. wait until it gets ridiculous. the novice witness relaxes and loses focus. of course. Subjected to the silent treatment. make the concession. The attorney asks a question. having inexplicably found his or her second wind. check your watch. by the way.” Wait to relax only after the stenographer has put away the machinery. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. on the record. throw it away. and you answer it. When the answer is that clear. an attorney may look ostentatiously at his or her watch and say. Quibbling over the possible exceptions or equivocating in some way helps no one. “Just a few more questions. Your retaining attorney may also get into the act.” At that point. just one more thing”—contain vital material. It is not the defendant’s negligence that is at stake in this situation but your credibility. but the lack of the note did not cause the suicide. Remember that the failure to write something down may be below the standard of care. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes.
A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. No expert is expected to be an expert in everything or to remember everything. Note how the first question was a total loss and had to be rejected completely. that we can’t isolate ourselves with notions of “I’m not part of our society.” in a manner to ignore those feelings.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. but I’m in favor of sensitivity. This method sometimes involves carefully answering the question that the attorney should have asked. make sure you include the question in your answer on those occasions so that no one is misled. using categorization.. and answer that part.and the answer to that question is .” . Some questions are curious because the attorney appears to be flailing at. 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).. For example. rather than asking about. they often fail to realize that they do not have forensic evidence to back up those notions. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can.... “I don’t know” or “I don’t remember” is a fully appropriate answer. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert..” Avoid the narcissistic trap of “I can answer anything. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. “I understand you to be asking me. therefore. and this response is perfectly appropriate. 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. isn’t it a greater hazard to you as a person doing those things—and isn’t it a fact your duty at that point as a psychiatrist arises [sic] to a higher level because of your knowledge of these conditions? Answer: You lost me. The only valid answer is that those questions are outside your area of expertise. I find your question a little confusing. as is “That is outside my area of expertise. if you’re grossly suicidal and you have access to guns and drugs and alcohol.
more pedantic. This fight is an attorney-to-attorney matter. meaning that you assume that the documents are what they seem to be. unfailingly polite. In the specific malpractice context. Because the stenographer (and not the jury) is your audience. never losing your cool. and far less friendly and instructional than it would to a jury. The only vital difference is the way in which you speak. but your belief might interfere with your detection of negligence in this case. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. you will be addressing him or her in slow. the parties are really the parties in the case. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. If the admission note turns out to be a forgery. that is not your problem. and demonstrate other regressive behavior. . 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. “Did you make any assumptions about the case before you began?” You may be tempted to say. you assumed it was a medical record in good faith. or facilitate calm negotiation.” This position of timeless patience puts the onus appropriately on the attorney to move things along. you will make it worse. more boring. so I assumed that they knew what they were doing. stand up in their chairs. In one deposition. stay seated and keep quiet until it is over.68 THE PSYCHIATRIST AS EXPERT WITNESS. scream at each other. Assumptions The deposing attorney may ask. threaten to go before the judge to plead their points. That is as it should be.” as it were). Your attitude should convey. mediate the debate. A situation that.” This assumption is dangerous because it suggests bias. and so on. more technical. heretofore quiet and almost appearing bored by the proceedings. this implies arranging coverage for your patients should a crisis occur. for example. The two sides. authentic or merely theatrical. occurs rarely may throw the novice witness: a roaring fight between attorneys. “I can continue until midnight. should that become necessary. clear. When everyone is through. Do not do anything. firm. the next question will be coming your way. no matter how generic or basic it may seem. fortunately. after which the expert examines for evidence either way. careful speech that may be more formal. There are good hospitals out there. I know that’s a good hospital. As noted. Clinicians may be tempted to call on their clinical skills to temper violence. “Well. The only assumption you should make is good faith. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. and you might well know some of them. clear.
the disclaimer at the front disavows its applicability in many forensic contexts.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. However. may imitate the attorneys by overvaluing these texts and ignoring their limits. and DSM gives the formal criteria for diagnoses. the parallel assumption would be “Sane. Novice experts. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. no one wrote a previously published book or article with the exact case in mind in which you are involved. desperate for stable islands of consensus in the tossing seas of uncertainty. Remember. 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. In one limited sense. For example. including those parts which conflict with your testimony. you may be asked to supply the names of authoritative texts yourself. Be sure to maintain a sense of proportion about these references and their utility. Most modern books and articles have multiple authors or editors. and innocent until proven otherwise. to make an informal clinical diagnosis. Comparably. merely official. Alternatively. Moreover. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. you cannot take the position that no text is authoritative.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. yet the clinical diagnosis and treatment still may meet the standard of care. inescapably. But both. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. competent. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries.” Learned Treatises In the course of a deposition. both sources are “authoritative”: PDR contains the actual package insert information about drugs. these publications are not uniform in authoritativeness. but ask to be shown to which one the attorney is referring. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text. of course. note whether you agree or disagree in general with the stated points. chapter. Some experts respond that the DSMs are not authoritative. have their limits. In a criminal context. After reading the entry carefully. this is a matter of risk management for the pharmaceutical companies. the examining attorney may ask you if a specific text (book. or article) is authoritative in the field or in the subject of the current case. then.
In contrast. police reports. The latter may be privileged. check the accuracy of any numbers (9). Meet with the attorney and review the issues. The Video Deposition A modern wrinkle on the procedure is the video deposition.A good rule to work by is that the statements you make in court should be of the same quality and reflect the same scholarship as if you were making them at a scientific seminar or publishing them in a reputable journal. the camera is . summaries.. review your files as diligently as if you were going to trial.. Under some circumstances. some discuss details of trial strategy in their letters to you. p. actually visiting a site may be important. Have your attorney review your case file for any items that might be considered work product and thus under a privilege.e. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent.70 THE PSYCHIATRIST AS EXPERT WITNESS. and so on so that you can buttress all your conclusions with specific elements from the database. rehearse—the details of the links between your conclusions and the facts. Give both (or several) points of view if they exist. (8. If you are really unsure about something.. In addition. In some cases. outlines or summaries for quick reference) may be subject to subpoena for the deposition. You must exercise some care in these discussions as they may be discoverable. 571) Final Predeposition Preparations Before the actual deposition. and you may have to furnish copies to opposing counsel. this conversation is protected. it is wise to review—and if necessary.. Obviously. you also may want to meet one more time with the attorney’s client before the deposition. or “cheat sheets” (i. you will need to review a wide array of information. Frankly admit if anything has been removed from your file. laboratory values. but this is not your problem. record notes. remember to go to bed early. Any notes. SECOND EDITION When quoting the literature. consult your own attorney. Many attorneys anticipate this problem and send only bland correspondence. The usual audience of the standard deposition is the stenographer. Also. Arrange to do so with the attorney sufficiently early. statements. Above all. Your attorney then can communicate with the retaining attorney. in the video deposition. well before the deposition. be balanced and accurate. let the attorneys determine whether it is discoverable. especially if details remain unclear or if over time the clinical condition has changed or evolved. whose transcript will endure and be used for any impeachment possible.
at times. the only vehicle) for the expert’s testimony. checking for errors and typos.” and rendering. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. the expert may wish to retain a copy for teaching purposes after the case is over. say. As in the trial described in the next chapter. or the deposing attorney for distribution to the parties. jargon-free. not at the ponderous. If the deposition has been particularly instructive or noteworthy. Most court reporters are extremely good at their jobs. who may see the video displayed in addition to—or. This approach risks eventually being papered out of house and home. “irresponsible” as “responsible” are small changes with profound results. representing the jury. After the Deposition Always ask to read and sign the deposition. 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. Remember to keep your language level. At least one copy of the transcript is returned either to the court reporter. read it very carefully. you should try to direct your gaze toward the camera lens. juror-friendly. this time in a permanent record. careful. “It’s an us-and-them situation” was rendered “It’s an S and M situation. of the word “not. . the deponent expert should always ask for a personal copy to review in preparation for trial. My personal favorite is when the phrase. and must beware of inappropriate gestures and personal bodily attentions. and pedantic level of the ordinary deposition but in basic. The video deposition presents a number of possible pitfalls. but errors can creep in. the video may also serve as the vehicle (in this case. but under some circumstances the notarization can be waived. the retaining attorney. In the current economy. When you receive the deposition transcript. If the expert is known to be unavailable for the trial dates. Recall that omission of a comma. and the deponent signs under pains and penalties of perjury. instead of—your personal appearance in court.Discovery and Depositions 71 the audience. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. trial-suited English. you are under constant scrutiny.” 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.
8. SECOND EDITION References 1. South Bend. Defense Counsel Journal 4:174–179. MA. Simon RI. 2005 Suplee DR. 1993 Malone DM. 2007 Gutheil TG: Reflections on coaching by attorneys. MD. 6. 2001 Baker TO: Operator’s Manual for a Witness Chair. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. 7. Vols 1 and 2. Child Abuse Negl 17:571–572. IN. 6th Edition. J Am Acad Psychiatry Law 34:18–22. Baltimore. J Am Acad Psychiatry Law 29:313–318. Med Econ 82:45–48. 1983 Gutheil TG. Current Psychiatry 7: 25–28. legal fictions. Milwaukee. 2003 Kaplan HI. Defense Research Institute. Simon RI. The Practical Lawyer 39:55–63. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. 2006 Gutheil TG. 1996 2. WI. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. National Institute for Trial Advocacy. MA.72 THE PSYCHIATRIST AS EXPERT WITNESS. 3. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Baltimore. Lippincott. Willliams & Wilkins. 1999 Babitsky S. J Am Acad Psychiatry Law 31:6–9. 5. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. MD. Mills MJ: Legal conceptualization. The Practical Lawyer 33:69– 78. 9. SEAK. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. Bull Am Acad Psychiatry Law 10:17–27. 36. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. Suggested Readings Babitsky S. 1987 . 4. Falmouth. 1982 Gutheil TG. Falmouth. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. SEAK. 39–40. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Williams & Wilkins. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. 2008 Rice B: Malpractice: how to survive a deposition. Woodruff MS: Deposing experts. Gutheil TG.
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. Nevertheless. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public.CHAPTER 6 The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed. review Chapter 10 (“The Expert on the Road”) in this volume before setting out. examining the companion volume. If you are testifying away from home. In this chapter. Preparation. the same six Ps should be reviewed but with a slightly different emphasis. I review some of the basic courtroom procedures. and they are the subject of this chapter. I addressed the six Ps of trial preparation. pled out. and devising means of locating key passages in the database quickly. reviewing and analyzing opposing expert testimony and planning responses or rebuttal. If you are uncertain about the guidelines for trial preparation. is recommended as an orientation. For experts who have spent little or no time in court. review that chapter. For the expert witness. Planning. trials do come around every so often. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. 73 . 1. The Psychiatrist in Court: A Survival Guide. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. For the expert. 2. settled.
and all such details. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. Build in contingency plans for the possibility that the trial extends into the next day at least. On cross-examination. 6. 5. the location of the trial. Pretrial conference. The pretrial conference is probably one of the most important stages of preparation for trial. 4. location of restrooms. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case.74 THE PSYCHIATRIST AS EXPERT WITNESS. you need to know through choice and practice how you will convey your opinion to the jury. 3. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. You also need to hear how the trial is going. Define the limits of your testimony. parking arrangements. practice sketching any visual aids you will need for the courtroom blackboard. Pitfalls. and the data relevant to the other side of the case. Even more distressing. Clarify in your own mind how you plan to deal with questions about your fees. some attorneys for the other side have been known to stall or drag out their questioning of you for the explicit purpose of rattling you with the need to make stay-over arrangements. 7. If you have a disability. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion). Most of these matters are best handled on direct examination where some measure of control can be exercised. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. and the expected cross-examination. Clarify and confirm your travel arrangements. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. Confirm travel arrangements and other details. Insist on this conference if the attorney is equivocal or resistant to the idea. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration. Consider taking a taxicab to local courts to avoid parking hassles. and what the emotional climate of the courtroom is. and your past experiences. the contradictory evidence. Practice. . and select useful examples from your experience to make central points. You should rehearse ways of expressing information to the jury. the floor of the courthouse on which the courtroom is located. It is not enough to know the database. your publications (especially those relevant to this case). the relevant literature. Presentation. the unknown issues. what the judge is like. Review the weaknesses in your opinion. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. what previous testimony has been given.
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. you will find it valuable to locate the restrooms and telephones. may occur prior to trial (occasionally. When you are allowed to hear the testimony of other witnesses. Practical Matters Preparing to Go On Many courts sequester witnesses. experts are not allowed to be present in court for the testimony of any other witnesses. and to ensure that recognized approaches to the subject matter are chosen. much valuable information can be gained and the tone of the room determined.S. 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. where the jury will be and what . Such a hearing. Once in the courtroom. rise for the judge’s entrance. to be able to articulate the bases and reasoning behind those conclusions. Before going into the courtroom.The Expert in Trial 75 The Daubert Challenge In an effort to ensure the validity of expert testimony and its underlying methodology and to prevent “junk science” (unsupported or idiosyncratic theory) from entering into the court’s deliberations. Supreme Court case. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. that is. Wait in the public seats until actually called to the stand. named for the plaintiff in an important U. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base.e. From the viewpoint of the expert. Regrettably. its methodologic reliability. but if you are the only one standing. this kind of potentially valuable hearing and screening device can also be abused (2).. The topic requires more extensive discussion (1). which are sometimes in obscure locations in older courthouses. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. sit down. particularly experts. 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. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. and whether the testimony will fulfill the legally required expert function in the court.
Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court. even for experienced experts. because his or her opinion is being given from memory. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. only a copy of the expert report that is already in evidence or only a curriculum vitae). The downside is the need to remember a vast amount of detail and to recall where. Key documents might include my report and interview notes.76 THE PSYCHIATRIST AS EXPERT WITNESS. a particular citation is. When no documents are before you on the stand. you may provide an opportunity for the cross-examiner to rummage through your files (although the effectiveness of this procedure is seriously undermined by the fact that it inevitably puts the jury to sleep and may alienate them). Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. Recall that in almost every case. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. Each preference has its pros and cons.g. so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. and 3) you may become lost in excessive data. tabs. the attorneys will have it). to have on the witness stand the entire stack of documents pertinent to the case or whether they prefer to have nothing on the stand or almost nothing (e. Note that some anxiety is normal. and ensures the accuracy of your recollection by direct verification. SECOND EDITION the room looks like from the hot seat). 2) as noted. The expert appears more confident and knowledgeable about the case. essential medical records . dog-eared pages. My own preference is to strip down what is brought. The expert should determine which of these two approaches is more suitable. On the other hand.. Note again the importance of having and practicing a plan of organization. if needed. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. having the whole database on the stand permits greater support of your testimony with specific data from the documents. yellow self-stick notes. in an often extensive chart or deposition. while the experts are testifying. the opposing attorney cannot search through them for something with which to impeach your testimony. as are all the substantiating data. What to Bring Experts and their retaining attorneys vary in whether they prefer. or your own table of contents devised for more extensive documents. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet.
and similar data. ornamentation. Avoid either ostentation. showing off how busy you are and how court is taking you away from really important matters. in the sense that you are usually under observation by someone—the bailiff. the bailiff usually will keep it filled. or carafe of water is an excellent idea. I can use my table together with the attorney’s copy of the deposition. perhaps comfort should rule. during breaks. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. 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. Indeed. testifying is thirst-provoking work. highlighting marker. the defendant or . 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. If I need the actual page or quote. Above all. 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. affidavits. or if you must. Do not wear or carry your cellular telephone or beeper. Arranging for a cup. what you wear should fit well and be well broken in. Stick to the conservative business mien. depositions. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. if you must. Finally. This table of contents enables speedy reference to key facts. A cough drop or throat lozenge will moisten your mouth while placing less of a burden on your bladder but may create a speech impediment. and cutting-edge high-drama fashion or excessive informality. For depositions of less central players in the case. ensure that they are turned off. your mode of dress should convey the fact that you are a professional in the courtroom on business.The Expert in Trial 77 (pruned to relevant periods if needed). I take to the stand a one-page table of contents (i..e. Demeanor Being on the stand is not unlike being filmed. do not wear new clothes. If you are completely uncertain about what to wear to court. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. glass. eccentricity. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. A handy pen or pencil. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. the bored juror. and check in. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. and you will not go wrong.
Make your point because it matters. There is no reason for a teacher to get mad. as follows. sneering. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. however. impugns you. Your identity on the stand is that of teacher. Such reactions may be misconstrued as disrespectful. If the attorney is hostile. Attorney (with a slight sneer): Isn’t it true. and you want the jury to understand it. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. such as rolling your eyes at the jury when a particularly fatuous question is asked. Beware of “involuntary” gestures. or degrades you. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. flip. If you become huffy or outright mad.78 THE PSYCHIATRIST AS EXPERT WITNESS. not of the attorney in question. fluffy. and stuffy. SECOND EDITION plaintiff. and you are unfailingly polite. or obtuse to the seriousness of the issue. A witness with an apparent chip on his or her shoulder (and in court. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. humor may seem disrespectful. Scholars recommend keeping the front of your body open (by not folding your arms. it is important. not credible. 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. you know or should know that it is not personal and has nothing to do with you. demeans you. for example) as body language consistent with candor. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. Even when an attorney attacks you. but of the jury or the entire process. attorney moves on to another subject]. an attorney—at all times. . obnoxiously facetious. Be clear. Doctor?”). you win the exchange. With discretion. Without such alliance. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. get interested in what you have to say and stay interested. Doctor. Avoid personal body attentions (such as scratching) as much as possible. all such chips are apparent) is particularly unconvincing. humor directed against yourself may show that you do not take yourself too seriously. you are likely to be too involved and therefore possibly biased. and sarcastic. even when someone else is speaking.
” Make your point as concretely as necessary and back it up with hard data from the database. concede a remote possibility and move on. Speak to the most distant juror to be sure your voice is audible. explain. It is not the same as “certainty” (100% sure). adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. a juror who cannot hear may be hesitant about saying so in open court. Direct your extended remarks to the jury.The Expert in Trial 79 Being fluffy means being too abstract. Testimony Direct testimony should unfold in an organized manner. and “waffley. to agree that some things happen sometimes. they are usually poorly received by juries. evasive. the concept is sometimes rendered mathematically as a 51% certainty. . project. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). Haggling with the attorney over a tiny abstruse point. or respond to jargon. not just a classroom exercise. If you must use.. and to admit that rules have exceptions. They are not excessively academic. pedantic. to accept a possibility as such (almost anything is “possible. blunts your argument and weakens your credibility. making roving eye contact with various jurors whenever possible. If a microphone is available. Keep in mind the expert’s role in telling the story in a coherent. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. the trial is a human process. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. ask if you can be heard by the farthest ranks of jurors. Finally. In general. the most common beginner’s error in the courtroom is the inability to “throw it away. If no microphone is provided. not stuffy. If in any doubt about your speech volume. avoid discussing unconscious dynamics unless absolutely needed for your point. good teachers are lively and interesting. as a result of your careful and thoughtful preparation with your attorney.” but only a few things reach reasonable medical certainty). jargon laden. to concede a point that really doesn’t mean much. but without intimidating staring. understandable manner that brings the details together in a recognizable gestalt.e. yet may ultimately give up on your testimony after straining to hear for too long. Because jurisdictions differ as to the precise definition. what fools these jargonists be).” that is. theoretical. As occurs during the depositions noted in the previous chapter. or waxing argumentative rather than instructive. Although you are a teacher. or prone to nit-picking. even inhibited souls will nod if they can hear.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Unlike formal, even pedantic deposition language, which is directed to the court reporter and aims at clarity above all to develop a valid transcript, trial language is juror-friendly, basic, and may be more extensive than the austere, brief answers from deposition. Asked an open-ended question (“Can you describe that process?”), answer until the matter is complete; if the jury appears to be losing focus, or if you see the dreaded “eye glaze” sign, wrap up your answer and wait for the next question. Remember that no matter how intensely you may feel about anything, you must scrupulously avoid any of the mildest forms of profanity or blasphemy, even as rhetorical devices. Recall that, in some parts of the country, and for some jurors, saying “Lord, no!” for emphasis in answer to a question involves breaking one of the Ten Commandments. There are various reasons for the expert to use a blackboard, marker board, or flip chart (for further discussion, see Chapter 6 in The Psychiatrist in Court: A Survival Guide). The expert should prepare some information that can be presented effectively by using one of these aids, if only to break the talking-heads monotony of witness after witness. Make sure you can be heard when using the blackboard, marker board, or flip chart because, if there is a microphone, you will now be away from it. Do not be ashamed to boom it out. Similarly, be sure to write large enough to be read by the farthest juror; ask the far ranks if they can see the first letter or picture you write or draw. If not, increase the scale. Novice experts may not be aware that the witness who faces the blackboard and mumbles the sound-track accompaniment to his micrographia is not only ineffective but also actively alienating, possibly even insulting, the jury. The companion volume makes the following point:
In addition, when you pick up a piece of chalk in your hand and you stand in front of the blackboard, you become, as a transference object, the most trusted figure in common human experience: the teacher. The teacher knows. The juror may not know what the capital of Virginia is—or what chlorpromazine is used for—but knows the teacher knows. The power of the image transcends what you actually draw; what counts is the apparent effort to get your point across, because juries respond to the idea that you are trying to help them understand. (3, p. 62)
When responding to cross-examination, maintain the identical level of interest, animation, politeness, and responsiveness as you demonstrated on direct examination (although you are allowed to become more alert). The expert who is warm, winning, and discursive on direct examination only to turn crabbed, argumentative, defensive, and guarded on cross-examination is communicating only bias. You are telling the truth; what difference does it make which side is asking the questions? The hostile, attacking attorney who
The Expert in Trial
meets with your unfailing politeness and persistent civility is perpetrating suicide, not homicide. If either side asks a genuinely excellent question, say so but only if you mean it. Answering cross-examination questions does not require that you help out the attorney with various possible misunderstandings he or she may have about psychiatry; just answer the question. The only exception to this rule is when so profound a misunderstanding of some fact is taking place that for you to answer the question would merely precipitate and perpetuate a French farce situation of two parties on totally different wavelengths; this situation is not funny in court. Clarify the point, then wait for the next question.
Some experts develop a code with their attorney to aid covering certain points brought out on cross-examination. For example, expert and attorney may agree that if the expert prefaces an answer on cross-examination with, “Well, that’s an interesting point...,” it means that the expert wishes to be asked about the issue on redirect. Such an arrangement may be considered, but in practice it may be more cumbersome and distracting than it is worth. In a personal communication (K. Lipez, November 1996), an experienced judge noted that his opinion of an expert falls if the expert has failed to anticipate, and seems unprepared for, an obvious line of questioning. For example, in a criminal trial with a proposed insanity defense, the question of malingering is highly relevant. An expert who seems surprised at this issue being brought out on cross-examination reveals serious lacunae in understanding the forensic issues involved. The same judge cautioned against too facile a psychiatric or psychological explanation of human behavior. The posture that everything can be explained (or even worse, “I can explain everything”) is unconvincing to juries and may even imply that the examinee has succeeded in manipulating the psychiatrist. Finally, I suggest giving up the fantasy of being able to predict entirely the effect of what you say on the jury: the jury will decide how the jury will decide. In a case in which a psychiatrist was being sued for malpractice in a patient’s suicide, I gave extensive defense testimony and remarked, strictly in passing, that, although it would not be ethical to give my own independent diagnosis—because I had not seen the patient—the diagnosis given by those who had seen the patient was fully consistent with the recorded symptoms. A poll of the jury after the defense verdict revealed that the jury had been impressed and perhaps even swayed by the fact that the only witnesses who used the word ethical were I and the physician-defendant.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
An especially sticky and dismaying problem, fortunately not that common, is the situation wherein the attorney has misunderstood some fundamental clinical issue, and neither he or she nor you has realized that this misunderstanding exists. I was testifying for the defense before a licensing board in a sexual misconduct complaint. In the middle of direct examination, the attorney developed a line of questioning, with which I was implicitly asked to agree, that appeared based on the theory that because the patient (whom I hadn’t seen) evinced borderline personality disorder (BPD), the claim was likely to be false. (This conclusion represents an unfortunate misperception of the findings in an article of mine . In fact, given the actual frequency of sexual misconduct complaints by BPD patients against their therapists, patients with BPD are statistically more likely to be initiators of true claims than false ones.) Horrified at this evolving debacle and unable to stop it or even comment on it until the next break, I took refuge where all witnesses in such a spot should take it: the absolute narrow truth. The attorney might catch on or might not, might be baffled or might not, might be annoyed with you afterward or might not, but those are not your problems. The oath always provides sanctuary in a storm. A similar dilemma faces the testifying expert when some significant fact is revealed for the first time during trial testimony—a fact that changes your opinion. Do not panic and feel guilty, abashed, or inadequate. This revelation may be the lawyer’s lapse, but it is not your problem. Your job is to tell the truth; if the facts substantively change, an ethical expert’s opinion would be expected to change.
