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The Psychiatrist as Expert Witness
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England . Massachusetts Washington.The Psychiatrist as Expert Witness Second Edition Thomas G. DC London.D. Harvard Medical School Boston. Gutheil. M.
paper) 1. c1998. schedules. Expert—United States. 1000 Wilson Boulevard Arlington. we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Dr. Expert Testimony. Forensic psychiatry—United States. Moreover.org Library of Congress Cataloging-in-Publication Data Gutheil. Title. therapeutic standards may change.G8 2009 614′. specific situations may require a specific therapeutic response not included in this book. 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. 2. . represent the views and opinions of the individual authors and do not necessarily represent the policies and opinions of APPI or the American Psychiatric Association. p.Note: The author has worked to ensure that all information in this book is accurate at the time of publication and consistent with general psychiatric and medical standards. Gutheil has no competing interests to disclose. Gutheil.1—dc22 2008044431 British Library Cataloguing in Publication Data A CIP record is available from the British Library. I. Companion to: The psychiatrist in court / Thomas G. II. Books published by American Psychiatric Publishing. — 2nd ed. Inc. Food and Drug Administration and the general medical community. Includes bibliographical references and index. 2. American Psychiatric Publishing. cm. Psychiatrist in court.appi. ISBN 978-1-58562-342-6 (alk. Gutheil. and that information concerning drug dosages. Inc.S. Forensic Psychiatry. The psychiatrist as expert witness / Thomas G. Copyright © 2009 American Psychiatric Publishing. [DNLM: 1. For these reasons and because human and mechanical errors sometimes occur. however. Gutheil. Thomas G. Thomas G. and routes of administration is accurate at the time of publication and consistent with standards set by the U. W740 G984pf 2009] KF8965. VA 22209-3901 www. Inc.. Evidence. As medical research and practice continue to advance.
. To Shannon. truly the wind beneath my wings.To my children and the hope of the future.
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . 13 Turndown Rates. . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 The Expert’s Ethical Universe. 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Treater Versus Expert . . . .Contents About the Author . . . . . . . . 3 The Prime Question . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . xv 1 Introduction: What Makes an Expert? . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . 4 Confidentiality Warnings . .
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
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. Harvard Medical School.About the Author Thomas G. Recipient of every major award in the forensic field. received the Manfred S. M. Clinical Handbook of Psychiatry and the Law. Through more than 250 publications and many lectures and seminars in national and international fora.D. Appelbaum. he has taught many clinicians about the interfaces between psychiatry and the law. M. xi . 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. Guttmacher Award as the outstanding contribution to forensic psychiatric literature. Gutheil. coauthored with Paul S.D. the textbook. and now in its fourth edition.. cofounder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. and a Distinguished Life Fellow of the American Psychiatric Association.. He is the first professor of psychiatry in the history of Harvard Medical School to be board certified in both general and forensic psychiatry.
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Often the greatest difficulties in this profession occur at the outset. before experience itself has had the opportunity to provide the most durable and valuable instruction. xiii . and at the request of past readers of the first edition. it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. Such service presents many stresses and equally many satisfactions. a number of basic points from that book are covered in early chapters of this second edition for readers who would benefit from such a review. interspersed with frenzied bursts of action.Preface to the Second Edition What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. This book may provide guidance to you in that activity by drawing on decades of experience in the courtroom and countless beginner’s mistakes to help you avoid the same pitfalls. and cases or principles that I have learned about since the first edition. an expanded discussion of bias in testimony. in fact. if you feel shaky about the basics. you might consider this book to be next in logical and chronological order to the companion volume in this series. The Psychiatrist in Court: A Survival Guide. other changes in this second edition include: a glossary of useful terms. additional illustrative examples. a model forensic consent form for examination. expanded definitions of key concepts. 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. Forensic psychiatry is growing in popularity. Moreover. In addition. that book is a good place to warm up. As an aid to present readers. and many a practitioner feels the urge to try out this fascinating realm. this edition also contains things I wish I had said in the first edition. besides the requisite updating of references and suggested readings. which is aimed primarily at the treating psychiatrist who may end up in a courtroom. From another perspective. it provides tedious stretches of waiting and inactivity.
SECOND EDITION If your early court experience has not been too traumatic. but choosing to go. the later chapters may yet prove useful. kicking and screaming. in part because they represent material never covered in other sources. Best wishes for success in your burgeoning career as an expert witness. for such readers. concrete advice replaces abstract theorizing. . M. hands-on mentoring and guidance that were not readily available in the past. attempts to provide some of that practical. drawing on developments subsequent to its first version. This new updated edition.xiv THE PSYCHIATRIST AS EXPERT WITNESS. The more seasoned expert may wish to skim over the more familiar material in the text. You who are in that position are also my audience. Thomas G. Indeed. 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. may be considering undertaking this activity on a voluntary basis for a change—not being dragged into court. whenever possible. and informal discussion in a user-friendly tone replaces scholarly discourse. the novice court goer. you. I hope you find this approach useful.D. Gutheil.
Acknowledgments I am indebted to the Program in Psychiatry and the Law at the Massachusetts Mental Health Center. Hilliard. Candace Love of On-Point Research for valued assistance in compiling resources. for the ongoing dialogue and conceptual enrichment that form the underpinning of this work. I especially thank “Dr. Esq. Harvard Medical School. Larry Strasburger.” James T. Phillip J. and to Ms.D. xv . and Ms. M. Ellen Lewy for absolutely indispensable assistance with the manuscript. and Shannon Woolley for their careful review and most helpful critique and comments. for extremely helpful critique and suggestions and for many years of superb medicolegal advice. for permission to use some of his material on writing for court. Resnick.. to Drs. Harold Bursztajn. Stephen Behnke..
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Indeed. the concept of a psychiatric expert witness. even if those conclusions are based on others’ observations. This is true in the legal sense at a certain level but insufficiently illuminating for the purposes of this book. this intellectual challenge is one of the features that makes forensic work so exciting and interesting to its practitioners. A reductionistic answer is this: an expert is anyone whom a court accepts or whom it stipulates (grants without challenge) as an expert. 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. clinically defined. 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 this book. is a psychiatrist who uses particular skills. in contrast the expert is entitled by the role to draw conclusions. an expert witness may review a chart filled with other clinicians’ observations 1 . that is. More narrowly. For example. In the courtroom setting. both clinical and nonclinical. the question “What makes an expert?” seems to answer itself: expertise makes the expert. the question of what makes an expert witness is more complex.CHAPTER 1 Introduction: What Makes an Expert? AT FIRST GLANCE. knowing a lot about a certain topic and having extensive experience therein. to provide information and understanding relevant to the legal system’s concerns.
incompetent.” This issue is discussed further in later sections of this text. the expert must supply the relevant reasoning to permit the jury first to grasp the issue and then to perform its decision-making function. As a rule experts should limit themselves to criteria-driven. such as: Did a particular course of treatment meet the medical “standard of care”? Because jurors are not expected to be physicians. competence. I believe this person. opinionphrased descriptions rather than conclusory statements: “in my opinion. 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. not the ultimate finding that a judge or jury decides. such as competence or insanity..I do not want someone who [merely] teaches others about it. some attorneys appearing in public fora such as television shows to disingenuously downplay or even dismiss the need for experts. I’d want to be treated by this person because he/she makes sense. at times. insanity. that is. the jury is free to accept or reject the expert’s testimony in whole or in part. Indeed. However. are the very same ones who had retained me on a previous case.2 THE PSYCHIATRIST AS EXPERT WITNESS. SECOND EDITION and provide the court with an opinion as to whether the care so recorded was negligent. 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. Other conclusions in the form of opinions might involve whether a particular person met various legal criteria. about matters that are beyond lay knowledge or decision making. the expert is to educate the retaining attorney. some questions can only be answered by a specialist. Note in regard to the issue of ultimate findings. 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. from ballistics to the temperature of coffee sold at fast-food franchises. A lay juror is assumed to be capable of deciding which of two contradictory pieces of testimony is more credible. or malingering.. because what an expert offers is “only” a witness’s opinion. . then the judge or jury. and so on. Scholars in forensics point to the courts’ need for expert witnesses in a primarily educational context.. What I find bemusing is the fact that. the defendant met criteria/failed to meet criteria” rather than “the defendant was insane. if I had this problem. the court system needs expert witnesses in a burgeoning variety of technical fields.” You want someone who will present in a way that the jurors would be inclined to say this. proclaiming their ultimate faith in the jurors themselves. For that matter. Under this model.
In one scene. pp.Introduction: What Makes an Expert? 3 Another scholar. Most clinical work occurs in the context of the alliance. a law professor. surmounted. are so essential to this work that I review them in the following discussions. consider this scene: In the movie Amadeus. clinical entities. In this chapter. 2) make the fact finder want you to win. the emperor is initially resistant to Mozart’s novel music. The foremost of these. eyes glowing with interest. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. oppositionality. The emperor leans forward. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms. syndromes. 3) make sense out of the law. to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. 4) help the fact finder see the facts. statistics. some points. (2. and throughout this book. The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. 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. I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts. went even further by listing the functions of the expert as being to 1) tell the story. and the one often most troubling to clinicians. demographics. The highly experienced defense attorney who had retained me was heard to mutter at one point. at family functions. and the resulting probabilities. 4–5) Other scholars agree that one of the principal functions of the expert is to tell the story. Mozart begins to describe the opening scene of The Marriage of Figaro. and an adversarial atmosphere are problems to be avoided. causation. conflict between the parties. Despite his doubts. “Where are the communion pictures?” Pressed for a less cryptic expression. however. or resolved or otherwise put to therapeutic use. is the adversarial context. with Figaro kneeling on stage taking the measurements of his marriage bed. although basic. . Showing pictures of the deceased at communion. The power of storytelling was captured in a movie about the career of Mozart. and so forth would have accomplished this vital storytelling purpose. he has become engrossed in the story. and 5) argue the case (1).
. and other papers that the attorney generates in the course of litigation. in the forensic setting. because that position confers greater neutrality and protection for your efforts. the retaining attorney or court). must first ask the question. Although there may be as many views of the patient as there are team members. whether testifying or consulting.e. ambivalences may be divided between the two parties in the case rather than felt internally by either. Unlike the search for consensus in the clinical setting.” a mandate that may trump other claims on your agency. In other words. you usually do not). and complexity may be lost in the effort to persuade the jury that a clear result should occur (3). they are not case-related documents and therefore are protected from disclosure. the court situation is a zero-sum game: one winner. in the clinical context. SECOND EDITION Compare how treatment planning might occur in the inpatient setting. Note for completeness that certain forensic contexts. but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator. two of the victims of this concept are ambivalence and complexity. memoranda. as well as the usual lack of a physicianpatient relationship (i. both of which reside in every case and every patient or litigant. files. one loser. for whom am I working? Your answer will clarify your location within the adversarial framework.. I define the term work product to include the notes. even if it is a compromise (3). The Prime Question Any forensic psychiatrist. This specialized topic is beyond the scope of this book. in a forensic setting. The usual guiding principle in such determinations is “the best interests of the child. In the legal context.e. 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.4 THE PSYCHIATRIST AS EXPERT WITNESS. such as child custody evaluations. render highly complex the question of agency. Like other consultants. For example. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. you work for the consultee (i. Com- . challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. In medicolegal work. the adversarial context is one of the “givens” in the situation. The question of whom you work for also will alert you to major pitfalls of bias. 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. meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. you usually work for the patient.
Although therapy usually transpires within the patient’s self-reported data. and captured as well in the consent form for forensic examination as Appendix 1. court-related issues are often matters of public record and public exposure (in open court). 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. of course. or impression. fantasy. be carefully documented. convicts. correspondence. between the “whole truth” and the “admissible truth” (4). my own or others’ interview notes. or basis. defendants. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work. Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy. In contrast. As we will see later.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. with exceptions. suspects. Most attorneys know not to include details of their trial strategy in letters to you. Warnings are further discussed in later sections about the interview itself. legal documents. with some exceptions. lest they be exposed prematurely to the other side. we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs. The retaining attorney will guide you in this matter. The issue here is the tension. The term also suggests that an expert’s opinion rests on a base. it should. and relevant literature. is private and confidential. later addressed. 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. 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. One trenchant reason for this approach is to obtain corroboration or discorroboration. Therefore. your personal attorney can always give you advice on nondiscoverable matters. reports. the forensic perspective almost always extends beyond the individual examinee. . including records. of data—facts and clinical verities—rather than on idiosyncratic theory or whim. litigants. when in doubt.
the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. hearsay. Because a patient in treatment is willingly coming for help. This painstaking. absent clear delusions. and similar signs. but the Socratic method is one of the mainstays of courtroom procedure. obvious self-contradiction. it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness. the common method of the lecture is replaced by another approach: the Socratic method of question and answer. The witness should be guided by the maxim: when entering the courtroom. In contrast. though under oath to tell the whole truth. do not demand to be heard: answer all the questions and then stand down when dismissed. as reported by the mother to the social work intern and then passed on to the social worker who shares it with the team—may constitute valuable clinical data. prejudice. In practical terms the expert witness. SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said. corroboration. hearsay-ridden trail by which it comes to the team’s attention. 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..6 THE PSYCHIATRIST AS EXPERT WITNESS. and the like (4). Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony. be it moral or monetary.. which preclude admission of certain kinds of data or evidence in the name of justice. Once again. detailed. or discorroboration . may be forced into limitations on this promise because of countervailing considerations of precedent. — George Santayana Unlike the treatment context. The Socratic Method Although expert testimony has been compared to teaching. despite the convoluted. Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon. always seeking out verification. the forensic practitioner is wise to suspect everyone of having some stake in the matter. and to maintain an appropriately skeptical posture. experts in court must play by court rules. (3) Such useful data would likely be ruled inadmissible by the rules of the legal process. one is guided by its rules. Yet the court may be driven by principles of fairness. fundamental fairness.
and leads physicians of all specialties observing. ask about the local variant. For most of us. makes forensic psychiatrists unpopular with their clinical colleagues. Although some will cry that there are exceptions. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. for example. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work. a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. sell time. Note that there may be some jurisdictional variation on this point. Rather. to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. — Voltaire The investigative efforts previously implied permit the expert to offer testimony at the requisite standard of proof called reasonable medical certainty (sometimes described as reasonable psychiatric certainty. but certainty is absurd. or even reasonable psychological certainty). The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose.g. including forensic psychiatrists. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires.Introduction: What Makes an Expert? 7 for all important facts. Other contextual clues about the hired gun are overly candid advertising in legal media (e. 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. regardless of its clinical or empirical validity. As a general rule. forensic work is a sideline to our clinical focus. All psychiatrists. we are paid by time criteria. This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work. high-profile insanity cases. Reasonable Medical Certainty Doubt is not a very pleasant condition.. honest experts should avoid these approaches to .
so this question may be difficult to resolve in any objective sense without analysis of that expert’s database. you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. 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). if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9. There are complexities in this area that should be addressed. SECOND EDITION finding work. although the clinician is obligated to place the welfare of the patient above other considerations.) 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. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. you avoid temptation to skew your opinion. reasoning. Thus. The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced. it is an excellent way to benefit from the teaching of colleagues and to share ideas. the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that . legal. see reference 5 and the appendix to reference 3). case materials. (By the way. ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. there are significant clinical.” in this volume). and you maintain your ethical compass direction.8 THE PSYCHIATRIST AS EXPERT WITNESS. If a clearly meritless case is offered to you for review. summarized as follows (for more extensive discussion of this point. and ethical incompatibilities with serving as your patient’s expert. First. and corroborating data. all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings. Often no absolute standard exists by which to measure opinion testimony. Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. because these provide a base of financial stability that enables you to turn down cases. “Developing and Marketing a Forensic Practice. 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. For various reasons (5–7).
Attorneys seem to display a curious indifference to these incompatibilities. I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). or the belief that the attorney can sell the jury on the idea that “the treater knows this person best.Introduction: What Makes an Expert? 9 the treater gives in court. For these and other reasons the treater should resist serving as the expert witness for his or her own patients.. the treater has usually had only the patient’s reports on which to rely. Master forensic psychiatrist Robert Simon.” This provocative image should be kept solidly in mind. Third. rather than the entire forensic database. not the engine. the wish to avoid paying expert fees that are usually higher than those of treaters. the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book. 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. in contrast. Second. most treaters do not give their patients the forensic warnings noted earlier against self-incrimination.D. 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. 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. whether because of simple ignorance of the above distinctions.” Although this last is true in certain respects. Indeed. the therapeutic alliance. even though this may occur appropriately under legal rules. though essential for therapy. as noted in the section on malingering above.” Even when the expert is the only source of data that the jury receives. thus leaving the jury free to vote its “gut. The Humility Factor Finally. . Early in my career. treaters called into court may violate the confidentiality of the clinical setting. From this viewpoint. constitutes a bias for forensic functioning. it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. the expert goes in skeptical. M. has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation.
Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. New York. Accessed August 5. 8. New York. 2008. 1997 Gutheil TG. 3. 2007 Barsky AE. Lippincott. Baltimore. MD. FL.asp. 7.gmc-uk. 2002 Bronstein DA: Law for the Expert Witness. Available at: http://www.org/guidance/ethical_ guidance/expert_witness_guidance. Suggested Readings Ackerman MJ. 1992 Appelbaum PS. American Psychiatric Press. Testifying and Everything Else You Need to Know. Expert’s Quarterly (Winter): 2.10 THE PSYCHIATRIST AS EXPERT WITNESS. J Am Acad Psychiatry Law 33:55–58. Lippincott. MD. 4. Bull Am Acad Psychiatry Law 20:153–162. Gutheil TG. J Am Acad Psychiatry Law 25:233–247. DC. 2008 . Am J Psychiatry 154:448–456. Gutheil TG: Clinical Handbook of Psychiatry and the Law. Depositions. 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. et al: The “whole truth” vs. 5. 1998 Gutheil TG. J Am Acad Psychiatry Law 34:14–21. Boca Raton. Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Kane AW: Psychological Experts in Divorce. 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. Simon RI: Narcissistic dimensions of expert witness practice. Washington. 1993 Buchanan A: Psychiatric evidence on the ultimate issue. Harv Rev Psychiatry1:4–5. Lewis Publishers. Personal Injury and Other Civil Actions. SECOND EDITION References 1. “the admissible truth”: an ethics dilemma for expert witnesses. 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Wiley. Williams & Wilkins (Wolters Kluwer). 4th Edition. 2005 2. Baltimore. 1997 Gutheil TG. 2003 Strasburger LH. J Am Acad Psychiatry Law 31:422–427. 2006 Catto G: Acting as an expert witness. Gould JW: Clinicians in Court: A Guide to Subpoenas. British Medical Journal 337 (#7664). Williams & Wilkins. Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law. 6. August 2. White MS. 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Guilford Press. Hauser MJ.
1994. pp 233–248 Rogers R. Bull Am Acad Psychiatry Law 2:119–132. Psychiatric Services 52:1526–1527. New York. Washington. 1992 Dietz PE: The forensic psychiatrist of the future. NJ. 1989 . Hillsdale.Introduction: What Makes an Expert? 11 Diamond BL: The forensic psychiatrist: consultant versus activist in legal doctrine. J Am Acad Psychiatry Law 30:10–13. Behavioral Sciences and the Law 7:145–180. 2005 Simon RI: Psychiatry and Law for Clinicians. Gold LH: Textbook of Forensic Psychiatry. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 1987 Golding SL: Mental health professionals and the courts: the ethics of expertise. in The Psychiatrist in the Courtroom. DC. Analytic Press. 2001 Quen JM: The psychiatrist as expert witness. 2002 Smith SR: Mental health expert witnesses: of science and crystal balls. American Psychiatric Press. Int J Law Psychiatry 13:281–307. Bull Am Acad Psychiatry Law 15:217–227. 1990 Gutheil TG. DC. Washington. 2004 Slovenko R: On the therapist serving as a witness. 2001 Simon RI. Springer Science+Business Media. 3rd Edition. American Psychiatric Press. Hilliard JT: The treating psychiatrist thrust into the role of expert witness. Edited by Quen JM.
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rather than help... while a judge alternately stomped on an unreliable accelerator and an unpredictable brake.” They may forget that this encounter is not therapy. I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.” (1.[Finally] I realized that each witness chair comes equipped with a stabilizer control. S-3) THE EXPERT faces many challenges in forensic work. p. examinees being interviewed by a psychiatrist. and its results may harm. In this chapter. It is a control easily within the reach of every witness—the lever marked “truth. particularly an empathically attuned one. the ethical expert be13 .CHAPTER 2 The Expert’s Ethical Universe My first adventure in the witness chair convinced me that it was as unstable as a one-wheeled rickshaw on a downhill course. First. tend to drift unconsciously into a “therapeutic mode. but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray.. it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road. their ultimate goals in the legal process. To prevent such inadvertent abuse or exploitation of the examinee.” The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume.
indicates the intention of explaining your information to the client.) For example. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. indeed. In a not-so-ideal situation. You pass this information on to your retaining plaintiff’s attorney. Rather. If you turn down most cases you get. Therefore. who—in the ideal situation—accepts this view. For symmetry. Turndown rates between 10% and 30% are not uncommon. SECOND EDITION gins with warnings about the differences between the forensic and clinical interview and. 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. defensible. this case might be called a defense case because the actions of the defendants are. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. the attorney curses your name. you are friends with one of the defendants). either your threshold for validity is too high or you need to meet a better class of attorneys. denounces your integrity. understandably. impugns your ancestors. 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. and states. The warnings (carefully documented. (Note that even if you cannot support all of the claims proffered in the case. If you take every case you review. this case is over and has been turned down.g.. 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. your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care.14 THE PSYCHIATRIST AS EXPERT WITNESS. that the firm will not be using you as an expert. you must consider whether your threshold for case validity may be too low. and slams down the telephone. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1. scoffs at your qualifications. thanks you for your help. After settling up any monetary adjustments. the turndown rate is the percentage of cases in which. in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney. Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. after reviewing. 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. you decide you cannot support the retaining attorney’s position.
that is. inpatient care. they do represent cases in which you have elected not to participate.” Once under oath. An author described the special sensitivity to what one can swear to in this way: You are asked.” Your correct answer would be. This model has been called the honest advocate model. and the expert becomes the fully neutral observer and reporter. all of which you might accept.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. you take nothing for granted. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think. Consequently. Consequently. The second model holds that accepting the reality of the adversarial system is simply part of being an expert because that is the arena in which you work. say. Nevertheless. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you. “What color is that house over there?” The novice answers. The third model and the one probably in most common use might be called advocacy for your opinion (rather than. and so on. In forensic practice. “White. and 2) you answer cross-examination truthfully (see the following discussion). Partisan pressures from the adversary are put aside. Although these referrals are not strictly turndowns. This model is sometimes called the advocate for truth model. that position is always acceptable. the only touchstone is absolute truth as you know it or understand it. speculate about. all of which you should turn down. or a number of invalid or meritless cases. most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert. guess. 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. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold.” . for a particular case outcome). as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony. only over those you elect to accept. for example. it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able. you could receive a number of good cases. “White on this side. One model holds that once the oath is taken.
with whom you have done many a previous case together. similarly. or make whatever use of your opinion that may be of service. SECOND EDITION Problems of Loyalty and Identification The relationship between the expert and the retaining attorney may undergo the vicissitudes of other professional alliances. Extending this idea. 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.16 THE PSYCHIATRIST AS EXPERT WITNESS. might extensive socializing with the retaining attorney—or. A pitfall in this area might be called forensic countertransference. The attorney is free to find another expert. yours are providing ethical and valid consultation or testimony or both. this identification may compromise your needed objectivity. just what does the expert owe the retaining attorney? Strictly speaking.. is misreading the nature of the ethical contract between the two parties. identification with your retaining attorney (discussed more extensively in ). . you do not owe agreement with the attorney’s position or theory of the case. you may come to like. and admire him or her. discussed further in Chapter 3. this factor would require greater scrutiny of the relationship by the forensic witness. These quite natural feelings may lead to an identification with the attorney and with the attorney’s goals. under the rubric of loyalty. This difference is significant. you owe only serious. The novice expert who adjusts or bends or twists an opinion away from clinically based validity. First. If the attorney. settle or drop the case. The worst betrayal of the attorney-expert contract is the shock and surprise that an attorney feels when your testimony in deposition or on the stand takes a turn totally out of synchrony with your previous disclosures and discussions with the attorney. but two dimensions of the relationship pose potential ethical problems.” in this volume). out of feelings of being loyal to his or her retaining attorney. “First Principles. and what you can and cannot testify to under oath. As you work closely with your attorney. the skeletons in your closet. but the likelihood of identification bias would surely seem to be greater. your opinion and its limitations.g. Recall that the attorney’s goals are winning the case. The varying forms of bias are discussed below. that is. thus. committed quality work. 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. You do owe it to your attorney to level with him or her about yourself (e. that is not your problem. respect. is disappointed that your present opinion is unfavorable.
Assuming that the expert arrives in the city where the trial is being held and would ordinarily eat dinner anyway the night before trial. this effort may be termed nonsexual seduction. 33) However. bias can be exceedingly subtle. 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. such as overidentification with the judge or the “system. if the countertransference is unmanageable. and may add blandishments such as dinners at expensive restaurants and the like. There is no shame in this. of course. This neutral position is highly desirable for that reason. an attorney. might well be reminded of other similar cases in the attorney’s caseload that now seem tailor-made for this expert’s qualifications. 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. In this model the attorney lavishes praise on the expert. it is quite appropriate that the attorney join the expert at dinner to discuss the case in preparation for trial in a relaxed environment. The situation does reveal some complexity. eliminate other subtler biasing factors. The fact that the position is more or less neutral does not. although not common in practice. The . 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. you are expected to manage your countertransference toward the examinee or the examinee’s actions. Subjects’ comments in the study emphasized the importance of maintaining perspective in order to resist such attempts at influence. promises many future retentions. (p. Similarly. as a clinician. who is favorably impressed by the expert’s knowledgeable and skillful analysis of one case.” Note also that. many expert biases are not detected either by the adversary system or even by the experts themselves. 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. If you are a victim of child molestation. you should refer the case. for instance. 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. 337). p. you may feel unable to examine objectively a child molester. Somewhat idealistically.
the true extent of their opinions. the opposing attorney exerts the push of attempted impeachment. both pull and push must be resisted. 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. yes. and the limits of your testimony. and the hypothetical situations under which their conclusions would be different. the expert’s task might be described as “to protect the truth of the opinion from both attorneys. the limits of your credentials. your ultimate test as an expert is your honesty under cross-examination when you must acknowledge. The less admirable experts. Again. p. Such candor may well enhance their credibility. Gutheil and Simon (6). the limits of your knowledge. likely be explored. expert testimony is like that.” Your retaining attorney exerts the pull of retention. loyalty. and their testimony is often unconvincing. none of this information should be a surprise to your retaining attorney. having become inappropriately enamored of their opinions rather than of the truth. 261. In the process of cross-examination. Therefore. experts can be separated into two categories. 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 more admirable experts calmly acknowledge the details of the case unfavorable to their opinion. defend those opinions passionately and fiercely on cross-examination. if appropriately asked by the other side. Finally. the limits of your conclusions. and identification as above. while servants beat him with knotted towels. .The Expert’s Ethical Universe 19 TABLE 2–1. the limits of your data.
3. 2. 1992 . 2002 Gutheil TG. Prof Psychol Prac Res 33:307–309. J Am Acad Psychiatry Law 27:546–553. December 2004. 2007 Gutheil TG. Springer Science & Business Media. 39 Gutheil TG. 2001 Slovenko R: Discrediting the expert witness on account of bias. J Am Acad Psychiatry Law 29:336–339. Baker TO: Operator’s Manual for a Witness Chair. seducing and threatening: a pilot study of further attorney pressures on expert witnesses. WI. Williams & Wilkins. Weinstock R. Bull Am Acad Psychiatry Law 20:141–152. 6. Milwaukee. Psychiatric Times. American Psychiatric Publishing. 2004 4. 1990 Brodsky SL. Martinez R: Forensic Ethics and the Expert Witness. pp 33. New York. 4th Edition. 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184. Commons ML. McKinzey RK: The ethical confrontation of the unethical forensic colleague. Simon RI: Avoiding bias in expert testimony. Gutheil TG: Expert witness perceptions of bias in experts. DC. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. 1999 Commons ML. Baltimore. 1992 Lynett E. Miller PM. 8. SECOND EDITION References 1. Defense Research Institute. Psychiatric Annals 34:260–270. 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. J Psychiatry Law 28:449–457. Washington. Bull Am Acad Psychiatry Law 20:163–177. 2004 Gutheil TG. Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. 1983 Appelbaum PS. 38. Miller PM: Withholding. 2001 Miller RD: Professional vs personal ethics: methods for system reform. 2008 Katz J: The fallacy of the impartial expert. Int J Law Psychiatry 13:249–259. J Am Acad Psychiatry Law 36:195–200. Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. J Am Acad Psychiatry Law 32:70–75. Gutheil TG: Clinical Handbook of Psychiatry and the Law. 36. 7. MD.20 THE PSYCHIATRIST AS EXPERT WITNESS. 5. 2002 Candilis PJ. objectivity and fair compensation. Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty.