Remember to keep your testimony basic and jargon free. Illustrate your points with analogies and metaphors that you believe the average jury will follow. The following is an example of how you might discuss in court the mechanism of action of a selective serotonin reuptake inhibitor:
You know that the spark plugs on your car work by sending a spark across a narrow gap (show by using your fingers). Well, the nerves in your nervous system, including the nerves that control your mood, communicate in the same way (sketch a synapse). The upstream nerve sends an electrical current (draw a lightning bolt) down to this spark gap called a synapse (write word on board), and when it gets there, the current releases little blobs of chemicals like tiny water balloons. These float across the spark gap and hit certain “hot buttons” on the end of the downstream nerve and set off the next electrical current (draw another lightning bolt in the downstream nerve). Now that these chemicals are out there, how do you turn them off for the next bolt? The upstream nerve sucks them back up like a vacuum cleaner, and the system is ready for the next nerve impulse. Now this medication blocks
” preferably said in a mildly contemptuous tone. the dirt stays on the floor. the best cross-examination is. any testimony from this witness would be bought and meaningless. and slavishly but perfectly appropriately. the jury usually appreciates being given the “inside story. it is numbing to a jury.The Expert in Trial (draw a barrier) this process.” but this appreciation is lost if the jury cannot understand or follow your description. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions. The jury hears the testimony twice—an aid to both memory and persuasion. the chemicals stay in the spark gap and keep working so that your mood is lifted. “I have no questions for this witness. “I don’t care to waste my time on this whore. 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. even if the technical details are lost in the shuffle. What will cross-examination be like? What is the jury to make of this apparent hesitancy and doubt? Remember also that—as is clearly seen in that excerpt—the court reporter is entitled to.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. just like putting your hand over the vacuum nozzle. as if to convey. some scholars assert. Consider practicing such a description with your attorney or colleagues or friends. The expert is on direct examination by his own retaining attorney. This is a powerful argument for at least organizing your thoughts before you begin to testify. As you can grasp by merely reading this response aloud. and throat clear that you emit on the stand. Recall that this is direct examination by his own retaining attorney. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. . do not underestimate juries. grunt. 83 Although this mode of explanation may seem cumbersome.” Realistically. In the same way. Respect the juror. may record every pause. I have been impressed by their ability to grasp what is at issue. and the expert has theoretically prepared to tell the story in a coherent manner. The hazards of lack of practice are revealed by this following segment from an actual murder trial. That is how this kind of antidepressant or mood elevator works. such an avoidance of cross-examination is sound trial strategy. Adventures in Cross-Examination For experienced experts. stutter. Over the years. depressed— um—and seeking help. Um—as the events became closer to the—um—incident itself [the murder]. if you do that.
forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. the question answers itself ). however. First.. “that’s generally true” and you may be too flustered to challenge the action. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination.e. interrogatory. which may be asked on cross. can they not?” • “Another expert might come to a different conclusion. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). no problem. never ask a question to which you do not already know the answer.” .”) or exhibitionism (“Watch me shine!”). but in this instance it is not. the attorney’s wish or need to have the client see the attorney doing something. equivocating hurts you.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. Doctor?” The only possible truthful answer to all the aforementioned questions is yes. “That’s generally true. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. ask only questions to which only one answer is possible (fittingly.84 THE PSYCHIATRIST AS EXPERT WITNESS. deposition. The attorney may know the answer to a particular question from the expert’s report. or alternatively. what you say is often true in other cases.. Throw it away. The tight rein on which you are held may make it difficult to get your opinion out there. SECOND EDITION Most often. It is better to say. Even those attorneys who opt to engage in cross-examination are usually (but. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony. Instead. not always) aware of two fundamental principles that should guide this activity. The following are some examples of the last (all are leading questions. attorneys do not perform this simple but effective maneuver.” are almost always answered yes on the theory that almost anything is possible). questions beginning “Is it possible. If you want to say. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. surprisingly.. “Although the present case is a clear exception to that rule.” the attorney may move on to the next question after you have said. isn’t that right. the attorney’s competitive strivings with the opposing attorney or firm. or publications. the attorney asks closed questions. such as the previously listed leading questions. and even the attorney’s competitive feelings directed toward the expert. or the answer may be obvious from the question (i.
to be sure you are clear about the question. Practically. consequently. Scholars liken agreeing to this either-or approach to signing a blank check. this type of questioning means that you have only three answers available: “yes. and to allow your attorney to object. if not. If either will do so. the attorney may quote something that you wrote or lectured on. At times. a judge may even decide to declare a recess: “While you are thinking.” Listen with intense attention to the question.” and do so. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. Doctor. or have you dozed off? It is best to state. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . and a mere yes or no may fail to convey the “whole truth. a question will require more time for prolonged thought or searching of your memory. to consider your answer carefully. some attorneys advise not discussing your testimony. At such moments. After Rodin Pause briefly before answering each question to allow replay of the query in your mind.” “no.” The break gives you ample time to think. We’ll reconvene in 15 minutes. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. “I’m going to take a moment to think about that. we are going to take our midmorning break right now. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. Breaks During breaks that occur in the middle of cross-examination. The key word is truthfully. You took an oath to tell the whole truth. Quotes On cross-examination. Always ask to see the context if you do not immediately and completely recall it. and think seriously about whether yes or no will represent the whole truth. say it.” This response may be foreclosed by the judge directing you to answer anyway. 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. state that you cannot answer yes or no. some sources suggest answering at the outset.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. if needed.
Later. incomplete. . is your actual trial testimony. even worse. I recommend avoiding eating heavily. Now you must testify on the witness stand. Use your own judgment and knowledge of your biorhythms. as a “preliminary” report. The thrust of this line of questioning is to convey that your opinion is premature. 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. but let’s assume it did not). if requested. These include biological and physiological crises or circumstantial ones. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. The 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. Your final opinion. you may have been deposed. In theory. For the lunch break. you have confused loyalty to your attorney with the oath to tell the truth. the one that counts. SECOND EDITION sions with your own personal lawyer are protected). you may have written a report after reviewing some quantity of material. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. in the trunk of your car. or inadequately grounded in data. Crises Various crises may strike while you are on the stand. Subsequent communications may be labeled supplementary reports to keep the sequence clear. could change with complete validity based on some new fact that you hear for the first time during the trial. The Final Opinion During the course of expert consultation. Some experts want to call their offices during breaks. and some additional material may have come your way just before the trial (which.86 THE PSYCHIATRIST AS EXPERT WITNESS. had it changed your opinion. your opinion. An aid to this conceptualization is to label your first report. such as the discovery that you have left a key document in your suitcase across the courtroom or. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. This change is as it should be. others find telephone calls distracting and let whoever is covering for them handle things. you would have been obligated to so inform your attorney. because it is based on data.
“You (or the witness) may step down” or “Thank you. If you do shake hands. Ask the judge if you may take a brief break for personal reasons. This behavior conveys too much interest in the outcome for someone who is not a party to the case. or weak. More troublingly. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. Focus on slow. Deal with the problem and then continue with your task with restored focus.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). If a delaying tactic is not used. Forensic etiquette requires that you just leave. The judge will almost always grant this. While this is a common and respectful courtesy. Your job as expert is important to the case. that’s all. Do not hang around to hear what other witnesses say. it invariably conveys the strong suggestion of partisanship. Do not be inhibited by fears that. wave at the jury box (“So long. nod politely to the jury. you will appear inept. entitled. childish. and both grudgingly acknowledge that neither has any more questions for you. and serious distractions impair your work. as always. or to learn of other subsequent activity. or emit other social behaviors. get down from the stand. Do not stop to chat or debrief with the attorney. conservativeness is probably better (the discreet nod rather than the glad-hand wave). The End of the Affair Finally. you seem to be acknowledged . Doctor. by needing to go to the bathroom. stretch your limbs behind the screen of the stand.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. it poses a dilemma of a no-win situation. and go. you exit. when you are through. No one knows the effect of these gestures. On occasion as I have left the courtroom. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. “Thank you. Your Honor.” At this point you say. sickly. to see the outcome. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. Some more extroverted experts thank the jury out loud. at odds with your objectivity. one of the parties or even one of the attorneys reaches out to shake my hand. and sit more upright to relieve tension. it is preferable just to hang in there. measured breathing. fans!”). What do you care what happens? You only testify under oath. for example. The judge dismisses you by saying.
Gutheil TG. some forget. as much as possible about what happened and why it happened. as always. “juror countertransference” toward the attorneys. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. 2000 . For your personal development as an expert. this task is for the lawyers. 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. always seek feedback and reactions to your participation. Take only your report. It is perfectly appropriate after some time has passed to call and ask the outcome. If you have traveled far with a heavy load of database materials. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. J Psychiatry Law 28:235–251. SECOND EDITION for good (but partisan) work. Finally. Because this brief volume can serve only as an introduction. 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. while acknowledging that experience is still. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. by letter or telephone. Most courteous attorneys will inform you later. you seem rude. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. however. the best teacher. and the like—impinge on trial outcome. A far more detailed analysis of testimony can be found elsewhere (5).88 THE PSYCHIATRIST AS EXPERT WITNESS. Forces beyond your control and outside your testimony—such as the demographics of juror selection. Surprisingly. References 1. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. Reaching out your hand to the other side’s party or attorneys in some desperate dramatization of neutrality or even-handedness is likely to confuse everyone. if you do not or you ignore the outstretched hand.
The Expert in Trial 2.
Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk science, junk law, or just plain obstruction? J Am Acad Psychiatry Law 33:150–152, 2005 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 Gutheil TG: Borderline personality disorder, boundary violations and patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597– 602, 1989 Gutheil TG, Dattilio F: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007
Appelbaum PS: Evaluating the admissibility of expert testimony. Hosp Community Psychiatry 45:9–10, 1994 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. Falmouth, MA, SEAK, 1997 Babitsky S, Mangraviti JJ: Cross-Examination: The Comprehensive Guide for Experts. Falmouth, MA, SEAK, 2003 Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC, American Psychological Association, 1991 Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC, American Psychological Association, 1999 Brodsky SL: Coping With Cross-Examination and Other Pathways to Effective Testimony. Washington, DC, American Psychological Association, 2004 Gordon R, Gordon A: On the Witness Stand: How to Be a Great Witness When You’re Called to Court. Addison, TX, Wilmington Institute, 2000 Gutheil TG: The presentation of forensic psychiatric evidence in court. Isr J Psychiatry Relat Sci 37:137–144, 2000 Gutheil TG, Sutherland PK: Forensic assessment, witness credibility and the search for truth through expert testimony in the courtroom. J Psychiatry Law 27:289–312, 1999 Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admissible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychiatry Law 31:422–427, 2003 Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late withdrawal from cases to preserve independence and objectivity. J Am Acad Psychiatry Law 32:390–394, 2004
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
Gutheil TG, Schetky DH, Simon RI: Pejorative testimony about opposing experts and colleagues: “fouling one’s own nest.” J Am Acad Psychiatry Law 34:26–30, 2006 Hollander N, Baldwin LM: Winning with experts. Trial 1:16–24, 1992 Langerman AG: Making sure your experts shine: effective presentation of expert witnesses. Trial 1:106–110, 1992 Lubet S: Effective use of experts: eight techniques for the direct examination of experts. Trial 2:16–20, 1993 McIntyre MA: Use and abuse of articles and publications in cross-examining an expert witness. Trial 2:23–24, 1993 Moore TA: Medical negligence: cross-examining the defense expert. Trial 1:49–52, 1991 Suplee DR, Woodruff MS: Cross examination of expert witnesses. The Practical Lawyer 34:41–54, 1987a Suplee DR, Woodruff MS: Direct examination of experts. The Practical Lawyer 33:53–60, 1987b Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Warren R: The Effective Expert Witness: Proven Strategies for Successful Court Testimony. Lightfoot, VA, Gaynor, 1997 Wawro MLD: Effective presentation of experts. Litigation 19:31–37, 1993
Some Pointers on Expert Witness Practice
IN THIS CHAPTER, I address some practical issues about being
an expert witness (1). Some of the points covered are received wisdom; others flow empirically from experience. The aim is to help you meet the challenges along the way.
One of the most challenging and complex problems that the expert witness faces is the matter of scheduling time in general and trial time in particular. General time constraints require you to plan creatively for the blocks of your schedule that will be occupied by your case review. Similarly, you will be trying to fit your other forensic activities (review, depositions, trial) into the interstices of your clinical or administrative work. Always remember that the fundamental rhythm of the trial is “hurry up and wait.” If you cannot stand reviewing the case anymore lest you explode, read something else. Keep a paperback or journal handy for filling voids.
It is every expert’s nightmare that several commitments will converge on the same tiny allocation of time. In accordance with Murphy’s Law, you will go 91
” Smile politely when you hear these words but make expansive plans. Because your attorney has the most interest in your presence. of course. the other side may be willing to have your testimony inserted into their side of the case. with a deposition for a third case. In extreme circumstances. hours. which also require several people to synchronize their schedules. tops. for example: “Doctor. I know you have a busy schedule. add another layer of challenge. comes before a report. You’ll probably be cross-examined for 1.. The last two priorities are interview and report. cancellation) is as follows. “The Expert on the Road.92 THE PSYCHIATRIST AS EXPERT WITNESS. I can’t imagine my direct examination taking more than an hour. Travel glitches (discussed in Chapter 10. and other-side attorneys are reasonable. so let’s put you on first at 9:00 A . flexible. maybe 2. the trial should take precedence. sharp. and telephone calls to resolve them.” in this volume). An attorney who planned to have you “bat cleanup” (i. negotiation. he or she will be exerting the greatest efforts to make it all work out. others are not. Because your reports can be done at any time of the day or night. SECOND EDITION for months without any forensic activity whatsoever. and serious matters hang in the balance. the hierarchy of urgency and therefore attempted postponement (or at worst. theoretically. requiring two parties to match schedules. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. a forensic interview. with suitable preparation of the jury. As a rule of thumb. two trials in different states will be called simultaneously. but during the very week that you have scheduled four weddings and a funeral. and accommodating.M. You may have a little room to maneuver in terms of the order in which you testify. If a trial and a deposition are scheduled for the same time. although obviously fewer persons and a shorter time frame are involved than are for trial. You’ll be out of there by lunchtime. 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. This type of schedule is close to reality. Trials take first priority. Large numbers of people are involved. attorneys. The tension here is that some courts. court dockets are crowded and leave little flexibility.e. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. but things happen. The second priority is depositions.. You must do the best you can with what you’ve got. You can count on your eyeballs the number of times this clockwork model actu- .