Behavioral Sciences and the Law 5:149–160. Prof Psychol Res Prac 34:219–224. 2008 Weinstock R: Perceptions of ethical problems by forensic psychiatrists. 1989 Weinstock R. 1993 Shuman DW. J Am Acad Psychiatry Law 36:167–174. 2005 Rogers R: Ethical dilemmas in forensic evaluations. 1987 Schultz-Ross RA: Ethics and the expert witness. Hosp Community Psychiatry 44:388–389.The Expert’s Ethical Universe 21 Norko MA: Commentary: compassion at the core of forensic ethics. Silva JA: Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. 2003 Stone AA: The ethical boundaries of forensic psychiatry: a view from the ivory tower. Bull Am Acad Psychiatry Law 19:237–248. Leong GG. J Am Acad Psychiatry Law 33:386–389. Bull Am Acad Psychiatry Law 17:189–202. 1991 . Greenberg SA: The expert witness. the adversarial system and the voice of reason: reconciling impartiality and advocacy.
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Although you are usually working for an attorney. make recommendations. or some kind of class action). and compromised working relationship. forensic work should thus always begin with the question. considered for examination of competence to stand trial. the patient is your employer. you should—be polite and supportive to your examinee. for whom am I working? This orienting query about “agency” dictates to whom certain duties lie and how priorities should be set. or perform some other such intervention with him or her. However. you may or may not owe a separate form of allegiance to that attorney’s client. that person is the recipient of your opinions. share a copy of your report with the examinee. treat. that attorney’s client. When you examine a plaintiff at a defense attorney’s request. that is usually clear. you certainly do not owe a duty to other professionals who may be part of your examinee’s treatment team. If you are examining one of a group of plaintiffs or defendants with separate representation (such as a tort case concerning toxins. 23 . regardless of what is going on with other experts or treaters. but you are not required to preview your findings. indirectly. In the forensic relationship. as when a defendant. you may—indeed. Consultative experience suggests that the failure to ask the basic question of agency is the frequent cause of inadequate examination. As noted in Chapter 2 (“The Expert’s Ethical Universe”) in this volume. Your duty is to the person for whom you are working.CHAPTER 3 First Principles IN CLINICAL WORK. That relationship is also a source of certain pitfalls of bias. is being treated in a hospital setting. prescribe. you still work only for your retaining attorney and. discussed in the previous chapter and later in this chapter. your employer is less clear. ineffectual testimony.
How you communicate with your attorney is important from the outset. The Psychiatrist in Court: A Survival Guide. This point came up in an actual cross-examination in a distant state. In this chapter. this approach is self-defeating. for whom am I working. Smith until he or she invites you to call him or her John or Jane. The following discussions include queries about issues that the expert should contemplate before agreeing to consult on the case. refer to those sources. 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. on purpose—he chose to characterize as “mine. 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- . Instead. or Ms. though this distinction may be intentionally obscured as a cross-examination tactic. not your personal counsel. If this issue is in question. I was asked. SECOND EDITION The issue of not serving as expert when you are the treater is relevant but was noted earlier. This telephone call is far from a mere administrative formality. an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. The Retaining Attorney’s Request After the first forensic question. the topic is extensively discussed in the companion volume. It became clear that the cross-examiner meant my retaining attorney. politeness dictates that you call the attorney Mr. some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. informal discussion should be the format. which—either by accident or. Friendly. Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist. clinical experience. and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. more likely. and mastery of professional jargon. Watch for this ploy. because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition.24 THE PSYCHIATRIST AS EXPERT WITNESS. “Have you discussed this with your attorney?” This threw me.” implying venality and bias.
I recommend hearing about the broad issues of the case first and only then asking for people’s names.First Principles 25 chiatrist actually has some knowledge about.g.. The attorney can then take or leave this arrangement. board certification. no matter how unfounded? Do you have a . and so on. experience. and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example. it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e. In general. the attorney will not have revealed confidential information (the names) to you. I don’t know a great deal about this specific subject. which is usually (but not always) clear-cut. 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. as indicated by publication. you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. These issues go beyond mere conflict of interest. what is the psychiatric aspect of this case? A certain percentage of cases will turn out to be ones in which your role is presumed to be that of human lie detector. but subtler versions of personal resonance with a case are not uncommon. but I am willing to become familiar with the issue”). Therefore. take on this case? Do you have some expertise in this general area or in this specific area? If you do not. if you cannot or should not take the case. as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. 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. if your aged mother has just died in a nursing home. 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. For example. have you been the defendant in a malpractice suit. such cases should be reality-tested for the attorney. personally. that is. Your Fitness as an Expert Should you. This example is fairly obvious. Note that your special expertise should exist against a backdrop of your general competence in the field. however baseless? Are you now being investigated by the board of registration for some allegation. “Look. the hospital.
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. This issue is further discussed later in this chapter. Time. “Smith failed to plead . the ultimate beneficiaries. . Do your best to address this possibility early. the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. knows that it was Smith’s lawyer who was derelict. are there cases in which you have testified on behalf of the other side. they are all corrupt). even if the issues are clinically or forensically totally different. and similar problems? You must be extremely candid with the lawyers about such facts at the outset. the more words you might have to eat on cross-examination. you realize that the more you write. the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment.. . Thus..e. Fees. for example. As is often the case.g.26 THE PSYCHIATRIST AS EXPERT WITNESS. a criminal record (no matter how minor). are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. the judge elects to be blind to the legal opportunism paraded before him daily—attorneys have been known to look for an occasional monetary incentive in bringing particular cases forward—and instead focuses on the experts. in an economic sense. (1) This quote is interesting from several viewpoints. . the court record chidingly notes. for instance. including the speaker.In too many medical malpractice cases. attorneys are invisible within the court record. If you write a lot. have taken an opposite position or opinion. or have been retained by one side more than the other? Review this with the attorney. unfortunately. 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. SECOND EDITION history of problems in the military. credentialing problems in the past. the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i. 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. Finally.. in the preceding quote. . juvenile offenses. Belatedly surprising your attorney (e. who are the strangers in the courtroom. Second. Similarly. not for their time and clinical expertise. . contradicts your present position. for the first time while on the witness stand) is a major expert sin. Reviewing your own published work in a particular area is a worthwhile part of your preparation.” when everyone.
this is a pro bono case for you?”). Like the judge previously quoted. Doctor?” The only appropriate answer. whether for psychotherapy or expert witness time. this usually means that the client has hesitation or resistance about my rates. planning. without children bursting in to share their Nintendo triumphs with you). meaning no offense.” Yes. only for my time. Use timers or check your watch at the start and end of a piece of work and write down the time. “So. same as you. and hires me anyway. since the doctor-patient relationship is not pertinent to the examiner-examinee one. allowing me to refer to a junior colleague. probing sexual history without a qualm begin to blush and stammer when it comes to discussing money. and organizing your forensic assessment is part of the work. I also recommend not “nickel and diming. Don’t charge for a 90-second telephone call confirming the date of . analyzing. I know. Therapists who are quite capable of taking an extensive.” or “I am paid by the hour.” or “Nothing” (and wait for the attorney to crack. The attorney either takes me up on this offer. ideally delivered in a calm tone of voice and not through clenched teeth. grits his or her teeth. Several approaches can be used to deal with this conflict beyond simple self-awareness and a thorough personal psychoanalysis. I tactfully suggest that. opposing attorneys enjoy labeling the opposing expert as a hired gun (a problem also discussed in more detail later in this chapter). Extensive experience has indicated to me that if a potential retaining attorney who has received my fee agreement begins to inquire about. or grasps the point. Doctor. choose a fee that you would not be embarrassed to state. 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. Indeed. one of the oldest chestnuts of cross-examining the expert is the familiar “How much are you being paid for your testimony. or challenge the details. attorneys have timers on all their phones and charge by the split second. Note also that time spent thinking. Second. and try to maintain that rate. is “I am not being paid for my testimony. 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. but you are made of finer stuff.” Other witnesses may take this further: “My testimony is not for sale. nit pick.First Principles 27 not the forensic context. But what makes this subject more than usually difficult is the fact that clinicians already have emotional conflicts about the issue of money. First. charge fairly: get a sense of how much time it takes to read forensic material (preferably in a quiet setting. I personally am not convinced that these flourishes add anything to the basic statement above and may sound pompous unless perfectly delivered.
the organization in charge of attorneys’ ethical issues. don’t take on the case. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. or other conflict.e. it is unfair to your attorney. or for reading a one-paragraph letter. basically consultative services. ideally. and give the dates to the attorney. Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate. they referred me to small claims court. for instance. Perry Mason. The attorneys. 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. you are charging for time regardless of the outcome of the case.A. even if there is). If you don’t have enough time. SECOND EDITION a deposition. failure to pay is reality. the good folks on L. How much work or time should you devote to the case? This depends on your schedule. be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp.. defaulted on payment) by their first attorney. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i. in addition. are free to employ contingent fees. when you design your own fee agreement. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”). at the end of this book. I took my first major “stiffer” to court eventually and received some of my money. when asked about your fees on the stand. you can calmly state them without guilt. Bitter experience teaches that it is critically important to have a standard fee agreement or contract signed by the attorney (or insurer) and to operate by retainer or payment in advance. Refuse any other arrangement. of course. but in my experience. shame. Ethically speaking. your fee should never be contingent. You sell only time. To novice experts. Then. 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. Keep your vacations in mind. respectively. You give only testimony. It should.28 THE PSYCHIATRIST AS EXPERT WITNESS. I reported him to the Massachusetts Board of Bar Overseers. Urge your attorney to bring up your fees on direct examination to get it out of the way. but your consultation must be free of investment in any form in the outcome of the case. Owen Marshall. among others. some of which never . That august body opined that this was not an ethical problem but a business issue or a contract issue.
You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. testator. You may provide rebuttal material for use by others. what your skills or knowledge support. rarely. or even witness. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. what your time permits. The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. Will you be expected to testify at trial. at some point. Which comes first boils down to a matter of individual preference. is more accountable. for that matter). As a rule. someone who has to generate a written report. If you are. working for the attorney or insurer is a far better idea than working for the client alone. Moreover. how you feel about the attorney. that is. or will your opinion be used by the attorney to strategize without a report. You might advise the attorney on how to cross-examine the other side’s experts or litigants. You may be needed to evaluate a plaintiff (or a defendant. that role would be ethically incompatible with the objective testifying role. is a tentative trial date known? How do your vacations fit in? This information allows you to allot more time and spread your cases so that you are not testifying on consecutive days for different cases—the expert’s nightmare. 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. how free from bias or conflict the situation is—finally ask. your first task might be an evaluation of plaintiff. defendant. as a professional.First Principles 29 lead to the courtroom. often in orange-crate–sized lots. Do one or the other. The usual next step begins with your receipt of written materials on the case. The Final Decision Putting together everything that you now know—what you charge. or is the matter likely not to go to trial? Are you going to be a reporter. nontreatment role is clearer. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case. going to testify. Among other things. your consultative. . You simply may be a consultant to the attorney on the merits of the case at the outset. your attorney. 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. an individual client. In other cases.
a tendency to assume you will give the “desired” opinion no matter what the material shows. 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). does the attorney have merit? As a rule. Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical. The point is perhaps an obvious one. you must ask the question. a behavior that certainly did not seem all that threatening. or a tendency to want to withhold information. attorneys would call you only for ironclad solid cases in which they have every confidence. Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is. Regrettably. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. In any case. the emotional pressure of the attorney’s desperation should not alter your objectivity. I recommend listening for indexes of venality. in relation to which. compared with some other behavior. of course. the next task is clear. even in a consultative sense? In the initial telephone call. his dangerousness was the crucial issue. stating that the patient’s dangerousness flowed from his being charged with slashing tires. the minority are the ones who pose the problems. SECOND EDITION Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint. For example. for that matter.30 THE PSYCHIATRIST AS EXPERT WITNESS. though you would not necessarily know this. However. The attorney presented the case to me by telephone. There is nothing inherently wrong with this desperation. it may be easier to clear 3 hours for an interview than 6 hours to review a chart. followed by review of the documentation. On perusing . you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked. you may be the ninth expert the attorney has consulted. In reality. I was once retained to perform an independent examination of a patient who was considered for involuntary commitment. because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously. but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. Scheduling considerations may determine the first task. 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. including by obtaining expert consultation. the attorney may be employing you in a desperate attempt to clutch at some faint hope.
you give your conclusions. however. the only safe course is not to work with that attorney. will argue with you at this point. You cannot afford to embark on a course of work with someone such as this particular attorney. (Note also in this example the value of the previous record. 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 first. In the second. which happen to be unfavorable to the retaining attorney’s case. If he or she withholds or distorts information or lies to you initially. faced with this disappointing fact. for instance. my colleague described this patient as probably the most dangerous person he had ever seen in his forensic career. 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. Some attorneys. a document often difficult to unearth but essential to the full evaluation. I told the attorney that she possessed “islands of competence. Somewhat annoyed. based on your review of the database. arguments are the attorney’s attempt to browbeat you into changing your mind. the benign category. Obviously. in a competence assessment of an elderly woman. wants to be certain you took note of a particular record entry or deposition statement.First Principles 31 the old record. A delicate balance must be struck between reasonable flexibility about. Expert witness work is hard enough without bad faith.) The second red-flag situation occurs when. the wording in which your opinion is couched and the substantive alteration of your opinion. after you have given your verbal report. 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). therefore. such pressure should be resisted. I telephoned the attorney and demanded to know why he had withheld this history. I decided those were near-enough equivalents. based on the patient’s history of significant violence. Most ethical attorneys. and the result may be your withdrawal from the case. Another less knowledgeable group of attorneys will be educated by your discussion. the attorney wants to be sure you understand the import of certain data. but I emphasized that he and I needed to be clear about the fact that I would testify . I found an earlier evaluation by a friend and colleague who is nationally known for his expertise in assessing dangerousness. 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. For example. however. and the arguments fall into two categories. the malignant category.” He wondered if that could be equally well expressed by “areas of competence. then you have to expect the same in the future.” After mulling this over.
even if some material is irrelevant and other parts are inadmissible. “withholding” important data from the jury. and I accepted. I accepted this—one can almost always say less—as long as the attorney understood that I would still stand by. and so on. in a high-profile. One attorney nearly drove me mad by releasing dribs and drabs of material. In yet another case. an opposing attorney asked me on the stand when I had received various parts of the database. this rationale is especially ill-founded. under the specious rationale that this method would permit seeing the evolution of my opinion. after discussion I accepted that. and so on.” The attorney moved on to other matters. hung up. Although delighted with this level of detail. He asked me to use the dates of the depositions I had reviewed. inclusion of somewhat negative evidence would show objectivity. I did not recall because I do not keep that kind of record. Then the attorney asked me not to refer to a previous quasi-legal hearing in the case. to “go over” my report. that since I had read it and thought it relevant. Volume II. The case illustrates the variety of negotiations ethically possible and the point at which lines must be drawn. . the remainder of the opinion. his senior partner wanted to deemphasize the subject by changing some wording. I could not ethically omit it. I told him. finally. SECOND EDITION if asked on cross-examination about the relative small size of those areas— island size. in any way. In another case. shape or form whatsoever. The attorney asked for major cuts or deletions. wanted. and did not stop until I said. and testify to if asked. the retaining attorney. I had prepared a 22-page single-spaced report. the attorney had planned to give the report to the jury at one point and feared it would put them to sleep. In a variant on this issue. emphatically: “The timing of my receipt of materials has absolutely nothing to do with any aspect of my opinion or testimony in this case. This is the final opinion I am giving here and now. Agreement was struck. however. This was trivial. tactfully. regardless of what may be precluded by rules of evidence and discovery. It is important to ask for everything from the attorney.32 THE PSYCHIATRIST AS EXPERT WITNESS. and withdrew from the case. rather than Volume I. moreover. in an extended phone call. Since only the final (or courtroom) opinion is determinative. This suggestion was acceptable. He thought a certain paragraph would be more effective if moved (unchanged) to an earlier point in the report. I said I would change nothing. Your request should be global. multimillion-dollar will contest. in fact. only the final opinion really matters. The attorney made a big show of my “concealing” this information. The attorney said he was offended that I should even think he was suggesting omitting something. The negotiating discussion moved into argument.