Commons ML: Trading forensic and family commitments. References 1. The best aid for peace of mind for the would-be forensic expert is an understanding spouse. a judge will treat the time between 9:00 and 9:30 A .) 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. DC. However. The attorneys wrangle over whether some document relevant to the next witness is admissible. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. The judge assigns a long lunch and hears another few motions just afterward. (More suggestions on scheduling are included in Chapter 10 in this volume.Some Pointers on Expert Witness Practice 93 ally occurs. American Psychiatric Publishing. The subject may represent some kind of taboo because it is rarely discussed. 2. 2002 Reid WH: Forensic practice: a day in the life. Why? Although some judges are scrupulously punctual. Gutheil TG.M. 1996 Suggested Readings Gutheil TG.” In addition. Gutheil TG: “Paraforensic” aspects of expert witness practice. 2006 . Bull Am Acad Psychiatry Law 24:533–546. partner. In the end. The jury takes a long midmorning break. J Psychiatr Pract 12:50–54. negotiation may be possible for some scheduling conflicts but not always. Thus. some are not. Although my colleagues and I tried to study this issue formally (2). and family. J Am Acad Psychiatry Law 32:356–358. difficult choices may have to be made. no clear conclusions can be drawn. The aforementioned realities make it essential for you to clear as much time as possible for a trial appearance and to arrange contingency coverage in parallel. 2004 Kearney AJ. the odd juror gets stuck in traffic. Washington. it is not uncommon for an out-by-noon case to extend into the next day. Occasionally. as a kind of swing time in which he or she can hear a half dozen motions in this and other cases and “dispose of them.
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I focus on writing the full-fledged forensic report. to serve as a witness. or a physician’s deviation from the standard of care. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. In The Psychiatrist in Court: A Survival Guide. or a full evaluation of a person’s competence to stand trial.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. or for a disability determination. In all such cases. or to serve on a jury. attention to the preparation of the written document results in a product that assists the legal system in its efforts and goals and validates your contribution to the process. In this chapter. for a worker’s compensation claim. some basic principles on letter writing to the court are described and are not repeated in this chapter. an attorney. a court. a defendant’s criminal responsibility. 95 . The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. a description of an independent medical examination for a personal injury suit. allowing careful legal analysis and reflection on whether you will be helpful on the case. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. or a quasilegal agency such as a board of registration or a bureau of motor vehicles.
In other situations. the attorney may ask that you not furnish a report. of course): 1) no report. may take three major forms (with variations possible. and 3) the full. and humanity. SECOND EDITION Alternatively. It should be just long enough to cover the essential information but not so long as to exhaust the reader. 2) a summary report.. for which I am most grateful (where I cite his material. the reader should be able to understand how the opinion was reached from the data in the report. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. I refer to him explicitly in the text). In this chapter. It should stand alone. “Reports should be self-sufficient. which states all of your conclusions and the analysis of all the relevant substantiating data. M.D. General Remarks The report as a whole should meet certain criteria. because the first is self-explanatory and the second is an extract of the third. and meticulous proofing and review of any report you produce. which in that jurisdiction is discoverable by the other side. the report may present materials or approaches that the attorney does not wish to share with the other side. brevity. 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. I emphasize the third form. then. These are all powerful arguments for careful thought. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. Resnick. painstaking preparation. without detailed discussion of the bases or reasoning behind those conclusions. Despite these useful functions.” Dr. all should govern the form of the report.96 THE PSYCHIATRIST AS EXPERT WITNESS. According to Dr. Resnick. Obviously. It should contain everything that you need to support your opinion and no irrelevant material. simplicity. Phillip J. Critical documents should be briefly summarized within the report. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. For similar reasons. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. Resnick also identifies the “four principles of good writing”: clarity. which presents your database and conclusions only. Forensic report writing. . has generously and graciously granted me permission to cite some of his advice on report writing. detailed report. Consequently. Without referring to other documents.
police reports.” The Database After identifying the occasion..” • “I examined Ms.. .” and subsequent contributions. and depositions. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. sometimes called the referral. 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). Jones et al. One way is to provide the case citation or caption in whole or in brief (e. One model by Dr.” Some attorneys. the charges in a criminal case. In that case.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report. or emendations should be titled “Supplementary Report.. use a standard business letter format.. otherwise.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest . think of your report as a memorandum and use a standardized format.. reasoning that the occasion is obvious from context. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. emotional injury or psychiatric malpractice)... the case or docket number if known. legal pleadings.g. Identifying data can be presented in a number of ways. The heading should also include your letterhead and the date of the report. or the type of case in a civil matter (e. The Occasion The occasion. John Johnson). Smith v. or State v. that is. of the report should address the question of why you are writing this report. additions.. Include any interviews per- .g. Resnick is included at the end of this chapter. I examined (name of examinee) with regard to (forensic issue).
The rationale for placing the conclusion last is that such a structure allows the reader to develop an evolving (and therefore deeper) sense of the expert’s reasoning as it may (or may not) lead to the conclusion. including interview data) and your total clinical background of training (what you were taught) and expe- . and so on. (or.. about the disposition. The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge. The documents may be listed alphabetically. the overall basis is described as both the database (all the material reviewed in the case. 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. chronologically. the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). all medical reports. 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.g. The remainder of the report is thus treated as optional reading. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. held to a reasonable degree of medical certainty. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. in the treatment of (plaintiff ). you are free to choose your favorite. that. logical grouping (e. attorney. it is my professional opinion. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . A typical conclusion in a malpractice case. 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. Although each group has a rationale. for example. no convincing case has been made for the inherent superiority of either approach. Note the wording.. or other) is free to stop there and make decisions about future directions in which the process should go. might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience.98 THE PSYCHIATRIST AS EXPERT WITNESS. First. all depositions). or according to some natural. .
If your conclusion comes at the end of the report. sometimes different spins on the truth. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. but occasionally.” In every case. or other. 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. Dr. is essentially boilerplate (i. and credibility as an expert witness. you can present the supporting material in several ways. your conclusions should be presented in . If your conclusion is stated at the outset. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. Second. “Reasons supporting opinions should be clearly and fully stated. sometimes frankly contradictory. insanity. Remember that the conclusion. In these cases.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). standardized legal language).e. the defendant usually has admitted the act for which he or she is charged. offer alternative opinions. Supporting Data After the conclusion. Resnick explains. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. Third.. the expert should scrupulously avoid assuming one side is correct. 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). you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. The reader should not have to use his/her own inferences to understand the point. this section should contain extracts of previous material directly supporting the points you are making. As Dr. effectiveness. more likely than not). malpractice. In criminal cases involving the insanity defense. it is predictable that plaintiff and defendant tell different stories. Resnick states. although representing the core of your opinion.” Multiple Realities In civil cases. be it competence. Dr. Finally. usually.e. “If there are two versions of the facts. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making. Resnick suggests using subheadings to organize the information and facilitate the flow of the report.. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act.
then . Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. A case example was discussed in Chapter 3 (“First Principles”) of this volume. but generally there is no inherent problem .if defendant’s version is true. Limits. 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). Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. then .100 THE PSYCHIATRIST AS EXPERT WITNESS. There is no absolute guideline for this procedure. interview of plaintiff blocked by attorney.. or agency for which it has been prepared. summarizing. to alter or misrepresent facts in the database. or data (such as inadmissible material. judge. and deleting.. some are not. Constraints. these should be recorded. Some requested alterations are fully ethical.. which make for a stronger report. on the contrary.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner.” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true.. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. you may receive requests to alter the report in some ways. and Rebuttals If there have been any constraints of time. money. or to change the substance of your opinions. and shortening the report by aggressive editing. A challenging gray zone is negotiating about wording. SECOND EDITION the following form: “If the allegations are true. then . attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case.. Postreport Negotiations After your report is finished and has been sent to the attorney. even if it has been removed from your report for brevity. Whichever approach you actually take in your written report. These are not weaknesses of the report.” This approach prevents your seeming to side with one party in the case.. asking for the addition of new material not supplied to you earlier. it would be a weakness not to acknowledge these factors candidly. (Remember you must be candid about everything you believe to be true.
very likely.1 1. . Be careful about changing wording concerning issues of causation. 11. 3. 6. The Criminal Report: An Example The following is Dr. 5. 2. extremely likely). 17. 9. and effect of emotional injuries—three common problem areas. 15. 13. Resnick’s outline for a typical criminal report. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. 8. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 16. 12. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. 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. 7. 10. but it may get you started. intensity (likely. You also may ask to see a senior colleague’s report under an agreement of confidentiality. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 4. 14.
1987. New York. 2007. 20. New York. pp 511–528 . 24. et al (eds): Consultation. SECOND EDITION Defendant’s account of the crime: Witness and/or victim accounts of the crime: Mental status examination: Physical examination and laboratory tests: Summary of psychological testing: Competency assessment: Psychiatric diagnosis: Opinion: Suggested Readings Babitsky S. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. pp 577–605 Weiner IB: Writing forensic reports. 21. Edited by Weiner IB. Am J Psychiatry 143:164–169. 1986 Melton GB. report writing and expert testimony. Hess AK. Guilford Press. THE PSYCHIATRIST AS EXPERT WITNESS. MA. 19. 22. Falmouth. SEAK. 3rd Edition. Wiley. in Handbook of Forensic Psychology. Petrilla J. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models.102 18. Poythress NG. 23. 25.
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. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. such an affiliation would mean that we would be able to say to any attorney who called us. Unfortunately.) 103 . heard of. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. and inefficacies. In this chapter.” The ability to say yes to all comers seemed like a good idea at the time. and a typeface for our official stationery. embarrassments. a letterhead. (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. We retained an industrial designer to help create a logo (highlighting crimson. and we drafted an announcement. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. to connote the Harvard connection).CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. In the late 1970s. We sent this announcement to every attorney we had ever worked with. “Yes! We (or the corporation) will take your case.
list. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. would you get a straight answer from the attorneys you would want to work for? Strategies Various approaches to building word of mouth are recommended as you develop and market your forensic practice: announce. The result was tantamount to letting a drop of water fall into a large lake. sharing useful information versus being pushy. is suspect and not reliable as an approach (see also Chapter 4. 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. The Key Approach As time went on. for example. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. that is..” in this volume). clinicians) led to forensic referrals: word of mouth. “Types of Typical Cases. and unspecialize. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. but the net effect for all this time. an expert’s marketing strategy shifts to generating favorable word of mouth. opportunistic. inform. We received a few form announcements from two or three firms about their offerings. word of mouth). Based on this reasoning. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. Ordinary advertising in Lawyers’ Weekly. and expense resembled our own responses to offers that come in the mail to sell us insurance. SECOND EDITION All this effort did nothing. speak. Support for this theory came from Harvey Research in 1994.e. . thought.104 THE PSYCHIATRIST AS EXPERT WITNESS. The balance must be struck between dualities such as generating word of mouth versus hucksterism. commercialized hustling for business—or the appearance thereof. write. and pride and confidence in your work versus hired gun certainty or grandiosity. The Delicate Balance In all approaches to marketing. Most recipients almost certainly awarded our announcement the coveted circular file disposition.
National meetings of professional associations (such as those of the American Psychiatric Association [APA] and American Academy of Psychiatry and the Law [AAPL]) and local chapters of other organizations offer additional opportunities for informing peers about openings in your caseload. If you are moving into a new town. or other reasons. in effect. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. or use it in some other appropriate way. they will be useful to you in several ways. Thus. and send it to attorneys and clinicians. informative. Among other roles. judges may need your services. 3) attorneys. Describe those services you can authentically offer. Avoid any hype. will see you in action in deposition or trial. 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. For your clinical peers. Alumni bulletins and class reunions are also opportunities to get the word out. you may wish to send a short. Finally. First. of course. and factual. Attorneys whom you can inform include your own attorney. it should be tasteful. polite letter informing local judges of your availability for forensic services. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. if you have one. 2) your forensic peer group. If you inform your peer groups about your availability. Some experts replace the announcement with a minibrochure: a single. and lawyer neighbors and friends who might pass your name along. Although your forensic peers may seem to be your competition. the announcement should display the professionalism that you plan to bring to the work. they may turn away a case because of a conflict of interest. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. . including listing services you are not truly expert in.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). too little time. and 4) judges. Serving as a guardian ad litem (GAL. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. the GAL may do a preliminary survey of the psychiatric aspects of a case. then reporting to the court. they may think of you at that point. previous associations with the attorneys on the other side. Opposing attorneys. hand it out at a lecture. trifold sheet of fine paper with a brief description of the expert and the services.
Become active in your district branch legislative committees and processes. Admittedly. One reference. You will be exposed to attorneys and legislators. or commentary and have it published. and similar humiliations. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. and media exposure may open you to crank calls. however. Your podium demeanor may convey at least a little about your expected performance on the witness stand. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). many referrals to psychiatrists come from publications. such as hospital grand rounds. both of whom may be potential referral sources. 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. 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. SECOND EDITION List Listings can be effective as well. no one will show. Instead. Write In our computerized modern age. try to become involved in local media such as call-in shows. departmental conferences. or established continuing medical education programs. Although it is useful exposure and a valuable resource to write an analysis.106 THE PSYCHIATRIST AS EXPERT WITNESS. which are often seeking a stable of experts to comment on medicolegal stories of the moment. may be helpful in dealing with the media. review. sign up as an entry in an existing lecture series. the topics of which appear on the screens of attorneys’ computer searches. but the wounds of experience are probably and ultimately the best teacher. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. such as clinicians and lawyers. ambush journalism. Beat the Press (2). this skill is acquired. . these publications may be explored. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. In my opinion. The APA Public Affairs Office provides some guidance in dealing with the media. Finally.