” 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. 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. I think this guy is probably not insane. As you go through the documents. long pages of deposition testimony drone on about the exhibit. 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. “Look. My own approach is as follows. after your report. This problem is a variant of a countertransference issue. because I’ve got nothing. check the documents you receive against the cover letter to be sure you have everything you should. and connections that can be checked against the primary record data and flag those in some way. First. I find it helpful first to read the complaint so that you know what the basic issues are. each element of which may be confirmed or disconfirmed by other material in the database. but you can only imagine it because the actual document has not been provided. . if you will. Forensic countertransference is further discussed in reference 2. directed not toward the patient or examinee but toward the attorney. feel free to use it if it suits your own preferences. but I’d like you to do this evaluation on him anyway. you should consider some important points. for example. Recall that a plaintiff can claim anything at first. In general. you are creating a checklist. However. I have found that attorneys for some reason often fail to send the exhibits to depositions. facts.First Principles 33 The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database. Second. 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. it is up to you. He was photographed doing the crime. look critically for claims. develop a list of documents that need to be supplied and devise a way to check these off once you have received them. As you read the complaint. This ethical dilemma arises when the attorney says. Reviewing Cases Critically When the attorney sends you a crate of records and you review them. a situation sometimes occurs that requires special mention. even data of dubious validity. Referral to another or an additional expert also may be indicated. Either undertaking or turning down such a case is a defensible position.
accept it as a limitation. you may also request that the attorney’s office create the timeline. the defendant. I read the medical records and clinical material or the equivalent. insanity in a criminal context). and be prepared to acknowledge this constraint as a limitation on the data. advance screening. the depositions or witness reports. including your own. your interview queries would thus arise directly out of the material. Given the complexity of many psychiatric malpractice cases. makes it harder to focus on hot spots of the case or areas of contradiction in the database. This permits. third. 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). The Interview After reading the materials. A laptop computer for this task may be quite helpful.34 THE PSYCHIATRIST AS EXPERT WITNESS. or with only the complaint reviewed. perhaps by a paralegal. exert every effort through your attorney to obtain enough time to do an adequate examination. you are familiar with basic interview approaches).g. no matter how difficult the scheduling might be. The attorneys on either side of the case may limit the interview time available. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will. 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 logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e. If the appropriate amount of time for your examination cannot be obtained. for example. the witness. . you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period. the testator. however. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. or whoever is involved in the case (presumably. I strongly recommend reading large chunks of material at a single sitting. and selection of a safe environment may be required for examining potentially dangerous examinees. you also may want to review relevant literature on the subject. Such an examinee-first approach. SECOND EDITION Second. Note for completeness that some experts like to start by examining the litigant first. matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. then to check the record to determine whether the complaint or issue has any validity. if you have not already done so. you will want to interview the plaintiff.. At this point. cold. Some discretion.
to have the interview audiotaped or videotaped. exaggerating symptoms. in one case.” was appropriately disconcerting. presumably. Experts whose handwriting is truly hieroglyphic report some success with taking notes on laptops.” My immediate response. This decision is legitimate but bears consequences. be spared this burden. then to examine him or her again to clear up matters raised by the written material. Examinees commonly play up to the audience or recording device. 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. the expert will receive a request to have an attorney or paralegal present during the interview or. unobtrusive note taking probably represents the optimum compromise among choices. or consciously attempting not to contradict what they told the attorney earlier rather than evincing spontaneous (and thus. attempt to put recording devices out of direct sight (although you should obtain on the tapes them- . however.First Principles 35 If the witness lives locally. cuing. it is certainly beneficial for teaching and for self-review for quality assurance. alternatively. more authentic) responses to your inquiries. that side’s attorney may refuse to allow you to do so. Inappropriate interruptions and objections. If you are unable to prevent the above intrusions. 3. then to read the database. the plaintiff ’s attorney on cross-examination asked whether it was not true that my opinion was reached without “the benefit of my examining the plaintiff. as a rule. an audiotape or videotape of an interview may be constructive. but I strongly recommend opposing their occurrence through your attorney. focusing on making a recording. Examinees who must travel to see you should. Not uncommonly. Note that when you are retained by the defense and wish to examine the plaintiff. 2. although this irritates some examinees more than writing during the interview. the absence of this datum must be factored into the opinion. it might be effective and appropriate to examine him or her first. based on the belief that such an examination can only hurt the case. and suggestions from the attorney present may contaminate the process. when examining for the opposite side of a case. “You wouldn’t let me!. Verbatim material also can be obtained in this way. For example. These procedures distract you from being able to give full empathic attention and close observation to the examinee and. Jurisdictional rules may make one or all of these procedures mandatory. The fundamental reasons are as follows: 1. However. For a number of circumstances. inhibit free-ranging inquiry. for some experts.
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. 1997) at the University of Michigan Law School reports that some attorneys consider it part of attorneyclient privilege to instruct the client to deny that the coaching ever took place. distortion. “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. and so on? .. Plausibility The first question to ask of the case. (4.. behind the examinee). as when the complaint boils down to. and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting. SECOND EDITION selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e. 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 psychiatrist interviewed plaintiffs with an attorney present. The following are four of the principles that I apply as a generic framework for this purpose. “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me. Mobil. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. is whether the case is fundamentally plausible. but the following vignettes make the point clearly: For example. warn once.g. a second offense should lead you to terminate the interview and report this interference to your retaining attorney. p. be it civil or criminal. . This subject is addressed extensively elsewhere (3).36 THE PSYCHIATRIST AS EXPERT WITNESS. If the attorney attempts in any way to cue or coach the examinee. a mass tort in Louisiana.Attorney Larry Cohen (personal communication. 322) To offer a structure for this stage of the inquiry... the format that I devised for assessing true or false allegations of sexual misconduct may be helpful here.An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie. March... Do the deviations from standard of care sound hokey. in the unpublished 1996 case of Lailhengue v. and I want to sue him.
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. in a sexual misconduct claim later proven groundless. about the historic English crime.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. remember not to offer any treatment or treatment recommendations to your examinee. She had apparently established these referents by calling the office and receiving no answer. as well as disability evaluations and similar tasks. MGM/UA. plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls. If the situation did not occur in the manner claimed. The notion of the alternative scenario can be essential for assessing civil claims. the outcome. This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. she assumed the doctor was not present and could not refute her claim. Finally. or the alleged damages? For example. however. The phone records aided in challenging the claim by providing a time stamp. the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive. he had made several outgoing calls during the time period of the alleged molestation. 1978). how might it have occurred alternatively? Is there another way of explaining what happened. all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. Alternative Scenario In the film The Great Train Robbery (Crichton M. whereas the arresting officers and other disinterested witnesses describe a calm and rational person just after the crime? Do other parts of the total database present corroboration or discorroboration of the claims. the following dialogue occurs between the trial judge and Edward Pierce. observations. such as sexual misconduct. or for some criminal claims of insanity. 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. even if asked to do so or tempted by medical ne- .
Is the patient convincing and plausible? Do the words match the music. I have been retained by (your side. Second. And finally.38 THE PSYCHIATRIST AS EXPERT WITNESS. the other side of the case. Fitting Together the Interview Commonly. and treatment offers are inappropriate. compare the consent form in Appendix 1. and if you do not. or in an open courtroom. in a deposition. but since I can only be useful if I am objective. 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. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. you are attending to his or her demeanor and its relation to credibility. Her emotions were strong and appropriate to the content. Third. in both civil and criminal cases. unlike what you may be familiar with from other doctors or therapists. you can ask for a break (water. there are some things I need to inform you about. the court). Other warnings. recall that anyone can really be fooled. my testimony may help your case. as noted early in this text. seem to be called for out of fundamental fairness to your examinee. and others) as part of your exhaustive review of the database. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello. that is. what we talk about here is not confidential because I am not your treater. As you are interviewing the examinee. hurt your case. move on to the substance of your interview. such as informing the examinee which side has retained you. although I hope you will do so. if not. she had plausible answers for all my questions. please sit down” but before anything substantive has been said: Before we start. Note the fully intentional structural resemblance of the above paragraph to informed consent. you do not have to answer any of my questions. possibly with reporters present. I am entitled to make note of that. First. Only when I subsequently read her deposition did her entire . First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality. defendant. restroom) at any time. you will interview the subject (plaintiff. what you say may come out in a report. or have no visible effect on your case—only time will tell. Do you have any questions about what I have told you so far? If the person has questions. You will be challenged to weave interview data into the totality of the case. and you must keep several issues in mind. SECOND EDITION cessity as treatment issues emerge in the interview. The relationship is not a medical one. answer them as best you can.
but then Dr. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned. Smith did X at this point.” In the civil system. An insanity claim may be far more plausible when the patient has a long history of bona fide mental illness. An intermediate dilemma is that in which the defendant’s alleged actions exacerbated (but did not originally cause) the preexisting harm. The evaluating expert must resolve a delicate tension in determinations regarding previous or preexisting conditions. on the other hand. Besides serving as a valuable lesson in humility. 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 . 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.First Principles 39 case fall apart. believe deeply in their position. The plaintiff ’s failure to take those remedial steps does count against him or her. a defendant may be mentally ill.. it only means that you’re being conned into thinking that you’re not being conned. the case was highly instructive: interviewees can be extremely convincing. particular plaintiff vulnerability for which the defendant must be held responsible. but did that illness meet the statutory criteria for insanity? The treater may have deviated from the standard of care. but did that deviation cause the damages. A claim for injury by an event in the recent past is more convincing when no preexisting emotional disorders are involved.e. Jones did Y and the plaintiff did Z. because the defendant is not causally responsible for what happened earlier. plaintiffs are supposed to take steps to mitigate (ameliorate or diminish) their harms. Such distinctions are extremely significant in the hard monetary realities of the legal case. For example. the preexisting condition must be deducted from the damages. the presence of a mental illness per se or the presence of emotional injuries is not particularly in doubt. but those efforts may fail or be misdirected and may even make things worse. What is more uncertain is the link—causation or connection—between those clinical details and the forensic issue. especially when they themselves. This issue is further discussed in Chapter 4 (“Types of Typical Cases”) in this volume. but recall that anyone may have a “first psychotic break” with symptoms that meet insanity criteria. This is the question of whether previous symptomatology constitutes the plaintiff’s “thin skull” (i. or were other factors involved? Examine previous or preexisting illness or injury to obtain valuable background. Similarly problematic is the matter of intervening causes: “Dr. The Causation or Connection Dilemma In many forensic cases.
work by Pittman and Orr (5) on differentiating serial trauma shows promise. mistrial claims. or 2) return the materials to the retaining agency. 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. 2. all case materials except your reports. 2002 Gutheil TG: Reflections on coaching by attorneys. 2003 3. appeals. 63 Ohio Misc 2d 533 at 534. DC. Kirby v Ahmad. consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. although it has not yet gained broad enough acceptance to be generally admissible as evidence. Or. and what the exacerbations were of preexisting conditions. Even if a case seems “over. American Psychiatric Publishing. then is sexually abused by a treater. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. two major approaches apply: 1) shred or have a reputable company shred the paperwork. In addition. because they would be hard to replace. Washington. keep the latter indefinitely. event. if any. Another good rule is to discard. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. and then has other symptoms or more of the same symptoms. . they may serve you to recall the case at a later point for research or publication purposes. SECOND EDITION were of a particular deviation. what the results were of subsequent events. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms. J Am Acad Psychiatry Law 31:6–9. References 1.40 THE PSYCHIATRIST AS EXPERT WITNESS. What portion (usually. and so forth that require revisiting the materials. with permission.” there may be subsequent posttrial motions. Further research may reveal other promising approaches (6). 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. or incident. 1994 Gutheil TG. and your interview notes. If you are discarding case materials.
Hamm RM. 3rd Edition. 2005 . Brunner/Mazel. et al: Medical Choices. 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. Baltimore. 1997 Resnick PJ: Malingering of posttraumatic stress disorder. MD. 1990 Suggested Readings Appelbaum PS. 4th Edition. Guilford Press. Lippincott. Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. J Psychiatry Law 21:33–76. Guilford Press. Families and Physicians Can Cope With Uncertainty. 3rd Edition. New York. New York. Medical Chances: How Patients. Zasler ND. Gutheil TG: Clinical Handbook of Psychiatry and the Law. New York. 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. J Psychiatry Law 24:3–25. 1997 Pittman RK. 2008. 1993 Bursztajn HJ. Bull Am Acad Psychiatry Law 21:37–52. Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. J Am Acad Psychiatry Law 31:232–238. Otto R. pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception. Williams CW. et al: Response bias in plaintiffs’ histories. Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. 2003 Group for the Advancement of Psychiatry. Edited by Rogers R. Feinbloom RI. 1993 Deaton JSD: Toward a critical forensic psychiatry. 1991 Lees-Haley PR. 41 6. Williams & Wilkins.First Principles 4. 2007 Borum R. Chapman. Brain Injury 11:791–799. & Hall. Routledge. 5. New York. Assessment 4:321–324. in Clinical Assessment of Malingering and Deception. J Am Acad Psychiatry Law 33:158–175.
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The discussions within this chapter should be considered an introductory survey. every potential signal of suicidal intent becomes charged with inappropriate significance because the outcome is known. for example (the most common claim against mental health professionals). and 4) proximate cause. this bias means that the outcome of an event appears as though it had been far more foreseeable. 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. 3) injury to the patient. 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. in this chapter. More practically. Generally. than was actually so before the event in question occurred. you already know the person is dead. 2) breach of duty.CHAPTER 4 Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters. once you know it has already happened. the hindsight bias refers to the fact that everybody’s retrospective view is 20/20. But the jury must face an even more challenging task in hearing the case long after the events occurred: the hindsight bias. Sometimes forgotten is the fore43 . In a suicide malpractice case.