” This is a losing strategy. including this one. place in the profession. widely publicized mass murders. No case too small. From the absolute onset of your career. Have the site professionally designed with attention to taste. Conservatively stating your incontrovertible credentials (actual appointments. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case. 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. Begin your career by unspecializing. skills. 2. What About Web Sites? In the modern era the use of Web sites has increased for all professions. Consider taking on some pro bono work as well. You will derive no income. Beware of making or seeming to make extravagant claims for your knowledge. Do not bend the truth to satisfy the attorney. as it were—but the Web site is perhaps the most explicit. based on your fine performance at the deposition. but you will obtain valuable exposure. certifica- . In fact. integrity must be your watchword. and interest. In the same vein. extremely public. modesty. some broker organizations guarantee your opinion. some critical considerations are the following: 1. one turn to the Dark Side of the Force. It may then take you years of work to unblemish your reputation. Even minor. trivial cases allow you to be observed in action by potential employers. by definition. no matter how slight the issue. It does not matter if the case is trivial or small potatoes. I will work only on high-profile. wherein you follow the ancient maxim. Be extremely careful about posting your qualifications. 3. a point that cannot be overemphasized. If you decide to use a Web site. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. training. and your course as hired gun may be marked. 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. and other aggrandizing statements that are.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. even at the outset. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted.
etc. Additional Pointers The issue may seem trivial. and demanding of patience. sound. You are saying to the calling attorney. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. including attorneys and fellow clinicians. at times trying. but its importance cannot be overstated: return telephone calls promptly. References 1. 2003 Fulton S. Remember to thank your referral sources. SECOND EDITION tions. conflict. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. specific required expertise). you are also revealing yourself as a good first stop on the search for a good expert. publications. choose only those experts whom you would be confident to have on your side if you were being sued for something. Return telephone calls are the easiest marketing device and one of the most effective. J Psychiatry Law 31:5–19. but I will take it upon myself to find somebody good who can. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. . Guyant A: Beat the Press.108 THE PSYCHIATRIST AS EXPERT WITNESS. UT. Building a practice on word of mouth is slow. for referrals. Sadoff RL. American Book Business Press. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. and effective. Finally. In analogy with clinical referrals. 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. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. “I can’t take this case (because of time.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). but no other method is as reliable. Dattilio FM. recall the value of brokering.” Although you are feeding the competition. 2002 2. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. Salt Lake City.
WW Norton. out of Falmouth. Glenwood Springs. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. 1997 Feder HA: Succeeding as an Expert Witness. I disclose that I have lectured for SEAK numerous times over the years. New York. .. Tageh Press. CO. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. Inc. Massachusetts.
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This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices.. 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. William Reid. The author is indebted to Robert I. or interviews. As always. Simon.D. M. 111 . M. seasoned travelers may skip the chapter entirely. this chapter will be too obvious and not relevant to your needs. 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. and opprobrium. In this chapter. I address some tips and strategies for the expert who is inexperienced in traveling to cases.. examinations. mockery. 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.D.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.
you may make the appropriate adjustments. testify or interview the next day. and hotels directly and save you much time and stress on the telephone or online. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. For cases that involve land travel. the process takes even longer. on rare occasion. especially in flight. especially if you have not worn it for a while. 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. and your colleagues. Still other guides are provided in the suggested readings at the end of this chapter. and one pair of shoes. looks professional. Opt for crushproof fabrics and materials whenever possible. Consult with significant others for their opinions if needed. cars. and return that day or the following one. Another useful reference is Jet Smart (2). Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume. Running shoes also allow you to sprint through airports to . to ensure that it still fits. stay overnight in a hotel or similar setting. matches. and general information can be obtained from books.112 THE PSYCHIATRIST AS EXPERT WITNESS. Alternatively. polished shoes for men and women). Try on everything before you pack it. Some General Recommendations Travel Information Travel guides are available everywhere. 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. travel agents. and is in good repair. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. 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. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. the emerging online travel services (Expedia and the like) may prove useful. Some experts like to subscribe to an official airline guide for creative problem solving if they are marooned in distant locations because of altered or canceled flights. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. the Internet. These services can book flights.
you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. Seek equitable division of costs for multiple-case trips. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. then. Avoid checking baggage if you can. It is possible. if you are flying to a case and use air travel time to review the case. to pack for 2 or 3 days of travel and bring most of the key documents in a case along for review while remaining in full carry-on mode. For example. The Ethics of Billing Bill strictly according to your fee agreement. for one telephone call to the family.g. which are. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms.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. for one or two telephone calls per day to the office to check on things. You have enough to worry about . 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. but not alcoholic beverages. If you review a different case on the way back. fortunately. a useful principle is to avoid double billing in any form. do not bill separately for that work because you are already being paid a day rate. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. do not bill for sleep (you do it anyway).. 1 day at your day rate. or 2-hour long-distance calls to your paramour. in-room movies. you may bill for that time but not for the ticket because the first case paid the whole trip already. and for the regular three meals. for example. is addressed nowhere in the forensic literature). rare but extremely stressful when they do occur. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. the literature is relatively unhelpful (the issue of double billing. Until data emerge. If the trial runs longer than a day or so. because some law firms are slow to reimburse hotel and plane expenses). Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. Separate business from personal comfort. massages.
extra eyeglasses or contacts if you wear them. safety pins in various sizes. with a little applied topology. antacids. stain-remover sticks that do not contain toxic petrochemicals. Remember also that your kit should contain items that permit repair. In psychoanalytic theory. such as a variety of buttons and threads to match your clothes. Dopp kit. but you may wish to experiment with a friend’s suitcase. lotions. and string. The Kit Whether you call it a travel kit. and similar medications. Alternatively. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. do not skimp or economize on the roll-along suitcase. makeup bag. 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. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. extra shoelaces. and creams to quart-size plastic bags. In addition. a small. decongestants. you may opt to wear the suit or outfit on the plane and guard it in transit. and pack the rest of the gear. it is indispensable to your successful travel ventures. the principle of multiple function is one of the basics of a dynamic understanding of mental life. Wear your workout or running shoes on the plane. and rubber bands.114 THE PSYCHIATRIST AS EXPERT WITNESS. It is definitely a basic principle for assembling your kit. these roll-alongs often fit either in the overhead compartment or. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. and cleaning. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. multifunction “pharmacy” also should be included. eyeglass screwdrivers and replacement screws. . Current travel restrictions have shifted the allocation of liquids. In general. Other useful miscellaneous items include adhesive bandages of various sizes and types. even under the seat in some cases. or toiletries case. remedy. A small. not to mention the current airline custom of charging extra. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. and extra combs. a small roll of duct tape. which may also be prepacked. light flashlight for power outages and searching under beds for lost items. What you take should have similar versatility. These should include sewing items.
and special arrangements. Besides a small flashlight. This item is available through a number of catalogs. I carry a compact “smoke hood. Almost all modern hotels in the United States have smoke detectors. but you can buy your own compact version. experienced travelers can skip this discussion. procedures. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. The traveling expert is sometimes torn between staying at a cold. because someone else is paying your way to the location. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. call the airline early to check on facilities. You breathe through a filter that lasts long enough. Second.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. often hooked to a travel alarm clock. testify. Emergency Items Neurotic fears can certainly flower when you travel. First. as well as extra disks and the instruction manual if not on the hard drive already. on very dry flights.” this discussion will be helpful. in theory. fly out. I recommend the hotel or motel for several reasons. although occasionally. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely. try breathing through a moistened towel for short periods. but some precautions seem sensible. Seriously consider avoiding airline food entirely. you are undistracted by social obligations and family strife or background noise. The latter appears at first glance both socially desirable and economical. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. it is more professional to meet with your attorney the night before the . institutional hotel or motel and cadging free lodging with friends or relatives in the area. fails). Drink water steadily to avoid travel dehydration. or order special low-fat meals. If you have a disability. remember to carry light extension cords and voltage adapters. Secrets of Staying If you are unfamiliar with the expert art of “fly in.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. for you to get out of the toxic smoke and gases to safety.
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. after I put down my luggage. Whether the room’s air system is heating in winter or cooling in summer. After the trial. My second move often is to arrange a do-it-yourself humidification of the room. 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. It is probably safest to avoid all alcohol during the trip before testimony. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . this is. My first move on entering a hotel room. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. Experimenting with culinary exotica is asking for a case of turista at worst. an essential part of effective testimony. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. . 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. but not all. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. have your martini on the airplane home after it is all over. obviously you should eat lightly and stick to what is familiar to you. a business trip. 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. If a paper clip or safety pin does not suspend the cloth or towel well. a situation that can leave you hoarse. and headachy on the stand. SECOND EDITION trial in a hotel room or conference room. congested. Don’t forget to set the room thermostat to your accustomed household temperature. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. back up the call with your travel alarm.M. Secrets of Eating In traveling to court. the air is invariably dry in most hotels. nausea on the witness stand also may be misinterpreted. wring it out thoroughly so that it doesn’t drip. after all. Some. you are free to visit friends and family at your own discretion.116 THE PSYCHIATRIST AS EXPERT WITNESS. of course. hotels provide irons. if desired. Remoisten it as needed.
When you are up and awake. and with sleeping pills. plan your trip to allow time for recovery from jet lag. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. including hangovers. also eat lightly. This term refers to sounds containing all frequencies. 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. usually described in catalogs as “sound soothers. hot baths. by using either alcohol or sleeping pills (barbiturates. What to Take to Court Courthouses are notably lacking in amenities. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. you can have a serious meal without ill effect. just as white light contains all color wavelengths. spending some time in direct sunlight may be helpful in adjusting your biologic clock.. or even a different time zone. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A .” sleep sound machines. but all the data are not in. without aftereffects. Catalogs sell portable battery-operated white-noise generators. or similar terms. Ordinary AM radio static and the sound of surf are two examples of white noise. stain . the chatter of housekeeping staff just outside your door) is white noise. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. benzodiazepines.M. either by closing them completely or fastening gaping fabrics with safety pins. and similar relaxants. breathing techniques.The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. When possible. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. Far better results accrue from sleep hygiene maneuvers. as noted. actual memory loss can occur—the last thing you need. so you may have to carry some supplies in your pocket or purse. of course. These have ill effects. Many travelers find it helpful to block out morning sunlight with the drapes. I recommend it. After court. or others) at bedtime. Examples include prescription medications that you need during the course of a long day.
Gutheil TG: The forensic expert practicing on the road: new hazards along the way. mints.) Gutheil TG. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. sample wardrobes and general travel pointers included as well. or refreshment. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. 2001 Simon RI.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Flying Cloud Publishing. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. J Am Acad Psychiatry Law 26:21–26. 2003 2. with the emphasis on safety and security issues. New York. Celestial Arts Publishing. Magellan’s International. Jossey-Bass. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential.118 THE PSYCHIATRIST AS EXPERT WITNESS. 1998 Gutheil TG. cough drops.: Expert witness travel dilemmas: a pilot study of billing practices.) St. 1994 (An excellent guide to what to take and how to pack it. References 1. 1996 . 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. J Am Acad Psychiatry Law 29:202– 206. WA. Ten Speed Press. Although some of the pointers in this chapter probably state the obvious. Miller PM: Expert witness billing practices revisited: a pilot study of further data. 4. or throat lozenges. 5. I welcome your suggestions and favorite travel tips.) Savage P: The Safe Travel Book. Commons ML. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Slater FE. CA. CA. CA. Berkeley. Revised. Commons ML. 1988 (Incredibly detailed. I hope that these tips make your travel easier and less surprising. Santa Barbara. Villard. James E: The Secrets of Simple Packing (VHS videotape). and a headache remedy for the obvious problem. SECOND EDITION removal. 3. Berkeley. Seattle. et al. San Francisco. Psychiatric Annals 33:302–306.
expand. from all evidence.D. the courts will continue. if you wish to take your work to the next level.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. The Psychiatrist in Court: A Survival Guide. the more we serve this valuable and necessary function. decry the expert witness function and voice arguments for its abolition. including our medical colleagues. (American Psychiatric Publishing 2002). not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. or have taken too much for granted about your background and experience in any portion of this text. and helpful testimony. On the other hand. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. or render this text more useful. That book may fill in some of the blanks. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”). which I cowrote with Robert I. to require our services in increasing numbers. Simon. The better we are at meeting the courts’ needs with ethical. Although some forces in society. the reader. consider reviewing the successor volume to this one. 119 . consider first reading the companion volume. effective. I welcome comments and suggestions from readers to correct. As always. M. If I have made too many assumptions about you.
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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.. supplied for consideration. is likely to be competent to consent to the interview). and the examinee’s attorney’s attestation that the examinee understands the form (i. clarification that the forensic examination is not the practice of medicine.e. The main points about the form are the use of basic language. 121 .
Gutheil’s questions. Gutheil keep secret what I tell him. and I understand that no one can know which one it will be in advance. and I understand. that he is not acting as my physician or psychiatrist in doing this interview or interviews. I understand and agree that Dr. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. I understand. Dr. the person who has signed at the bottom of this letter. I understand and agree that Dr. I agree to be interviewed. “follow-up. Gutheil’s written report or out-loud statements for court may help my case.122 THE PSYCHIATRIST AS EXPERT WITNESS. or have no effect on my case that I can see. 3. (“Dr. Gutheil. . most of which will be very personal. During this interview or interviews I will be asked a number of questions about myself. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. Thomas Gutheil. but if I refuse to give an answer or some answers. in connection with my legal case. I also agree to give up any rights I have by law to keep him from saying in court what I tell him or what we discuss. Gutheil 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. 2. Gutheil will explain or has explained to me and I understand that Dr. or out loud in open court in a trial. hurt my case. Gutheil”) I.” or “update” interviews of me by Dr. Gutheil will not give me any medical or psychiatric treatment. Dr. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. agree to have an examination by Dr. Gutheil’s interview or interviews. Gutheil. I also understand that I am not his patient in connection with or because of this interview or interviews. Gutheil may write that down for the record. . however. M. I agree to give up my rights to have Dr. in spoken depositions (where lawyers ask him questions). Gutheil will explain or has explained to me. I understand and agree to additional repeat. I understand that Dr. The examination will be one or more personal interviews. the following: 1. Because I am being interviewed in a legal matter. I understand that I can take breaks if I want to at any time during Dr. Dr. Gutheil is a physician and a psychiatrist. This means that Dr.D. Dr. if needed. 4. and I understand they will be part of the same examination and will follow all the above rules. SECOND EDITION Consent for Forensic Examination by Thomas G. nor will he suggest any treatments to me or for me. Dr.
or the court as provided by law. free to show it to me. of course. Attorney for examinee Print name Date day of . Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and. Gutheil’s retaining attorney. I certify that I have answered any questions my client asked about the procedure. he/she appears competent to understand it.Appendix 1: Consent Form for Forensic Examination 123 5. Signed. to my assessment. 20 . a court officer. that individual is. Dr. Any report in relation to my case will not go to me but will go directly to my attorney.
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including portal-to-portal local travel (c). In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. Gutheil. Gutheil shall be reimbursed for all time spent on the case. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. $ for depositions. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. (“Dr. (d) 125 .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). the radical revision presented here has evolved from that in the first edition for the same reasons. Gutheil”) 1. and the same due for cancellations that occur less than 72 hours in advance. in addition. rescheduling is at mutual convenience. Standard Letter of Agreement by Thomas G. at a rate of $ per hour plus expenses. Dr. M. and $ per hour for trial.D. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours.
Dr. (s) Note: Please send all case materials to (address) Date . irrespective of case outcome (j) or defaulted appearances. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. 4. 3. a retainer of $ pected 3 business days in advance. any existing balance shall also have been paid 3 business days before departure (e). Before such travel is undertaken. and as a condition for its specific to this travel is exbeing undertaken. 5. Gutheil will be unavailable for testimony in person during the month of August (f ). A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case.126 THE PSYCHIATRIST AS EXPERT WITNESS. please return one copy to Dr. The retaining attorney understands that my forensic work is not the practice of medicine. Signed. including travel by first-class conveyance and appropriate lodging if needed. Gutheil. and examinations as discovery rules permit. Gutheil by name (h). Failure to comply may void this agreement except for duties of confidentiality (l). SECOND EDITION per day 2. Gutheil’s FID# is . 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). Overdue accounts may accrue interest at 6% per annum. prorated (k). The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. Signature below indicates agreement with all (r) these terms. Dr. For out-of-state evaluations or testimony. Payment in a timely (g) manner. materials. leaving the retaining attorney or insurer individually liable for any unpaid balance (m). (q) 6. is the sole responsibility of the retaining attorney or insurer (i). For out-of-state travel. made out to Dr. as an advance against which expenses are billed (p). the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. Please note that because of vacation scheduling. 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).
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).” 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. thus. Your fee is. take a videotaped deposition. that this is a formal contract. but what can I do? That client just won’t honor his or her obligations. or trial. deposition. n. make that clear so that you don’t waste a lot of time swapping checks between payees. this statement makes the attorney agree to that possibility. will throw up their hands in mock exasperation and say. dunned for appropriately earned fees. e. moreover. If you know when your vacation is. or trial travel. k. Some experts charge differing rates.Appendix 2: Standard Fee Agreement 127 Annotations a. Doc. based on their training. g. this clause makes that explicit. that does not mean you should not be paid for the work already done. “You’re right. If you are the sole proprietor. . j. attorneys are sometimes slow to reimburse travel expenses for interview. c. or even retain another expert. This information frees up the attorney to ask for continuance or rescheduling. If the retaining party is relentlessly slow. Some attorneys. b. A case decision that goes against the side retaining you is not grounds for nonpayment. h. i. Working for the client. For unexplained reasons. you may decide to withdraw. This is a standard rate of interest on overdue accounts and an incentive for timely payment. Every agreement must have an exit clause such as this one. You must be free to withdraw from the case if the contract is breached. You have the right to request timely payment to prevent excessive backbalance buildup. deposition. If you do withdraw. the “clock” starts when you leave your home or office for court and stops when you return to office or home.” d. Because you will be investing a fair amount in the travel costs. “Consideration” and “agreeing” are trigger words that signal to attorneys. noncontingent. You are initially retained as a consultant. “portal-to-portal. or a member of a corporation or group practice. m. as it ethically should be. others the same. f. I recommend asking for this secondary retainer before travel. To cut through nit-picking. l. for review. it saves everyone time and heartache if you spell it out. can constitute a bias.
alas. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. because you did no work. . and. The wording here. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. Such attorneys may pay the retainer. parallel with the forensic consent form in Appendix 1. Moreover. has handed the case to another attorney. You are here agreeing to accept signature from a different attorney or a paralegal. SECOND EDITION o. ask for their retainer back. Making the retainer nonrefundable tends to eliminate such shenanigans. others ask for a second retainer (see also Appendix 3 in this volume). give you no work to do. for example.128 THE PSYCHIATRIST AS EXPERT WITNESS. and ethical incompatibilities. r. some experts simply submit additional invoices. these events do not weaken the contractual ties with the firm. 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. legal. making you ineligible for participation with the other side. at no cost to the attorney but at lost time and possible income to you. When this retainer is depleted. You have been sandbagged. p. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. The retainer is not only a means of establishing the contract but also an actual advance against expenses. s. identifies the attorney’s understanding that this is not the case. or has left the firm. On rare occasions. q. after settling the case. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. if the attorney is out of the country.
I may require an additional retainer. If travel from my office is necessary to perform any of these services. if it appears that substantial services are yet to be rendered. Any credit balance remaining will be refunded upon the termination of my services. 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. and report preparation. review of records. M. consultation with counsel. interviews with family members or other persons.D.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. Psychiatric services may include an initial consultation. Thereafter. LARRY H. STRASBURGER. psychiatric interview or evaluation. the hourly 129 . I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. It is understood and agreed that timely payment for my service and expenses will be solely the responsibility of the attorney and is in no way contingent upon the outcome of any litigation or settlement. This retainer will constitute a credit balance until exhausted.
Strasburger. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. Nor shall such failure relieve your obligation to have on deposit. the retainer discussed above. 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). It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding.D. Larry H. court rule. Diplomate. SECOND EDITION rates will apply to portal-to-portal travel time. prior to my testimony. no refund of the retainer deposit will be made. and all travel expenses will be reimbursed. American Board of Psychiatry and Neurology Diplomate. Please keep a copy of this letter for your records. literature research. Sincerely. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. M. messenger services. long-distance telephone calls. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. court order.130 THE PSYCHIATRIST AS EXPERT WITNESS. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. etc. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. please so indicate by signing this letter and returning it to me with your check for the retainer. I will send you a monthly statement. Time spent in preparing for testimony shall be billed at the hourly rate specified above. 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. postage. setting forth the nature of the services rendered since the prior billing. Any excess over the retainer balance is due upon receipt. along with a listing of out-of-pocket expenses. photocopying. as prescribed by statute. If the foregoing fee basis meets with your approval. expert or otherwise. including secretarial service. All travel shall be by first-class conveyance.
MA. MA. however. National Institute for Trial Advocacy. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. SEAK. These sources are meant to supplement those provided at the ends of the chapters in this book. 2008 Ball D: Theater Tips and Strategies for Jury Trials. 2005 Babitsky S. Falmouth. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. Falmouth. All. this has many useful tips on trial demeanor and related issues. South Bend. Falmouth. MA. MA. SEAK. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them.Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. Mangraviti JJ: How to Become a Dangerous Expert Witness. 2003 Babitsky S. Babitsky S. 1997 Babitsky S. SEAK. 2002 Babitsky S. 2007 Babitsky S.) Binder RL: Liability for the psychiatric expert witness. Falmouth. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. Falmouth. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. their quality is variable. Inevitably. 1997 (Though aimed at attorneys. as well as those found in the companion volume. 2002 131 . provide at least some information useful for the psychiatric expert. MA. IN. not just psychiatry. MA. SEAK. SEAK. Am J Psychiatry 159:1819–1825. The Psychiatrist in Court: A Survival Guide. Falmouth. SEAK.
) Gutheil TG. Washington.) Gutheil TG. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. 1993 Dattilio FM. Edited by Jackson R. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. Danvers. in Learning Forensic Assessment. 2007 (Focuses specifically on the testimony phase of expert work. PA. DC. James Publishing. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. MD. New York. et al: Expert Witnesses: Direct and Cross Examination. Springer. 2001 Isele WP: Under Oath: Tips for Testifying. useful for checking credentials. New York. Wiley Law. J Am Acad Psychiatry Law 29:313–318. Williams & Wilkins. CO. 1994 Rabinoff MA. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. Pennsylvania Bar Institute. Adams KM. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. NJ. Mechanicsburg. McClure Company. American Psychological Association. Routledge/Taylor & Francis.132 THE PSYCHIATRIST AS EXPERT WITNESS. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 3rd Edition. J Am Acad Psychiatry Law 34:482–491. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. Hillsdale. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. 1993 Gutheil TG. Analytic Press. Lippincott. 2006 Feder HA: Succeeding as an Expert Witness. 2003 . American Psychiatric Publishing. Baltimore. Covise LL. LRP Publications. Washington. Tageh Press. Simon RI. 2007. Commons ML. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 2002 (This is designed as the successor book to the present one. Diamond. Horsham. pp 565– 588 McHale MJ. Mulligan WG. PA. Guilford Press. at a more advanced level. New York. DC. MA. New York. Santa Ana. CA. Glenwood Springs. 2008 Rogers R. New York. 1995 Kwartner PP. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. 1908 (Purely for antiquarians and those interested in a classic from the last century.) Dattilio FM. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. LRP Publications. New York. 2nd Edition. Oxford University Press.
discussions. Beth Israel-Deaconess Medical Center. New York. http://pipatl. SEAK. Washington. American Psychiatric Press. MA. American Psychiatric Press. American Psychiatric Press. publishing a vast range of information and offering excellent training courses. Mahwah. DC. with multiple resources. Wiley. Gaynor Publishing.com/forensic/f_psych. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. http://www. Shuman D: Clinical Manual of Psychiatry and Law. Washington. the national forensic psychiatric organization.SEAK. NJ. http://forensic-psych. All experts should join. and links. VA. links. 2003 Simon RI. articles. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. 2nd Edition. 1976 Zobel HB.org: Web site of the Program in Psychiatry and the Law. and postings. Kochansky J: The Complete Psychiatric Examination (videotape). and links. Lightfoot. 2001 . 1993 Other Media http://www. WW Norton. Erlbaum. Gutheil TG. DC. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence.com: Web site of author’s colleague HJ Bursztajn.) Simon RI. Disclosure: This author is a founder. Section of Litigation. A compendium of sources. Rons SN: Doctors and the Law: Defendants and Expert Witnesses.reidpsychiatry. DC. 2004 (Study guide available since 2006.html: Another multiple resource site. Falmouth.aapl. 1997 Younger I: The Art of Cross Examination. J Am Acad Psychiatry Law 35:346–349. American Bar Association. MD. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. http://www.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. Harvard Medical School. Anderson RM: Mastering Expert Testimony. New York. DC.com: A host of resources by two top attorneys. 2007 Tsushima WT. Washington. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. http://tncrimlaw. Washington.org: The main Web site for the American Academy of Psychiatry and the Law.com: A resource-rich site with articles.