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
sight perspective, namely, that literally thousands of patients (or persons) express suicidal ideas or hints without acting on them and that the suicide base rate is low. Like juries, you—even as an expert—can be vulnerable to the same hindsight-driven distortion of reasoning unless you actively work on countering this potential bias; this is usually accomplished by attempting empathically and effortfully to place yourself in the mindset of the decision makers at past points in time when critical interventions did or did not occur. It takes active work and a creative imagination to get yourself into the prospective view of the foresight-driven treater, whose behavior must be measured against the standard of care as if the outcome were still in doubt (which, at an earlier time, it usually was). The task for the defense expert, as well as the ethical position for the plaintiff ’s expert, requires explaining to the jury exactly that retrospective yet foresight-oriented view (1–3). A concept closely related to the avoidance of hindsight bias is that of respect for the primacy of the on-site observer. In psychiatric malpractice cases, it is most fair to the defendant (whichever side you represent) to weight heavily the fact that the defendant-physician, not yourself, was on the scene at the relevant time and under the applicable circumstances. This uniqueness of locale has a number of implications, all of which militate in favor of the on-site observer being given the benefit of the doubt in most observations and decisions, absent gross deviations from the standards of care. One basis for this perspective is the matter of subjective data (4, 5). In addition to what is recorded in the chart, the direct observer who talked to this patient before he or she committed suicide had access to far more information than usually makes it onto the chart page: tone of voice, body language, facial expression, observer signs (the psychophysiological responses the patient evokes in the examiner), and similar subjective but often decisive elements of the decision-making process in regard to this patient. You as the expert, in contrast, have only the secondary materials (such as charts and depositions). Note that attorneys’ queries in depositions about the aforementioned subjective observations are practically unheard of. Although there is some variation annually, the leading issues in malpractice claims against psychiatrists over the years have been the following: suicide, sexual misconduct and boundary issues, third-party claims (i.e., Tarasoff-type cases involving the clinicians’ duty to protect victims from their patients’ acts), confidentiality breaches, medication issues, and “false memory” cases in various forms. Many of these are subsumed within other categories such as misdiagnosis, mistreatment, wrongful death, and the like. With the foregoing in mind, we can appreciate that it is a mark of the novice (or, alas, the venal) expert to say, “I have read the record, and I know the patient was depressed,” despite the fact that the on-site observer records a careful mental status examination without reference to depression. Of
Types of Typical Cases
course, it is quite a different matter if the on-site treater’s conclusions are internally inconsistent with his or her own contemporaneous observations or are egregious distortions of the diagnostic or therapeutic process. But absent such extremes, great primacy should be awarded to subjective, nondocumented material that is observed and enters into the decision making by the on-site personnel at the relevant time. It is therefore important to suspend your judgment while reading a case until the whole has been reviewed. Each side can be surprisingly convincing when assessed in a vacuum (such as the complaint or interview alone) so that premature closure of your opinion is a great hazard of the trade. Resist this temptation, and flag those claims that need to be checked against other parts of the database.
The Standard of Care
The question of the standard of care is a complex but central issue in malpractice; it is the benchmark against which deviation (i.e., negligence) is measured. Unfortunately, the official standard of care or the wording in which it is couched may vary between jurisdictions. As an expert, you must, of course, familiarize yourself with the relevant local standard and its wording early in your work on the case and apply it to your review of the database. Massachusetts case law, for example, has a rather elaborate definition; the standard of care is that of “the average reasonable practitioner at that time and under the circumstances and taking into account the advances in the field.” By inference, this is a national standard, because advances in the field are professionwide, not regional. Other jurisdictions may have what is called a locality rule, which is a standard drawn from the practice of clinicians in that locality. For example, part of my qualification process in testifying in Durham, North Carolina, which has the locality rule, was to demonstrate the various ways in which I was aware of what clinicians do in Durham. In light of some recent American Psychiatric Association (APA) publications articulating diagnostic and treatment guidelines, how are these guidelines to be construed in relation to standards of care? The average guideline is not itself a standard; rather than describing average actual practice, the guideline often identifies what care ideally should be, that is, best practices. For example, if you write a textbook of psychiatry and law that proposes certain recommendations, those are not the standards of care. Those recommendations are called precatory or preaching; that is, they preach what the best care should be, rather than the required average reasonable care. Those recommendations do not pretend to be the standard of the average reasonable practitioner. All of these citations may be legally considered “evi-
THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
dence of the standard,” which the judge or jury may consider together with other evidence. In practice, you will be trying to find your way among these alternative models—none of which is the standard of care. Be prepared to answer the critical question, “Doctor, how do you know what is the standard of care?” and be prepared to be challenged on this point. Some common sources for obtaining this knowledge include conversations with colleagues, national professional meetings such as the APA annual meeting, national professional journals, and even previous forensic cases that have been tried in the same state or region or those that have involved comparable clinical issues. Some subtleties remain. The expert may practice in an academic center at the cutting edge of research and practice, causing a potential biasing factor. Is the standard of care different for a resident and a senior practitioner? Probably. Is it different for a major urban academic teaching hospital and a small rural nonteaching one? Probably. How, then, can a fair and responsible accommodation to this difference be made? How do you assess it? Whatever your answer, do it fairly and be prepared to defend the rationale.
Further Notes on Reading the Records in Malpractice Cases
Records are frequently the core of the case. It is important not only for malpractice defense but also for rendering clinical care that the records are readable, logical, clinical, and internally consistent. The expert should, of course, screen for these qualities in reviewing them. A model for record-keeping that some scholars use is illustrated by the acronym CATO: clear, accurate, timely, and objective; this stands for the criteria for the adequate record. From the expert’s viewpoint the record must be legible to permit valid conclusions to be drawn from it. If extended portions are not legible, the expert should not be drawn into guessing what it says: through your retaining attorney request a dictated transcript, or urge that the chart be read into the record in deposition. Accuracy is often difficult to determine after the fact, but looking for consistency among the parts of the record is usually helpful to determine that factor. Timeliness is affected by the delay between an event and its reportage in the chart: late notes are less reliable than contemporary ones. Finally, objectivity in the record permits a more useful assessment: indicia of hostility to a patient or minimization of symptomatology may suggest some countertransference issues that may cloud clinical judgment. However, the forensic level of scrutiny requires deeper probing. For example, is there symmetry between the clinician’s notes and his or her orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
the expert may draw conclusions from the record alone. as a separate document. any forensic document) without making some sort of notation of what is significant. 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. On some occasions. nor are the queries necessarily posed the way you would do so. you may have to pose your own questions to the parties. An important principle in reading records cannot be reemphasized too often: Never read a record (or for that matter. I find it valuable to look at the social service history. a marginal scribble. defendants. if present. and so on? Are the appropriate countersignatures present if needed? Such comparative reading often distinguishes expert review in malpractice from utilization or peer review.” However. 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. or it can be a highlighted entry. for example. of any queries or signs of missing data that the record generates to be checked later or elsewhere. even in the face of other testimony by treaters or similar persons that extends or contradicts what is written. To save yourself reading everything from scratch each time. Next. the next time you read this document for deposition or trial may be 7 years away. plaintiffs. opposing experts. When reading the deposition. It is not uncommon for some discrepancy to exist between the written record and later testimony—a discrepancy that the expert should weigh.Types of Typical Cases 47 the tests ordered. of what this record entry contradicts or supports in the deposition. This notation can be on a separate sheet of paper of similar notes. There is something of a translation burden on you to read between the lines to determine the issues. “This is so clear and memorable that I will naturally recall it later. these may not necessarily be the questions you would want to ask. after the records. . as well as reasonable rationales or arguments that can be presented and explained at a greater length than possible in most patient charts. a post-it. or a folded corner of the page. make some sort of notation each time you read through the record. you may be tempted to say to yourself. In the process of reading. or whatever. of course). The point may seem obvious. through your retaining lawyer’s permission and intercession. you read the depositions of witnesses. an underline. and others. but depositions consist of attorneys’ questions to various parties. of your thoughts and reactions. Because keeping a medical record is itself part of the standard of care. you are seeking consistency and credibility. 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. as different things may strike you on subsequent review.
exert the effort to stand back from the process. namely. In those jurisdictions where the issue exists. For example.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. “I think you should talk to the retaining attorney. you can be drawn into the prose by the unfolding drama therein recorded. Doctor. Is this defendant someone who seemed to show . Criminal Responsibility Cases In cases of criminal responsibility. and so on. SECOND EDITION Although the more information gathered. what do you think about this amazing case. or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. litigant. The truly challenging case lies between these extremes. you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria. These unethical conversations usually have an informal tone: “So. remember to consider diminished capacity as an intermediate condition.48 THE PSYCHIATRIST AS EXPERT WITNESS. but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. To read critically. it is inappropriate to call or write directly to the opposing attorney. or expert. 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. On occasion. credible mental illness (and therefore a likely defense) versus a case with none of these qualities. statements of the arresting officers. are the most significant. friendly approach into letting your guard down and discoursing freely on your opinions. data gathered at the time of the alleged act. eh?” Presumably. in my (and almost everyone’s) view. especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. Out of the entire panoply of available material on a criminal responsibility case. weighing the logic of the deponent’s responses. you are lulled by this informal. the more helpful it would be in forming your opinion. Because of the flow of material and its often fascinating content. Of second-rank importance. is historical material. but still relevant. These would include witness and victim reports. The appropriate response is. while reading a deposition. a case wherein the defendant had or has a major. I have had opposing attorneys telephone me directly on a “fishing expedition” to see what they could get me to disclose about a case without the trouble and expense of scheduling a deposition. your attorney’s confidential trial strategy. you may confront the classical poles of the issue. and records of any treating clinicians from points close in time to the alleged acts.
the result of the crime. although mandatory and irreplaceable. 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. Because of the seriousness of criminal penalties. All the interview data must be fitted to the totality of the database. Finally. or did he or she have a long history of mental illness with recurring hospitalizations and delusional symptoms that relate directly to the alleged act? Recall that mental illness may bear a wide variety of relationships to crime: a factor in responsibility. a surprising number of individuals avoid treatment. the interview in a criminal responsibility case has the least power of all the data collected. largely because its after-the-fact timing and the inevitable self-serving elements of the defendant’s position cloud the objectivity of the examination. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages. and so on. Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law. the cause of the crime. a plaintiff drank from a chemically contaminated bottle and burned his mouth. The most valuable dimension of the interview is obtaining previously unrecorded history and the defendant’s own self-reported rationale for his or her actions and own description of the internal mental state at the time of the act.Types of Typical Cases 49 for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery. This issue of proportion is a common pitfall for the novice plaintiff ’s expert. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case. for example. an injury from which he recovered rapidly without lasting effect. I find the interview for an emotional injury case to be of primary value.8). malingering is especially common and problematic in this assessment. some on . In one case. as with all forensic evaluations (6). The interview also gives you a chance to assess what might be called a sense of proportion. an unrelated accompaniment to the crime. The novice expert should become familiar with useful publications on the subject (7.
. 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. I . may be relevant. avoidance. The shopper then may sue the store for harassment and consequent emotional harms. These brief commentaries on some familiar types of cases are intended to fill in areas of the evaluation that standard texts may not address. but they may also be relevant to assessing damages or preexisting conditions. Focus on emotional damages from a particular event or situation should not blind you to exploration of personality or character issues. The interview took place in his basement recreation room. the expert is obliged to attempt to factor out those stresses and resultant symptoms of the litigation process itself—a challenging but necessary task. The Startle Response That Wasn’t A plaintiff had experienced a documented mugging and was suing a company for inadequate security. He claimed to have full-fledged PTSD.50 THE PSYCHIATRIST AS EXPERT WITNESS. especially idiosyncratic history. preexisting vulnerability. Not only might these provide a context for the injuries claimed. I had to interview him in his home because he claimed to be phobically homebound. History. 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. too. as a result of the mugging. however. with intrusive flashback memories. The response “My attorney told me not to” conveys its own obvious message. SECOND EDITION their own accord and some when given this advice by their attorneys. This history may represent the plaintiff ’s “thin skull” (i. in regard to which the defendants must “take the plaintiffs as they find them”). Some examples of personal injury cases in which I have been involved may provide instructive insights into the evaluation process. there was a slatted wall or room divider that evidently concealed his home’s heating apparatus. and startle responses. In this situation.e. 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. For example. you again often encounter the previously described problem of factoring out the effects of serial trauma. “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. Finally. Such a search can be embarrassing and humiliating to anyone. A question you should ask your interviewee is. 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. only to find that the goods are legitimately accompanied by a receipt. Next to the small table where we were sitting.
it seemed to me that this incident would induce PTSD in a stone statue. on careful inquiry. fellow passengers. however. High-Profile Cases At one point or another. but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair. it turned out. stoic fisherman. He gave the impression on interview that if you fired off a . 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. injury. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels.357 Magnum close to his ear. the former passenger was revealed as a serious. which the average member of the public really doesn’t understand. but at incredibly high levels. dying. This passenger. you may be asked to review a case that has been extensively covered in the media before you have been retained. who. 51 This observation was potentially valuable and worth recording. As the “moving . This case also illustrates the maxim. the jury ultimately decides. had no signs of trauma whatsoever. Boston Harbor with freezing. perhaps so. the nose of the plane fell into the harbor. not totally probative. he would have said calmly. The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. to get the actual data. don’t assume—examine. the plaintiff or prosecutor can say anything. There is a fundamental asymmetry about media coverage in almost every case. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport. One of my cases raised this issue. therefore. In a famous incident. “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. yet the observation is valid. the alleged malpractice. looking straight down past his toes. ate like a lumberjack. It is. or crime has generated publicity first. he saw a jagged metal edge and below that edge. unimaginative. He was strapped into his seat. Initially. then you get the case. He slept like a log. and did not dream. On detailed examination. I myself jumped in my chair. usually not. of course. because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on. the case certainly seemed meritorious in theory. and.Types of Typical Cases knew this because. had been in the front row of seats just behind the break in the plane. On the surface of his story. the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. An apartment dweller sued her landlord for failing to respond to the infestation. without warning. that is.
until it is proven in a court of law. Even though you may try to tune out the media.52 THE PSYCHIATRIST AS EXPERT WITNESS. A plaintiff can say to the media. pushing the case for all it is worth. Some attorneys may try. however. you have to be alert to this potential biasing factor and be aware of the media asymmetries. By doing this. you simply may be reading your newspaper before you are asked to consult on a case. “Developing and Marketing a Forensic Practice. plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. and spill hot coffee over their thighs and sue McDonald’s.” In another case. consciously or unconsciously. SECOND EDITION parties. (Chapter 9. the plaintiff and prosecutor inevitably bias the public’s perception. In short. 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 defense attorneys must say “no comment” each time.” the attorneys have to create the case from scratch. to influence the public powerfully in advance. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly. of course. Ninety-nine percent of the time. Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions. because they don’t want to give away trial strategy. but this principle may be readily overlooked in a media frenzy.” in this volume provides more reliable methods of publicizing your practice. for example. Therefore. selling testimony instead of time. “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. 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. 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). the defense attorneys cannot answer the media’s questions. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media. rip off the covers in moving cars. the standard references the average reasonable .) Another stigma of the hired gun is the counsel of perfection. for example. there is no case until it is brought. as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. but so do a number—perhaps a greater number—of venal witnesses. In malpractice cases. lest your review should begin with a one-sided perspective. in hopes that some of that public will later become jurors. None of this trumpeting means anything.
Indeed. The real issue is: does the standard of care require more..” Many “good ideas” theoretically might have contributed to the patient’s care. in the real world.” This testimony is a classic hired gun claim. whereby the hired gun whips a standard out of thin air to justify his or her position in the case.Types of Typical Cases 53 practitioner—not the stars of the profession or those at the bottom of the barrel but those occupying the middle of the Gaussian curve. and you have to respond and give the patient what he needs or otherwise you’ll have a really bad situation. An even more malignant twist is the made-up or artificial standard. For example. 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. prolix responses that bury the actual response in a pile of indeterminate or inconclusive verbiage. Novice experts must avoid this possible pitfall by remaining alert to an overidentification with the treating physicians. I personally have never heard of or read that standard anywhere. Some experts believe that physicians are never wrong and always justify whatever the physicians do. . it’s a very serious situation. the counter to such claims often begins with the phrase “Well. but no one lives real life like that. but malpractice litigation hinges on what is required by the standard of care. Another phenomenon you might see in the deposition that captures the notion of the hired gun is the “major waffle” (11).. Such statements may even mask the fact that the hired gun does not know what the standard of care actually is. “They (the defendants) should have done more. “If the care had been adequate. Waffles are evasive. the likely explanation is that the treaterexpert made it up to suit his views of this case.” Note that what any particular expert does is irrelevant to determining the standard of care of the average reasonable practitioner. Yet another variant on this last theme is the situation in which the hired gun advances his or her own idiosyncratic standard as the standard of care: “I always do X on every examinee I’ve ever seen. but “This suicide proves inherently that the care was inadequate” is a hindsight-driven standard of perfection. this suicide would not have occurred” is a proper statement of an opinion about the relationship of causation to the standard of care. Anyone always could have done more. The hired gun often advances a perfectionistic standard as though it were the average. 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. Another variation on this theme is.
of unpredictability. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. that this is a patient with some history of a. then committed suicide. specifically. but that is the answer to a different question. rather than ideally. 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]. and where I believe the standard of care was breached was that the patient. reasonably would have been.54 THE PSYCHIATRIST AS EXPERT WITNESS. took some blood pressure pills one time in [city]. he gets frightened. there is a lot of despair and a great deal of thought disorganization in the patient. but. we don’t know whether he stops or doesn’t stop and get [drug] or not. 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 this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left. parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. . More to the point. I am not in a position to tell you that that would be the only choice. he should have been [that is. Is that a yes or a no? In fact it is neither—it is a waffle. a reasonable history. In the following example. it seems nearly impossible to extract the actual opinion from the thicket of prose. an emergency petition ideally would have been. The entire answer took four full deposition pages. Also note that the failure to consider a valid option indeed may constitute negligence. Getting the feel for how the waffle works takes a certain amount of reading of case material. an hour before that or less signs a 3-day statement and then just disappears. the mental state and what’s gone on in that patient’s mind is very uncertain. goes all the way to [another city]. Note that this entire chunk of testimony is one run-on sentence. 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. he has taken in despair 10 lithiums some years back. and that is frequently the hallmark of the hired gun. a patient had escaped from the hospital. 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. “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. That was the answer in toto. It certainly should have been considered. Note how that witness actually avoids responding. actually.
Edited by Simon RI. in Retrospective Assessment of Mental States in Litigation: Predicting the Past. I: malpractice prevention and the use of subjective data. but that doesn’t mean that it’s without supervision. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. and that includes they would be safe within or without the community. 1981 Gutheil TG. we must consider another possibility regarding the above examples. Science 211:453–458. Conceivably. 2. American Psychiatric Press. Gutheil TG. Int J Law Psychiatry 6:317–329. 6. Bursztajn H. foresight: the effect of outcome knowledge on judgment under uncertainty. . a trend of such waffling answers in deposition does set off my hired gun detector. we may be dealing with an incompetence issue. which makes sure the patient is safe within a structured environment. Brodsky A: Subjective data and suicide assessment in the light of recent legal developments. pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception. Kahneman D: The framing of decisions and the psychology of choice. 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination. J Exp Psychol 1:288–299. whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. Guilford Press. 3. DC. 2008 5. New York. 4. MD. I would prefer never to assume malice when incompetence would serve as an alternative scenario. 3rd Edition. with impunity. note that one cannot. 1983 Bursztajn H. refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney. 7. Finally. because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based. for better or for worse. II: clinical uses of legal standards in the interpretation of subjective data. Brodsky A. Yet.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. Williams & Wilkins. 1975 Tversky A. Shuman DW. References 1. Washington. 2002. Gutheil TG. Int J Law Psychiatry 6:331–350. Baltimore. In fairness. et al: Decision-Making in Psychiatry and Law. 1991 Fischhoff B: Hindsight.
Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. 1993 . insanity. THE PSYCHIATRIST AS EXPERT WITNESS. 1987 11. Washington. American Psychiatric Press. Psychiatric Services 50:767–773. Law and Human Behavior 19:493– 505. 2nd Edition. 2000 10. DC. 2007 Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists.” J Am Acad Psychiatry Law 35:112–117. J Am Acad Psychiatry Law 34:215–223. 1992 Gutheil TG: A confusion of tongues: competence. psychiatry and the law. 1995 9. 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. Psychiatry 1:26–28. 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Legal Studies Forum 9:41–53. 2004 Knoll J. SECOND EDITION Gothard S. Bull Am Acad Psychiatry Law 20:409–418. 2005 Simon RI. Psychiatr Clin North Am 17:439–446. 1999 Gutheil TG: Fundamentals of medical record documentation. Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. et al: Detection of malingering in competency to stand trial evaluations. 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Washington. J Psychiatry Law 28:5–18. Bull Am Acad Psychiatry Law 21:23–36.56 8. American Psychiatric Press. Meloy JR. Viglion DJ. Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Gutheil TG: The problem of evasive testimony: the expert “waffle. DC. 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation.
Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. In both cases. Attorneys probe and define the limits of their cases. whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. 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. From the viewpoint of the expert. use of interrogatories to inform the other side of the names of the expert witnesses is replaced or supplemented by a letter or report called an expert disclosure. Note that some jurisdictions practice “trial by ambush” without expert discovery. there is the period known as discovery. Under some circumstances.CHAPTER 5 Discovery and Depositions DURING THE EXTENSIVE period between when a suit is filed or a suspect of a crime is arrested and the actual trial. the attorney will likely write the actual prose of the 57 . preparing for what to expect from the various witnesses and documents. the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions. if any.
without retaining you at all. read every such document before it is turned in. However. review Chapter 5 in the companion volume to this book. If you have never given a deposition or you feel a bit shaky about the procedure. If you discover this to have occurred. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed. it is always unethical. SECOND EDITION answers for you. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2).58 THE PSYCHIATRIST AS EXPERT WITNESS. even worse. hyperbole hurts you. obtaining admissions. reasoning that they can always modify their opinions at trial when the right questions are asked. Opposing attorneys usually follow one of three agendas. For example. attorneys sometimes ask you for your tax returns of the last 5 years. 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. your attorney will advise you as to what requests for information or documents will be objected to or refused. It is critical that everything in your interrogatory be something that you have already decided you are able to support. This approach saves you from having to retract misstatements on cross-examination. that is an attorney’s function. . to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). and painting you into a corner. based on his or her interpretation of the rules of evidence. the expert. In addition. The obvious prophylaxis and remedy is to attend carefully not only to the content of what your lawyer puts down as your expected testimony but also to the specific choice of words being used. guided by your input as to what you expect to testify to at trial. you do not want to be associated with this attorney. or some combination of the three: getting your opinion. Do not attempt to decide what is or is not objectionable yourself. On occasion. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data. Depositions The second major area of discovery is the deposition. either from clinical evidence or experience or from facts in the database. 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 interrogatory is sworn testimony. I advise you to withdraw from (or refuse to take) the case.
and so on. or a full-fledged repeat deposition. a witness’s deposition or medical record that you had not seen before your own deposition. over and above what has been conveyed in reports or interrogatories. This discovery function is a completely legitimate task and one with which you should cooperate fully. The attorney can then prepare cross-examination. Attorneys also stress that the deposition is their one chance to find out what you have to say. the police. Some cunning attorneys attempt to exploit this point by avoiding asking you relevant opinion questions at all. but this is a subintention within the larger discovery framework. and deadlines may dictate this suboptimal condition. who is in turn obligated to inform the attorney on the other side of your new opinion. Just answer the question. inform his or her experts about facts or issues to pay attention to. Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you. When you subsequently receive. as a way of ensuring that your opinions may be brought out at trial. time considerations. there is the authentic wish to discover what your opinions at trial will be and what the bases for your opinions are. On the other hand. the defendant. Of course. 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. you are ethically obligated to so inform your attorney. who may pose the key questions after the adverse attorney has completed his or her side of the deposition. the plaintiff. during the course of the deposition. the attorney. the attorney is not averse to discovering precisely those points that will help his or her side of the case. They try to restrict or even bar your testimony on the stand on the basis that you did not proffer those opinions on deposition. to empty your wordhoard. This information may or may not trigger a supplemental step for you in the form of an interrogatory. The obligation to give your opinions and bases for those opinions in response to questions does not obligate you. and so on. but not ideally. select rebuttal witnesses. a telephone conference.Discovery and Depositions 59 Getting Your Opinion First. Your crisp and focused answers do not require pouring out every thought you have ever had about the case. depositions are occasionally. taken before the entire database has been acquired or reviewed by the experts. however. scheduling problems. This ploy usually can be defused by your attorney. 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). as the Anglo-Saxons phrased it. for instance. admissions and concessions of points or . if any. In this latter context.
The answer was no. even though it was the preadmission history. His mental status was not particularly demonstrative of symptoms of mental illness. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. Your Goals for the Deposition One scholar has described the witness’s goals as truth.e. much was made of this testimony. At trial. competence. under oath. raised many possibilities. 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. fairness. insanity.60 THE PSYCHIATRIST AS EXPERT WITNESS. and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance.. also under oath. that justified the admission. so that your opinion is constrained or limited in a way that decreases its impact. to kill coworkers. attempting to get you to describe what you would do rather than focusing on what the standard of care requires. 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. negligence. For example. SECOND EDITION views detrimental to the other (i. although the history. This procedure elicits sworn testimony. or damages—the entire gamut of forensic possibilities. . When you later give testimony in court. and accuracy (3). that is. your) side of the case. conceptually. You are locked in to that testimony. many attorneys would view themselves as highly successful in this effort if they could only dilute the force of your opinion or obtain agreement with a point that is or even sounds close to a concession. On arrival at the hospital. of course. In a wrongful commitment case against the hospital. is the final standard. Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner. Accuracy addresses the clarity of your vision in relation to the known facts in the case. The points may relate to guilt. the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. based on paranoid-sounding content. he denied to the admitting physician that he had any violent intent. any contradiction is obviously damaging to your credibility: “You swore this now and that then. not the mental status by itself. A patient was committed because of threats. what are we to believe. Truth. however. of course. Indeed.
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. your opinions (and their limitations). this also takes a toll on the court reporter. looking for dirt before even addressing the instant case. 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. Still others. and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. intense concentration sustained over hours is hard work. try to eliminate distractions. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. and your planned testimony. The expert should clear a full day for the deposition to be on the safe side. however. A small number of attorneys attempt to wear down the expert by sheer passage of time. 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. and vigilant at all times. Rather. aware of the serious weakness of the substantive aspects of their case. using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. . several factors urge clearing substantial blocks of time for deposition. Occasionally. as noted above. it is an essential part of the evolution of a case and thus your role in it. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”). hoping to hit the key points if only by accident. will spend hours inching through the expert’s credentials. hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically. If you do not go home after a deposition feeling tired and drained. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. Unfortunately.Discovery and Depositions 61 You should state that you want the written record of the deposition to do justice to your views. alert. if more time turns out to be required. requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit. To do your job. Prepare for this. you were probably not paying sufficiently close attention. focused. another deposition date can be scheduled. you must be rested. More details about this necessity are discussed later in this chapter.
but it is quite risky and may compromise clarity. If the question is compound or complex. SECOND EDITION Listen to the Question Make sure the question you are answering is the one you were actually asked. First. it is serious. 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. 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. ask to hear it again or have it read back. the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know. If there is the slightest doubt. Question: So. the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law. yes. I don’t—I wouldn’t agree with you there. Note.62 THE PSYCHIATRIST AS EXPERT WITNESS. his act could . the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. to be an appropriate way of determining competence in the clinical situation. yes. so you were negligent.] Answer (by case manager): I don’t think I would agree with that. therefore. so you were negligent. which I codirect. let me answer all three components. the case manager’s lack of understanding might be negligent. or you knew and didn’t act. Question (attorney for staff member): Knowing what we know today. in order to determine competence. warning. in the following example. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. or evidence of a propensity for violence. you can give a useful compound answer to a compound question. no. 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. And the third part of your question is. On rare occasions. I am serious. A more effective answer might have been. 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. they have to enter into a dialogue with their patient. Second. ask that it be broken down. “The patient gave no sign. that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now.
not the individual element. no. [The witness sets her own standard of care. in a vacuum. For example. a patient with apparent bipolar disorder challenged an involuntary commitment. did not constitute sufficient evidence of bipolar disorder (although. the totality of symptoms did so). of course. vulgarity.] Answer: Gee. Obviously.” would be perfectly okay. of course.] Answer: Right. Question: Did you observe [patient] attending those meetings. the witness should decline to answer yes or no to such a question.] Yet another deposition tactic is what I call gerrymandering the data. right. the patient manifested rapid press of speech. But this witness has set a standard for herself: “hope for truth. not the only possibilities. which might be used against her nursing colleagues. making a chart entry based on what you were told by other staff —for example. In addition. It is unlikely. testifying 5 years after a suicide. any good nurse does that. The deposing attorney inquired. and grandiosity. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. from a previous shift—is universal practice. a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. The following excerpt of testimony given by a naive fact witness. and too extensive an answer to deposition questions. 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. “In a vacuum. challenge. the answer. or did you make that entry based on information given to you by others? [These are. Gee. I sure hope I saw him because I usually don’t write things unless they are true. reveals the hazards of too effusive. not what others have told you? [The attorney tightens that very screw. “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom. too discursive. Note that an excellent and self-contained answer to such a question or line of questions is. Her answer ignores the fact that the record does not always note the source of the clinical data.Discovery and Depositions 63 neither be foreseen nor be prevented. you write down what you have observed. “I don’t recall. paranoia. Clinical data also can be cut into discrete segments to attempt to refute. 5 years and hundreds of patients later. social obnoxiousness in various ways. When seen.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis. .”] Question: Is that the procedure in which you make notes. [This is not an answer to the question. moreover. or weaken certain conclusions (4).