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135 .. that is simply plugged in to the appropriate place. it may consist of records and documents. the person who committed suicide is the “plaintiff’s decedent. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness. it is usually “court-tested. legal documents such as depositions and interrogatories. in which the witness.e. it has been accepted in actual cases that validate its use.” Deposition Usually believed to be the actual ceremony. In case of ambiguity. such as relatives or executors. Thus in a suicide malpractice case. Boilerplate Standardized legal language. two or more lawyers. on mainframes) and may be used in attempts to impeach the expert at trial. In reality the actual deposition is the transcript of the deposition. Competence is decision-specific and usually based on criteria. interview data. It is not derived from the facts of the specific case at hand. Decedent The person related to the case who has died. or tradition. Competence The capacity or ability to deal with a certain task. Instead.” it is always “competence for what?” The criteria for the different competencies are often distinct. Database This author’s term for the totality of material that the expert has reviewed to form the opinion.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. the criteria for competence to make a will and for competence to stand trial are quite different. case law.” that is. and so on. usually derived from statutes. the practical and relevant definitions are provided. in the context of discovery. which will live on in perpetuity (i. the plaintiff is the (live) person bringing the suit. consult your retaining attorney. for example. lab results. there is no generic “competence.
and the like. and various motions accomplish some of this phase. but this is the established term. in which information is gathered by the attorneys in order to prepare the case.e. interrogatories. Depositions. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering.. says what the attorney wants said rather than objective truth). or an attorney-psychiatrist team. since the goal of the process appears actually to be a decision. challenging the party moving for a particular result. and other medical contexts not limited to psychiatry.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. The role may include representing an unrepresented party (e. IME (independent medical examination) An important part of the discovery process in malpractice. investigating in the field for the court to determine the situation leading to the proceeding (e. . Fact finder Practically speaking. may be used as well. less ordinary procedures might include covert surveillance of a suspected malingerer.136 THE PSYCHIATRIST AS EXPERT WITNESS.g.. in “trial by ambush” jurisdictions this step is skipped.g. but a psychiatrist. The IME may be resisted by some attorneys. if so. See also “Trial by ambush. The GAL may be thought of as a kind of utility infielder for the court.. use of a private investigator to obtain information. usually exchanged between opposing attorneys to alert them to your projected opinion. the judge(s) and/or jury. after the civil or criminal matter is set in motion. disability. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i.” Discovery That early phase of litigation. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. Finding See “Opinion. Novice experts see this as a misnomer. “Hired gun” A term. The GAL is usually an attorney. this limitation constrains the data gathering and the conclusions that may be drawn from the database. borrowed from western and noir fiction and film. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. thus decision maker rather than fact finder. the fetus in an abortion decision). to visit a nursing home where resides a person whose competence is being challenged) and other duties.
sometimes without even informing.” of the expert’s efforts. tell the narrow truth. Opinion The final phase. There are several . retreat to the oath.” In practical terms. disliked by almost all parties in a case as well as the general public. but without actually retaining. Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. and nothing but the truth. and let the chips fall where they may. One of the most challenging assessments in all of forensic psychiatry. “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. when confusion sets in. falling below the standard of care in the care rendered in the instant case. experts should review these carefully for accuracy as to their opinions. the court makes the finding that defines the outcome of the case. Interrogatories A set of formal. and widely misunderstood by many of those. the insanity evaluation is retrospective. elaborate dinners and entertainments. these are prepared jointly by attorney and expert. See also “Standard of care.” 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. In a practical sense. Of course.Glossary 137 Insanity The legal concept whereby a person who did an otherwise criminal act is yet nonculpable because of criteria-specific impairments caused by mental illness or organicity. the whole truth is often supplanted by “the admissible truth. because variations from these answers at trial will be used actively in attempted impeachment. the oath is a place of safety to which. The “seduction” may involve flattery. Negligence In a medicolegal context. its influence should be resisted by the expert. In addition. Like other sources of bias. 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. promises of much future work if the opinion in the present case is favorable. The expert offers an opinion derived from the database and training and experience. and the like. the witnesses are to testify in court only with testimony that they can swear to. governed by legal criteria that vary by jurisdiction. the “bottom line. the whole truth. the expert. the expert can retreat when in doubt about what is going on or where the inquiry is going.
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. thus an attorney or an expert might perform a relevant duty for free. this term usually refers to service without payment. hearings. The expert should be familiar with the relevant local standard and its definition. by excluding them from the courtroom. SECOND EDITION variations on this ploy. but they cannot by themselves reform the exploitative personality. Appendix 4. to prevent the experts from hearing other testimony. Reasonable medical certainty The conceptual threshold to which all testimony in court by an expert should be given. a few find ways not to pay you what they owe.” and so on. privilege is narrowly construed as applying in legal or quasi-legal contexts only. 2001: “The Phantom Expert. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. which broadly applies to information that should not be shared with others in many contexts.” “reasonable psychological certainty. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. Pro bono Short for pro bono publico (for the public’s good).” which the expert must also know. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee. particularly experts.” in suggested readings. See Gutheil et al.138 THE PSYCHIATRIST AS EXPERT WITNESS. Sequester The separation of witnesses.” An expert testifying about a case must be familiar with the relevant standard. the standard is usually national but may be local—the “locality rule. Privilege A legal concept that holds that the patient (or examinee) has certain rights to bar statements or testimony from appearing in legal or quasilegal proceedings such as courts.” Though most attorneys are responsible.” “reasonable medical (or psychological) probability. the origin of the frequently invoked mantra. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. Unlike confidentiality. and the like. “get the money up front. . administrative law procedures. Several jurisdictional variants include “more likely than not.” “51% certainty.
” Jurisdictions vary widely as to the applicability of this principle. This rate should be seen as a rough guide. usually based on criteria. “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.Glossary 139 Stipulate To concede or agree to a challenged issue. but the plaintiff has a thin or “eggshell” skull and is severely injured. not those that come in for review. such as whether a witness should be accepted as an expert for the court.”) . Tarasoff-type cases A shorthand way to refer to cases (named after an important California case.” Experts should refrain from stating the ultimate issue in their testimony. after review. (See also “Opinion. and expert disclosures (see “Disclosure”) inform the other side in advance. The image is that of a defendant giving a trivial blow to the head of the plaintiff. which involve a victim in addition to the treater and patient. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. are sometimes referred to as “third-party cases. Because the usual duty of clinicians is to the patient alone. but the fact finder renders the finding that embodies the “ultimate issue. Turndown rate The ratio of cases that are. not as a valid method of determining one’s standards of acceptance. a blow that would ordinarily not be expected to cause harm. insane.” or “duty to warn third-party cases. guilty. depositions. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. The expert has control only over those accepted or rejected. In the majority of situations. The expert proffers an opinion. accepted as meritorious versus those rejected as invalid. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. discovery proceedings such as interrogatories. 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). competent. Among other goals such as saving time. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. Ultimate issue The final outcome of the legal process: negligent. etc. these cases.
Chapter 4 (reference 11). the purpose is to allow preparation of cross-examination or rebuttal. . literally “to see. Waffling An expert’s rambling. SECOND EDITION Voir dire An expression from the French. This may apply to certain communications between expert and retaining attorney.140 THE PSYCHIATRIST AS EXPERT WITNESS. There are a number of possible causes. “The Problem of Evasive Testimony” in Suggested Readings. See Gutheil 2007. 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. in the present context. work product occupies a special category of privilege and is usually not discoverable. to say” but more relevantly. discursive. evasive testimony designed to avoid answering a question directly or at all. Work product A designation of privacy for material that is part of the attorney’s trial strategy.
106 Beepers at trial. 77 Bias. 70 merit of retaining attorney. 37 Alterations ethical. 24–29 social relationships with.” 106 Audiotaped interviews. 65 fighting at depositions. 121 American Academy of Psychiatry and the Law (AAPL). 16–18. 52. 82 negotiations with retaining attorney. 68–69 Attire at trial. 80 Body language. 78. 61 retainers. 49. apparent. 37–38 Ambivalence. 116 Alcoholic beverages. ethical model. 105–106 Analogies and metaphors.Index Accessibility airplanes. 35 Background of expert. 14 Adversarial context. 115 meals. See also Demeanor 141 . 87–88 Admissions. 7. 16 meeting with before deposition. 100 of expert opinion. 104 Advocate for truth. 49. 16 treater bias. 47–48 depositions. 45. 115 airline guides. 32. 23–24 Air travel. 25 Beat the Press (Fulton and Guyant). 4–5. 100–101 Alternative scenarios. Dress and appearance Attorneys communication with opposing attorneys. See Ethics informing of availability as forensic expert. 4. 15 Agency relationship. 70 “Attorneys’ Guide to Experts. 105–106 loyalty to retaining attorney. 62 needed for forensic functioning. 115 courtroom. 16 work product privilege. 59–60 Advances minimum fee. 8. 112 first class. xiii. 82–83 Announcement of forensic practice. 105 Assumptions. 9 nonsexual seduction. 74 Accuracy. 44. See Clothing. 26–28. 82 of reports. 105–106 American Board of Forensic Examiners. 4–5. 4. 19 hindsight bias. consulting with retaining attorney during. 106 American Psychiatric Association (APA). 113 Bipolar disorder. 74. 18 Billable time. 30–32 misunderstanding of clinical issues. 68 honesty of. 17 problems of loyalty and identification. 3–4 Advertising. 115 Alarm clocks. 63 Blackboard illustrations at trial. 60 Addressing judge at end of testimony. use of. 52. 117 “Alibi” issues.
81 Communication with opposing attorneys. or experts. 65–66 Confidentiality breaches as basis for suit. 39–40 Cellular telephones. 116 Coaching. 5. 118 Counsel. 25 Conflicting stories from parties in case. 113–114 Case name or citation in written report. 34 misunderstood by attorney. 33 scheduling. 44 nonconfidentiality warnings. how to handle in written reports. 108 Browbeating by retaining attorneys. 118 Criminal cases capital cases. 24. 83 breaks and recesses during. 30 validity of case. 23 Clinical material. 61. 4. 30–32 “nothing to go on” problem. 85–86 Brokerage organizations for expert witnesses. 113–115 trial appearance. 83 Courtrooms. legal. 116–117 metal detectors at. 137 report. 14 criminal responsibility cases. 33–34 threshold question. 70–71. 82 Child abuse issues. 71 Candor. 62. 107 Brokering a case when unable to handle it personally. 7–8. 66 Concessions at depositions. 99–100 Consent Form for Forensic Examination. 103–108 Camera. xiii. letters to. 73–79. 64–65 Cough drops or throat lozenges at trial. 86–87 Cross-examination. 77. 4 Class action cases. 19 Capital criminal cases. 33–34 merit of attorney. 48–49. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 32. 34 Compound questions at depositions. 77 Change of opinion. 74 Code language between attorney and expert. or data. 58–59 avoidance by attorney. 100 Consultation services. 82 Breaks and recesses depositions. 32 Building a practice. See also Video depositions gazing into the lens. litigants. money. SECOND EDITION Complaint. 95 Court reporters. 29–40 documents.142 THE PSYCHIATRIST AS EXPERT WITNESS. 99. 85–86 code language between attorney and expert. 30 Causation. 61 trial. 18–19. 69 Concentration at depositions. 97 Case review. 28 Correction of answers at depositions. 40 Child custody cases. 33 The court. 121–123 Constraints on time. 59–60. 82 Clothing packing for travel. review of. 77 unpacking at hotel. 17. example of outline. 13–14. 47–48 Competence issues. questions about. 38 Conflict of interest. 48–49 involving the insanity defense. See Attorneys Countertransference. 16. 14 Carry-on luggage. 65. 81 delaying tactics. 101–102 Crises while testifying at trial. 135 . 86 Borderline personality disorder (BPD). 28–29 Contingent fees.
76–77 written documentation to give listing of. 61 compound questions or answers. 84 pauses before answering. 75 Decision to take case. 68 of experts at trial. 65–66 consulting with retaining attorney during. 65 questions and answers. 73 use during trial. over-the-counter.Index demeanor during. 88 trial preparation. Privilege Discovery. 135 admissions in. 34. 64 language/word choice. See also Depositions interrogatories. 97–98 Daubert challenge. 92 Disabled individuals access to airplanes. 135. 69–70 videotaping of. 77 unpacking at hotel. 85 reasons for. 60 malpractice suits. 64 priority. 61. 69 Direct examination. 66–67 demeanor of deponent expert. 79–80 restructuring. 34 assessing. 59–60. See Records. 8 Double billing. 87–88 Depositions. 68 final preparation. 85 Dangerous examinees. 57–72. 74 Disclosure issues. 64 opinions and their bases. 57–58 nondiscoverable material. 66–67 locking in/limiting expert’s testimony. 34 stenographers in. 64–65 curious questions. questions about. 80–82 of examinees during interviews. 47 nonverbal responses. 59 limits of expertise. 91–92 privileged information. 114 . 5–6. 38 of experts at depositions. 116 Drinking. 113–115 trial. 77–79 Departure from courtroom. 31 Database. 63 goals of expert being deposed. Written documentation Doing no harm. 59 past. 80–82 leading questions. 66 concessions. 83 trial. 68 treatises. 68–69 breaks and recesses during. See also Interviews. 64 objections. 64. vast amounts of now stored online. 59–60 assumptions. Records leaving behind after trial. 64–65 later evidence affecting opinion given at deposition. See also Confidentiality. 85 quotes. See Privilege Documents. 66–67 143 interruptions. 70 “gerrymandering” clinical data. 68 fighting by attorneys at. 117 Drugs. 4–5. 29 Defendant. 62–63 reviewing. 83–86 “yes” or “no” questions. Reports. 113 Dress and appearance packing for travel. 115 access to courtroom. 58–70. See Parties in case Demeanor cross-examination. 26 pauses before answering. 135. 58–60 inappropriate questions. 62–63 concentration during. review of. 58–60 goals of opposing attorney. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 135. 65 correction of answer.