Do not tolerate this interruption. each speaker should finish before the other begins. Answers Deposition answers are drawn from a surprisingly shallow pool. 3. and so on. but sometimes they do so deliberately to distract you or to break your concentration.” “I don’t recall. Spell unusual names. or you might infer something useful from the type of objection posed. in the belief that your pause means you have finished. 2. The Psychiatrist in Court: A Survival Guide. Overlapping dialogue is awkward or impossible for the reporter. SECOND EDITION The Pregnant Pause After the question is asked. “Objection. review the corresponding discussions in the companion volume. and the importance of speaking slowly. Some key points made in that volume are the hazards of guessing. and the like. Speak slower than usual. clearly.” “no. Recall that the written transcript is the durable version of the deposition. If your concentration slips and you give an answer that you later believe was wrong or even misleading.) Your answers must be verbal and aloud. a garbled record from too-fast speech wastes everyone’s time and money. instruct you not to answer. (See also Chapter 5 in the companion volume. cannot be quoted out of context. If your attorney says. shrugs. incomprehensible questions. Insist on finishing your answer to your satisfaction. drugs. They are. shakes. Be careful about overlapping speech. terms. Also remember to listen carefully to the objection. usually accidentally.” reflect a moment on why the time frame might be important in relation to that particular question. your attorney may be trying to call your attention to something. and other myoclonic responses. Pausing allows you to replay the question in your head and to think about your answer. “yes. Correct any errors.” or a short narrative response that contains the question so that the response. nods. Attorneys may sometimes interrupt your answer. If any of these summary phrases do not trigger recognition. who cannot take down two simultaneous conversations and produce a clear record. Giving the stenographer your business card before the deposition is a highly useful courtesy. Other useful basic tips include the following: 1. immediately correct . not your glib response in the deposition room. not only for the spelling of your name but for contact after the deposition for questions. the trap of double negatives in the questions.64 THE PSYCHIATRIST AS EXPERT WITNESS.” “I don’t know. pause a moment. insist on a time frame. whose written record will be the actual form of the deposition in all future contexts. lack of time frame. in essence. because the stenographer cannot record winks. The pause also allows other attorneys to object. in effect. and carefully for the stenographer.
“Doctor. I tell a lie. have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different.. would you agree that a patient’s sui- . the deposing attorney may ask. .6]. Two points about this problem should be kept in mind.To tell the truth. he could accurately answer in the negative. Second.” Of course. 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. this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. for example. As a deponent witness. this may be phrased as when to throw away the “throwaway” questions.. pp. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor. However. Therefore. No. you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer. To err is human. the entire deposition takes place under oath and under penalty of perjury.Discovery and Depositions 65 it on the record. (The question of coaching is more extensively addressed elsewhere [5. . F8–F9) Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. .) When to Throw It Away In my consultative experience. First.If I said that. exercise this option.” (3. 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. but leaving the error on the record means having to retract it on cross-examination. Therefore. . the deposition may be paused for that consultation. most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. When in doubt. Therefore. in all my years of practice I have probably seen between 400 and 500 fractures similar to this one.. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. where you are retained by the defense. . I’d be lying. but I can’t say that any of them were [sic] precisely like this one. In a suicide malpractice case. . if you are concerned specifically about a matter of privilege that may govern your answer. the doctor might answer: “Well. because no two fractures are exactly alike.
the novice witness relaxes and loses focus. just one more thing”—contain vital material. Doctor. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation. and move on. check your watch. have some water.” At that point. . 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.66 THE PSYCHIATRIST AS EXPERT WITNESS. Subjected to the silent treatment. an attorney.” The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney. SECOND EDITION cidal ideation should be recorded in that patient’s record?” The answer is yes. “Just a few more questions. wait until it gets ridiculous. this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. not unlike some patients in psychotherapy whose doorway pauses—“oh. may attempt to get some off-the-record insight literally in the doorway. throw it away. The attorney asks a question. an attorney may look ostentatiously at his or her watch and say. Remember that the failure to write something down may be below the standard of care. then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. and we’ll be done. is “It ain’t over till it’s over.” Wait to relax only after the stenographer has put away the machinery. Your retaining attorney may also get into the act. thinking about dinner and work to do later. now begins to fire rapidly at the witness. make the concession. of course. Occasionally. still. but the lack of the note did not cause the suicide. influenced by the TV show Columbo. When the answer is that clear. having inexplicably found his or her second wind. on the record. and you answer it. With an encouraging smile the attorney looks expectantly at you without saying anything. but you know enough not to get involved in that “thing. The moral here. Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout. Quibbling over the possible exceptions or equivocating in some way helps no one. by the way. It is not the defendant’s negligence that is at stake in this situation but your credibility. in the colorful argot of the national pastime.
Discovery and Depositions 67 Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor. those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well. “I understand you to be asking me.” in a manner to ignore those feelings.. Some questions are curious because the attorney appears to be flailing at.” Avoid the narcissistic trap of “I can answer anything.” The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. make sure you include the question in your answer on those occasions so that no one is misled.. 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). if you’re grossly suicidal and you have access to guns and drugs and alcohol. therefore.. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can. For example.. No expert is expected to be an expert in everything or to remember everything.” . This method sometimes involves carefully answering the question that the attorney should have asked.. 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.and the answer to that question is . rather than asking about. I find your question a little confusing. the subject matter. but I’m in favor of sensitivity. using categorization. that we can’t isolate ourselves with notions of “I’m not part of our society. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man]. and this response is perfectly appropriate. they often fail to realize that they do not have forensic evidence to back up those notions.. and answer that part. as is “That is outside my area of expertise. “I don’t know” or “I don’t remember” is a fully appropriate answer. The only valid answer is that those questions are outside your area of expertise. 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. Note how the first question was a total loss and had to be rejected completely.
and far less friendly and instructional than it would to a jury. I know that’s a good hospital. In one deposition. Do not do anything.68 THE PSYCHIATRIST AS EXPERT WITNESS. fortunately. The two sides. heretofore quiet and almost appearing bored by the proceedings. There are good hospitals out there. As noted. more pedantic. 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. careful speech that may be more formal.” This assumption is dangerous because it suggests bias. or facilitate calm negotiation. scream at each other. so I assumed that they knew what they were doing. but your belief might interfere with your detection of negligence in this case. That is as it should be. Because the stenographer (and not the jury) is your audience. .” as it were). clear. This fight is an attorney-to-attorney matter. an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty. firm. the next question will be coming your way. this implies arranging coverage for your patients should a crisis occur. Assumptions The deposing attorney may ask. for example. The only assumption you should make is good faith.” This position of timeless patience puts the onus appropriately on the attorney to move things along. you will be addressing him or her in slow. The only vital difference is the way in which you speak. unfailingly polite. no matter how generic or basic it may seem. Your attitude should convey. “I can continue until midnight. A situation that. stay seated and keep quiet until it is over. “Well. Clinicians may be tempted to call on their clinical skills to temper violence. SECOND EDITION Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm. and demonstrate other regressive behavior. threaten to go before the judge to plead their points. should that become necessary. the parties are really the parties in the case. clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important. you will make it worse. mediate the debate. clear. When everyone is through. stand up in their chairs. that is not your problem. more technical. If the admission note turns out to be a forgery. and so on. authentic or merely theatrical. more boring. occurs rarely may throw the novice witness: a roaring fight between attorneys. never losing your cool. “Did you make any assumptions about the case before you began?” You may be tempted to say. meaning that you assume that the documents are what they seem to be. and you might well know some of them. In the specific malpractice context. you assumed it was a medical record in good faith. after which the expert examines for evidence either way.
note whether you agree or disagree in general with the stated points. you cannot take the position that no text is authoritative. The pitfall here is that to declare a text authoritative is to endorse it in its entirety. have their limits. or article) is authoritative in the field or in the subject of the current case. and DSM gives the formal criteria for diagnoses. merely official. Remember. Acknowledge that the Comprehensive Textbook of Psychiatry (7) has many authoritative entries. these publications are not uniform in authoritativeness. the parallel assumption would be “Sane. Be sure to maintain a sense of proportion about these references and their utility. Novice experts. 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. But both. For example.” Learned Treatises In the course of a deposition. this is a matter of risk management for the pharmaceutical companies. to make an informal clinical diagnosis. Alternatively. However. may imitate the attorneys by overvaluing these texts and ignoring their limits.” For the above reasons the answer to the question as to whether you made assumptions should not be “no. the disclaimer at the front disavows its applicability in many forensic contexts. inescapably. Some experts respond that the DSMs are not authoritative.Discovery and Depositions 69 Failure to begin from that essentially neutral position may suggest bias. the examining attorney may ask you if a specific text (book. In one limited sense. you may be asked to supply the names of authoritative texts yourself. one may suspect a disorder based on a patient’s meeting too few DSM criteria to justify a formal diagnosis. After reading the entry carefully. of course. chapter. desperate for stable islands of consensus in the tossing seas of uncertainty. Most modern books and articles have multiple authors or editors. yet the clinical diagnosis and treatment still may meet the standard of care. Moreover. and innocent until proven otherwise. Comparably. no one wrote a previously published book or article with the exact case in mind in which you are involved. both sources are “authoritative”: PDR contains the actual package insert information about drugs. but ask to be shown to which one the attorney is referring. then. PDR entries for the most widely used antimanic anticonvulsants may not include information about that specific usage. The following excerpt cautions psychiatrists about the accuracy of testimony regarding the professional literature: . In a criminal context. including those parts which conflict with your testimony. competent. You then may be asked about disagreements or conflicts between your testimony and the principles stated in the text.
Have your attorney review your case file for any items that might be considered work product and thus under a privilege. The latter may be privileged. be balanced and accurate. whose transcript will endure and be used for any impeachment possible. The usual audience of the standard deposition is the stenographer. Above all. you also may want to meet one more time with the attorney’s client before the deposition. If you are really unsure about something. Give both (or several) points of view if they exist. police reports.70 THE PSYCHIATRIST AS EXPERT WITNESS. In contrast. In some cases. You must exercise some care in these discussions as they may be discoverable. laboratory values. or “cheat sheets” (i. Obviously. Your attorney then can communicate with the retaining attorney. Meet with the attorney and review the issues. The Video Deposition A modern wrinkle on the procedure is the video deposition. p. and so on so that you can buttress all your conclusions with specific elements from the database. you will need to review a wide array of information. but this is not your problem. outlines or summaries for quick reference) may be subject to subpoena for the deposition. especially if details remain unclear or if over time the clinical condition has changed or evolved. In addition. SECOND EDITION When quoting the literature. check the accuracy of any numbers (9).. some discuss details of trial strategy in their letters to you. Frankly admit if anything has been removed from your file. consult your own attorney. Many attorneys anticipate this problem and send only bland correspondence... Any notes. Also. Arrange to do so with the attorney sufficiently early. actually visiting a site may be important. and you may have to furnish copies to opposing counsel.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 . this conversation is protected. in the video deposition. summaries. well before the deposition. (8.e. review your files as diligently as if you were going to trial. remember to go to bed early. let the attorneys determine whether it is discoverable. rehearse—the details of the links between your conclusions and the facts. an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. record notes.. it is wise to review—and if necessary. statements. Under some circumstances. 571) Final Predeposition Preparations Before the actual deposition.
juror-friendly. and must beware of inappropriate gestures and personal bodily attentions. trial-suited English. but errors can creep in. 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. . “It’s an us-and-them situation” was rendered “It’s an S and M situation. At least one copy of the transcript is returned either to the court reporter.Discovery and Depositions 71 the audience. the expert may wish to retain a copy for teaching purposes after the case is over. checking for errors and typos. Most court reporters are extremely good at their jobs. a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. jargon-free. the only vehicle) for the expert’s testimony. you should try to direct your gaze toward the camera lens. say. and the deponent signs under pains and penalties of perjury. instead of—your personal appearance in court. of the word “not. who may see the video displayed in addition to—or. you are under constant scrutiny. this time in a permanent record. Remember to keep your language level. careful. but under some circumstances the notarization can be waived. The video deposition presents a number of possible pitfalls. This approach risks eventually being papered out of house and home. When you receive the deposition transcript.” and rendering. the retaining attorney. Despite the fact that there may be movement of various sorts by others in the deposition room or studio. As in the trial described in the next chapter.” 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. My personal favorite is when the phrase. the deponent expert should always ask for a personal copy to review in preparation for trial. at times. Recall that omission of a comma. In the current economy. “irresponsible” as “responsible” are small changes with profound results. read it very carefully. After the Deposition Always ask to read and sign the deposition. the video may also serve as the vehicle (in this case. If the deposition has been particularly instructive or noteworthy. and pedantic level of the ordinary deposition but in basic. or the deposing attorney for distribution to the parties. representing the jury. If the expert is known to be unavailable for the trial dates. not at the ponderous.
72 THE PSYCHIATRIST AS EXPERT WITNESS. 1982 Gutheil TG. 1993 Malone DM. J Am Acad Psychiatry Law 29:313–318. 3. National Institute for Trial Advocacy. IN. Milwaukee. Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. Defense Research Institute. Current Psychiatry 7: 25–28. Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. Med Econ 82:45–48. Falmouth. Defense Counsel Journal 4:174–179. 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). MD. Woodruff MS: Deposing experts. 2008 Rice B: Malpractice: how to survive a deposition. 9. The Practical Lawyer 39:55–63. 6th Edition. South Bend. 36. WI. SEAK. MA. Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. 1999 Babitsky S. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 1987 . 39–40. 2007 Gutheil TG: Reflections on coaching by attorneys. legal fictions. 8. 7. J Am Acad Psychiatry Law 31:6–9. Lippincott. Baltimore. SEAK. The Practical Lawyer 33:69– 78. 2001 Baker TO: Operator’s Manual for a Witness Chair. 2003 Kaplan HI. 1996 2. J Am Acad Psychiatry Law 34:18–22. Simon RI. Falmouth. 6. SECOND EDITION References 1. Child Abuse Negl 17:571–572. Williams & Wilkins. Willliams & Wilkins. 2006 Gutheil TG. 5. 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. 4. Gutheil TG. Baltimore. Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI. Vols 1 and 2. 2005 Suplee DR. Suggested Readings Babitsky S. Mills MJ: Legal conceptualization. Bull Am Acad Psychiatry Law 10:17–27. 1983 Gutheil TG. Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Simon RI. and the manipulation of reality: conflict between models of decision-making in psychiatry and law. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. MD. MA. 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster.