112–113. issuing. 13–21. 44 . 16 turndown rates. 15 social relationships with attorneys. 49–51 examples. 15 altering reports. 13–14. 9 Humor. 96 Harm. 2 Forms detailed fee agreement. doing none. 129–130 standard fee agreement. ethical model. 7–8. 6. or experts. 5. Reimbursement for travel Expert witnesses. 18–19 honest advocate model. scholars in. 112 Failure of retaining attorney to pay fee. See Meals Emotional injury cases. always soliciting. 24 Entrance of judge. 28. 28 Fairness. 75 Ethics. 25 Flashlight. 88 Fees. 17 special expertise of. 15 loyalty to retaining attorney. 44. for travel. 33 oaths. 136 spotting the other side’s. importance. See Air travel Food. See also Conflict of interest advocate for truth model. See also Written documentation Forensics. 103–108 Forensic reports. principles of. 47–48 cross-examination. 113 Fitness as expert. 30–32 of experts. 8 Hearsay. SECOND EDITION Family or friends. principles of.144 THE PSYCHIATRIST AS EXPERT WITNESS. See also Ethics of attorneys. 82 nonconfidentiality warnings. deposition and trial. 75–79. 61. sample. 129–130 standard fee agreement. 28. 78 Eating. See Meals Forensic countertransference. litigants. sample. staying with. 38 “nothing to go on” problem. 25 Honest advocate. 16 marketing a forensic practice. 32 Good writing. sample. 80 Fabrics. 60 False allegations. 25 External consistency of story. 107 new facts at trial. 37 Eye contact at trial. 14–15 Etiquette at trial. 100–101 billing. 26–28 detailed fee agreement. 28. 95–96. 125–128 Gestures at trial. 38. 62 Hired guns. See also Hired guns definition. 67 marketing. 1–3 Experts honesty of. 78 Global requests. 115–116 Humility factor. 6 High-profile cases. 15 remaining neutral. 125–128 travel costs. 50–51 interviews. 115 Feedback. xiii–xiv evidence in. 82 Hotels. 1 functions. 49–50 Employment relationship. 87–88 Evidence. See Fees. 15 Honesty. 52–55 History of expert. 28. 67 Expenses. 51–52 Hindsight bias. 36 “False memory” cases. See Countertransference Forensic practice. 80 Flying. of sexual misconduct. 113 contact with opposing attorneys. sample. 61. 115 Flip charts at trial.
112 Meals airplane food. 106 Letters to attorneys.Index Identification with retaining attorney. 115 during trial. 34–38 “alibi” issues. 47 standard of care. 37 interference. 51–52 Medical records. 2 entrance. pros and cons. 75 respect for. 18–19. 6–7. 18 Integrity. 36 internal consistency of story. 36 Internal consistency of story. 36 nonconfidentiality warnings. 83 testimony before. 16 Insanity defense in criminal cases. 45 Juries. 35 Involuntary gestures at trial. 116–117 Media coverage and cases. 53. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 47 elements of malpractice. 43–48 creating timelines for. importance of. 45 records. See Hotels Loyalty to retaining attorney. level of scrutiny. 38 emotional injury cases. 7 Listings as a marketing tool. 138 Marketing a forensic practice. 91–92 recording. 16. 82 Jet Smart (Fairchild). 99. 84 Leaving courtroom. 107 Interference of attorneys during interviews. 37 alternative scenario. 107 lecturing. 35 order of. 107 strategies. 35 priority. 36 Interrogatories. 87–88 dismissal by. 98 145 Laptops. suspending. 45 locality rules. 106 specialization. 79–80 Jurisdiction-specific language. 6 entrance of. 49–50 external consistency of story. 45–46. 48–49. review of. 35 retention of records. 75 informing of availability as forensic expert. 137 Insurance challenges. 97 to the court. 137 Intervening causes. 103–108 announcement of practice. 57–58. 79. 106 publishing/writing. 78 Jargon. 38 note taking. for travel. 34 . 115 Lawyers. 34–35 plausibility of case. 106 Locality rules for standard of care. 34–35 plaintiff. 86. 112 Judges addressing. 39 Interviews. 46–48 social service history. 49 demeanor of examinee. 105 Judgment. 106 listings. 86 Malingering. See Attorneys Leading questions on crossexamination. 87–88 Lecturing as marketing tool. 37–38 criminal responsibility cases. 36 presence of attorney. 45 Lodgings. 49. 95 Likelihood principle. 40 videotaping or recording. 105 ethics. 34 depositions. 119 Materials. 37. 52 Malpractice suits.
82 Mitigation of damages. 24–25 timing and scheduling. 30 Occasions. 137 Note taking importance of. 13–14. 112 Packing for travel. goals of. 117 Pretrial conferences. 100–101 Posttraumatic stress disorder. 70 Medication issues as basis for suit. 69 Plaintiff. 57–58 Objectivity. See Trial preparation Prescription medications. 74. 16. See also Marketing a forensic practice New facts at trial. 82 interrogatories. 54. 65. 64 Peer review for testimony. 85 depositions. 91–93 Precautions. 24 decision to take case. 80 Misunderstanding of clinical issues by attorney. 137 Negotiations with retaining attorney. 97 Preparation for trial. 29 fees. questions of. 34–35 Patience. 117 Metal detectors at courthouses. 26 Opposing attorney. 97 communication with opposing party. not compromising. use of. 64 interrogatories. 35. 113–115 Parties in case case name or citation in written report. 91–92 Privilege. 15 Objections depositions. 58–60 Opposing expert witnesses. 138. 26–28 fitness as expert. 25 bias. 40. 57–58 trial. See also Web sites storage of past depositions. 49–51 Practice pointers. 66. 44 Melatonin. 68 Pauses before answering cross-examination. 97 . 77 Personal injury cases. 82–83 Microphone use at trial. 26–28 Networking. 86 Nonconfidentiality warnings. See Parties in case Plausibility of case. consulting with retaining attorney at. 38 Nonsexual seduction. 74 Prior testimony by expert. 5. 39 vulnerability of plaintiff (“thin skull”). 52–55 contact with. 118 Metaphors and analogies. while traveling. 65 work product privilege. 115 Preexisting illnesses or conditions. 88 The Packing Book (Gilford). 45. 50 Preliminary reports. 25 initial contact. effect of. 49–51 Morality. writing for. 71 Oaths. 24 request of retaining attorney. 47 during interviews. 137 depositions. 4–5. 36 Politeness. 82. 47–48 plaintiff interviews. 17–18. 81 Postreport negotiations. See Emotional injury cases Physicians’ Desk Reference (PDR). 77 keeping notes. 16–18 clinical and forensic issues. 104. SECOND EDITION Online. 67 National Forensic Center. See also Confidentiality deposition. 25–26 Priorities. 106 Negligence. 14. 24–29 background of expert.146 THE PSYCHIATRIST AS EXPERT WITNESS. 47–48 Outcome of case. 8 Pens and pencils at trial. 114. 15. unfailing.
48 Sleeping. 25 Reasonable medical certainty. 31–32. 7. See also Written documentation Reputation of expert. 131–133 travel books. power of. 7. 97–98 Supporting data for written reports. Robert I. 113 Relatives. 75–76 Seduction. 75 Sexual misconduct cases. 46 criminal responsibility cases. 138 Rebuttals. review of. 51–52 Quoted passages. 40 Returning calls. 16 Social service history.Index Pro bono work. 14 147 Retaining attorney. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). 117 Social relationships with attorneys. See also Malpractice suits Suitcases. 107 Standard of care. 38–39. 54. See Negotiations with retaining attorney Retention of records. 73–74. 15. 3. 70 Skepticism. 6. 54 Resources for suggested readings. 138 of witnesses. 17–18 Self-serving behavior. 33. nonsexual. 108 written documentation. 40 case review. 115 Rental cars. staying with. 5–6. 106 Publicity and cases. 49 database of. 34 retention of. level of scrutiny. importance of. 81 Sworn statements. 24 Publications by expert. 108 Roles of expert. 18. 79 Stenographers. review of. 33–34 CATO model for. 45–46. showing toward juries. 93 Seating at trial. 92. See Oaths . 107. 34 malpractice cases. 91–93 personal conflicts. 9. negotiations with. 104–106. 46–48 medical records. 100 Recesses. 9. 25–26 as marketing tool. 47 Referrals. 112 Reality-testing. 6–7. See Breaks and recesses Recorded interviews. See also Court reporters in depositions. reasonable medical certainty. 53. 49 Sequestration. 82. 119 Site visits. 64. 36. 6 Scheduling issues. 82 Silent treatment. 138 Standard of proof. suggested. 85 Readings. 47 Socratic method. 35 Records.. 79. 112–113 Santayana. 68 Storytelling. George. 131–133 travel books. 113–114. 26–28. obtaining in advance. 74 Reimbursement for travel. 66 Simon. xiv. 97 Rehearsing testimony. 99 Surprised expert. 112 Respect. 95–102. 3 Suicide malpractice cases. 138 Professional meetings. 106 Psychiatric malpractice suits. 44. response to. traveling with. maintaining appropriate. 112 Reports. 25 Required action. 83 Retainer. 28–29 Running shoes. 43–45. 40 social service histories. See also Packing for travel Supplementary reports. 6 Specialization.
85. 116 Treater. marker board. 77 pointers. 115–116 meals. 60. or flip chart. See also Cross-examination prior testimony by expert. 111–118 billing. 74 presentation. 76–77 water. 77 returning calls. 115 lodgings. 117–118 Trial preparation. 77 courtroom. 28–29 Third-party cases. See also Ethics. 139 Type of practice expert has. Honesty Turning down cases. 77–79 departure from courtroom. 26–28 travel time. 45–46 Types of cases. 112–113 travel information. 80 humor. 86 pens and pencils. 77 what to bring into court.148 THE PSYCHIATRIST AS EXPERT WITNESS. 75–79. 44 Throat lozenges or cough drops at trial. 74 Teaching role. bringing into. 87–88 eye contact. 80. 85–86 conclusion of questioning. 112 unpacking. 112–115 sleeping. 64 for interviews. 86. 87–88 dress and appearance. 44. 87 . 35 keeping track of. 55. 73–74 language/word choice. 75–76 supplies. 13. blackboard. 48–49 emotional injury cases. 8–9 Treatises. 74 planning. effect on standard of care. 82. 77 breaks and recesses during. 108 wake-up calls. 74 pitfalls. 74. 74. 8. 61. 74 rehearsing. 113 Travel service. 81–82 priority. 19. 74 Truth telling. 76–77. 79–80 timing and scheduling tips. See Meals packing. 117 time planning. 73–90 beepers/cellular telephones. 77 etiquette at. 80 pretrial conferences. 118 Time creating timelines. 74 using database during. 92. 112 Traveling. versus expert. 112 Travel expenses. 39–40 Travel books. 79–80. See Crossexamination demeanor at. 51 evaluating. 86 cellular telephones. 80 new facts coming to light. 73–74 practice sessions. 69–70 Treatment recommendations. 86–87 cross-examination. 34 for depositions. 77. 35 flying. 117–118 testimony. 80 language/word choice. 118 crises while testifying. 91–92 seating at. questions about. 37–38 Trial. 78 illustrations. 112 Traumas. 77. SECOND EDITION cough drops or throat lozenges. 139 Taxicabs. importance of. effect of. 49–51 Tarasoff-type cases. 82–83 lunch during. 78–80 Telephones calls during trial breaks. 43–56 criminal responsibility cases. 14–15. 116 Testimony at trial. 113 examinees. 82. 116–117 microphone use. 25–26 roles of expert.
97 conclusion. 7 Waffling in answers. 115 in courtroom during trial. 116 Water during air flights. or data. example of outline. 97–98 supporting data. 100 criminal case. 51–52 psychiatric malpractice cases. 98–99 conflicting stories from parties in case. 100 referrals. 101–102 database listing. 104–105. 74 Voltaire. 95–102. See also Records. 64–65 reports. 79. 97 interviews/items reviewed. 44 White noise.” 2. 97–98 headings. 140 Written documentation. 35 Visual aids. 100–101 preliminary report. 100–101 trial preparation.Index high-profile cases. 108 Work product privilege. 117 Word choice depositions. 82–83 149 Word-of-mouth referrals. 98–99 postreport negotiations. 67 Video depositions. 97 principles of good writing. 140 examples of. 97 occasions. Reports case name or citation. how to handle. 70–71 Videotaped interviews. 43–48 “Ultimate ethical test. 107 Weight to be given to on-site psychiatrist’s observations. 99–100 constraints on time. 98 letters to attorneys. 82 Values. 53–54 Wake-up calls. 4–5. 97 opinion. misunderstanding by attorney. questions of. 70. 77 Web sites. money. 96 rebuttals. 139 Understanding of clinical issues. 99 . 97 supplementary reports. 74.” 18–19 “Ultimate issue. 97–98 jurisdiction-specific language.
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