I addressed the six Ps of trial preparation. If you are uncertain about the guidelines for trial preparation. I review some of the basic courtroom procedures. In this chapter. The Psychiatrist in Court: A Survival Guide. 73 . reviewing and analyzing opposing expert testimony and planning responses or rebuttal. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. trials do come around every so often. pled out. is recommended as an orientation. 2.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. 1. Planning. or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. Nevertheless. 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. and they are the subject of this chapter. Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide. review that chapter. the same six Ps should be reviewed but with a slightly different emphasis. For experts who have spent little or no time in court. For the expert. For the expert witness. If you are testifying away from home. and devising means of locating key passages in the database quickly. examining the companion volume. settled. Preparation.
what previous testimony has been given. Choose some likely analogies or metaphors (discussed later in this chapter) to illustrate your points. Define the limits of your testimony. and select useful examples from your experience to make central points. 5. On cross-examination. practice sketching any visual aids you will need for the courtroom blackboard. You at least need to hear the questions that the attorney plans to ask you and to think about your answers. and all such details. the relevant literature. Pitfalls. and the data relevant to the other side of the case. Presentation. Think about how to express your opinion and how to explain and buttress your reasoning with facts from the case. 4. Most of these matters are best handled on direct examination where some measure of control can be exercised. Clarify and confirm your travel arrangements. Pretrial conference. The pretrial conference is probably one of the most important stages of preparation for trial. and what the emotional climate of the courtroom is. 6. You should rehearse ways of expressing information to the jury. SECOND EDITION You do not need additional worries about what is going on at the office to cloud your focus and split your concentration.74 THE PSYCHIATRIST AS EXPERT WITNESS. Confirm travel arrangements and other details. You also need to hear how the trial is going. admit frankly that you insist on pretrial conferences as an essential part of preparing for your witness function. Review the weaknesses in your opinion. the contradictory evidence. your publications (especially those relevant to this case). 3. Insist on this conference if the attorney is equivocal or resistant to the idea. and your past experiences. the floor of the courthouse on which the courtroom is located. Never assume that your testimony at the trial will necessarily be over on the same day that you are scheduled to arrive for court. Practice. explore well in advance access to the courthouse and restrooms with your attorney or with the clerk or bailiff of the court. It is not enough to know the database. the unknown issues. Even more distressing. parking arrangements. some attorneys for the other side have been known to stall or drag out their questioning of you for the explicit purpose of rattling you with the need to make stay-over arrangements. you need to know through choice and practice how you will convey your opinion to the jury. 7. location of restrooms. Build in contingency plans for the possibility that the trial extends into the next day at least. If you have a disability. Consider taking a taxicab to local courts to avoid parking hassles. . the location of the trial. and the expected cross-examination. what the judge is like. Clarify in your own mind how you plan to deal with questions about your fees. if asked whether you talked to the lawyer (a query often phrased to suggest that you were coached as to your opinion).
this kind of potentially valuable hearing and screening device can also be abused (2).S. and to ensure that recognized approaches to the subject matter are chosen. From the viewpoint of the expert. Once in the courtroom. Wait in the public seats until actually called to the stand. Practical Matters Preparing to Go On Many courts sequester witnesses. that is. but if you are the only one standing. sit down. experts are not allowed to be present in court for the testimony of any other witnesses.. rise for the judge’s entrance. Supreme Court case. particularly experts. may occur prior to trial (occasionally.e. the best approach is to exercise care about the methods used to reach conclusions. Doing so is supposed to decrease anxiety and give you a feel for the setting (i. Regrettably. The topic requires more extensive discussion (1). 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. its methodologic reliability. Such a hearing. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well. Before going into the courtroom. you will find it valuable to locate the restrooms and telephones. to be able to articulate the bases and reasoning behind those conclusions. in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). named for the plaintiff in an important U. When you are allowed to hear the testimony of other witnesses. 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. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge. which are sometimes in obscure locations in older courthouses. a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. much valuable information can be gained and the tone of the room determined. Some scholars recommend coming in early or during a lunch break when the court is empty to sit in the witness chair before you actually go on. where the jury will be and what .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. and whether the testimony will fulfill the legally required expert function in the court.
so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand. a particular citation is. only a copy of the expert report that is already in evidence or only a curriculum vitae).. in an often extensive chart or deposition. When no documents are before you on the stand. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. the opposing attorney cannot search through them for something with which to impeach your testimony. having the whole database on the stand permits greater support of your testimony with specific data from the documents. the entire database is usually present at both the attorneys’ tables and therefore is immediately available. because his or her opinion is being given from memory. and ensures the accuracy of your recollection by direct verification. The expert appears more confident and knowledgeable about the case. essential medical records . What to Bring Experts and their retaining attorneys vary in whether they prefer. 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. yellow self-stick notes. Note again the importance of having and practicing a plan of organization. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court.g.76 THE PSYCHIATRIST AS EXPERT WITNESS. even for experienced experts. and 3) you may become lost in excessive data. The expert should determine which of these two approaches is more suitable. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. Key documents might include my report and interview notes. tabs. allows you to read the full context from which the cross-examiner may have extracted a misleading snippet. 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). Each preference has its pros and cons. if needed. Recall that in almost every case. 2) as noted. dog-eared pages. My own preference is to strip down what is brought. SECOND EDITION the room looks like from the hot seat). as are all the substantiating data. or your own table of contents devised for more extensive documents. The downside is the need to remember a vast amount of detail and to recall where. while the experts are testifying. On the other hand. Note that some anxiety is normal. the attorneys will have it).
Indeed. or if you must.The Expert in Trial 77 (pruned to relevant periods if needed). Finally. Arranging for a cup. the bored juror. showing off how busy you are and how court is taking you away from really important matters. a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions.. glass. the defendant or . Avoid either ostentation. perhaps comfort should rule.e. and you will not go wrong. testifying is thirst-provoking work. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance. affidavits. I can use my table together with the attorney’s copy of the deposition. eccentricity. and check in. in the sense that you are usually under observation by someone—the bailiff. during breaks. if you must. Above all. some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. or carafe of water is an excellent idea. Demeanor Being on the stand is not unlike being filmed. ornamentation. depositions. Stick to the conservative business mien. and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. For depositions of less central players in the case. If I need the actual page or quote. This table of contents enables speedy reference to key facts. see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide. highlighting marker. do not wear new clothes. 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. and cutting-edge high-drama fashion or excessive informality. what you wear should fit well and be well broken in. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt. ensure that they are turned off. 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. Do not wear or carry your cellular telephone or beeper. A handy pen or pencil. and similar data. It is unclear whether either strategy is superior to the other. the bailiff usually will keep it filled. 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. I take to the stand a one-page table of contents (i. If you are completely uncertain about what to wear to court. Arrange appropriate coverage so that you do not have to worry about being reached. your mode of dress should convey the fact that you are a professional in the courtroom on business.
humor may seem disrespectful. or degrades you. Such reactions may be misconstrued as disrespectful. Doctor. even when someone else is speaking. not of the attorney in question. or obtuse to the seriousness of the issue. Attorney (with a slight sneer): Isn’t it true. that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter. you know or should know that it is not personal and has nothing to do with you. Your identity on the stand is that of teacher. get interested in what you have to say and stay interested. Without such alliance. humor directed against yourself may show that you do not take yourself too seriously. Be clear. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. If you become huffy or outright mad. an attorney—at all times. Avoid personal body attentions (such as scratching) as much as possible. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. such as rolling your eyes at the jury when a particularly fatuous question is asked. you are likely to be too involved and therefore possibly biased. SECOND EDITION plaintiff. demeans you. for example) as body language consistent with candor.78 THE PSYCHIATRIST AS EXPERT WITNESS. and sarcastic. as follows. A witness with an apparent chip on his or her shoulder (and in court. fluffy. . flip. and you are unfailingly polite. it is important. Scholars recommend keeping the front of your body open (by not folding your arms. impugns you. attorney moves on to another subject]. Doctor?”). all such chips are apparent) is particularly unconvincing. If the attorney is hostile. and stuffy. in court it should be treated as a double-edged weapon likely to turn and cut the wielder. sneering. not credible. Even when an attorney attacks you. With discretion. Beware of “involuntary” gestures. you win the exchange. Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy. 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. obnoxiously facetious. Make your point because it matters. however. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. There is no reason for a teacher to get mad. but of the jury or the entire process. and you want the jury to understand it. as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard.
and “waffley. Although you are a teacher. or waxing argumentative rather than instructive.” Make your point as concretely as necessary and back it up with hard data from the database. They are not excessively academic. or prone to nit-picking. pedantic. It is not the same as “certainty” (100% sure). not stuffy. If no microphone is provided. jargon laden. even inhibited souls will nod if they can hear.” that is. . but without intimidating staring. not just a classroom exercise. Direct your extended remarks to the jury. to concede a point that really doesn’t mean much. what fools these jargonists be). Finally. and to admit that rules have exceptions. to agree that some things happen sometimes. good teachers are lively and interesting. Speak to the most distant juror to be sure your voice is audible. a juror who cannot hear may be hesitant about saying so in open court. Haggling with the attorney over a tiny abstruse point. adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i. Because jurisdictions differ as to the precise definition. ask if you can be heard by the farthest ranks of jurors. If you must use. blunts your argument and weakens your credibility. or respond to jargon. the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide). yet may ultimately give up on your testimony after straining to hear for too long. the concept is sometimes rendered mathematically as a 51% certainty. concede a remote possibility and move on.e. As occurs during the depositions noted in the previous chapter. Testimony Direct testimony should unfold in an organized manner.. If in any doubt about your speech volume. to accept a possibility as such (almost anything is “possible. explain. evasive. adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. project. they are usually poorly received by juries. understandable manner that brings the details together in a recognizable gestalt. Keep in mind the expert’s role in telling the story in a coherent. theoretical. the most common beginner’s error in the courtroom is the inability to “throw it away. avoid discussing unconscious dynamics unless absolutely needed for your point. If a microphone is available. as a result of your careful and thoughtful preparation with your attorney. the trial is a human process. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”. In general.The Expert in Trial 79 Being fluffy means being too abstract. making roving eye contact with various jurors whenever possible.” but only a few things reach reasonable medical certainty).
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
the jury usually appreciates being given the “inside story. as if to convey. Recall that this is direct examination by his own retaining attorney. and the expert has theoretically prepared to tell the story in a coherent manner. if you do that. the dirt stays on the floor. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions.—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife. 83 Although this mode of explanation may seem cumbersome. “I have no questions for this witness. and throat clear that you emit on the stand. grunt. even if the technical details are lost in the shuffle. I have been impressed by their ability to grasp what is at issue. The jury hears the testimony twice—an aid to both memory and persuasion.” Realistically. stutter. Um—as the events became closer to the—um—incident itself [the murder]. That is how this kind of antidepressant or mood elevator works. “I don’t care to waste my time on this whore.The Expert in Trial (draw a barrier) this process. As you can grasp by merely reading this response aloud. 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. any testimony from this witness would be bought and meaningless. just like putting your hand over the vacuum nozzle. The hazards of lack of practice are revealed by this following segment from an actual murder trial. . Adventures in Cross-Examination For experienced experts. 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. Consider practicing such a description with your attorney or colleagues or friends. The expert is on direct examination by his own retaining attorney. Respect the juror. This is a powerful argument for at least organizing your thoughts before you begin to testify. the chemicals stay in the spark gap and keep working so that your mood is lifted. do not underestimate juries. In the same way. depressed— um—and seeking help. Over the years. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed. some scholars assert. such an avoidance of cross-examination is sound trial strategy.” preferably said in a mildly contemptuous tone.” but this appreciation is lost if the jury cannot understand or follow your description. and slavishly but perfectly appropriately. it is numbing to a jury. may record every pause. the best cross-examination is.
such as the previously listed leading questions. Even those attorneys who opt to engage in cross-examination are usually (but. “Although the present case is a clear exception to that rule. The following are some examples of the last (all are leading questions. or alternatively. First. questions beginning “Is it possible. the question answers itself ). It is better to say. or the answer may be obvious from the question (i. no problem. as opposed to the attorney’s apparently doing nothing (clients often do not grasp the power of “I have no questions”). can they not?” • “Another expert might come to a different conclusion. attorneys do not perform this simple but effective maneuver. Experienced experts sometimes begin their responses with the subordinate clause rather than the main one. The second fundamental principle of expert cross-examination is keep the expert on a tight rein. surprisingly.” the attorney may move on to the next question after you have said.e. “that’s generally true” and you may be too flustered to challenge the action. The tight rein on which you are held may make it difficult to get your opinion out there. The attorney may know the answer to a particular question from the expert’s report. The attorney avoids asking open-ended questions that permit the expert to repeat or expand on direct testimony.. not always) aware of two fundamental principles that should guide this activity. but in this instance it is not. interrogatory. and even the attorney’s competitive feelings directed toward the expert.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. what you say is often true in other cases.” are almost always answered yes on the theory that almost anything is possible). the attorney asks closed questions. the attorney’s competitive strivings with the opposing attorney or firm. ask only questions to which only one answer is possible (fittingly. SECOND EDITION Most often. which may be asked on cross. “That’s generally true. however. Attorneys will not avoid cross-examining the expert for several reasons: the attorney’s narcissism (“I can handle this expert on cross-examination. the attorney’s wish or need to have the client see the attorney doing something. deposition. equivocating hurts you.. If you want to say. Instead. never ask a question to which you do not already know the answer. forcing the cross-examining attorney to permit them to finish their statements rather than cutting them off. Throw it away.” .”) or exhibitionism (“Watch me shine!”).. or publications. Doctor?” The only possible truthful answer to all the aforementioned questions is yes.84 THE PSYCHIATRIST AS EXPERT WITNESS. isn’t that right.
” Listen with intense attention to the question. a question will require more time for prolonged thought or searching of your memory. Practically. Always ask to see the context if you do not immediately and completely recall it.” This response may be foreclosed by the judge directing you to answer anyway. Quotes On cross-examination.” “no. the attorney may quote something that you wrote or lectured on. to be sure you are clear about the question.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. say it. we are going to take our midmorning break right now. We’ll reconvene in 15 minutes. Breaks During breaks that occur in the middle of cross-examination. if not. You took an oath to tell the whole truth. Scholars liken agreeing to this either-or approach to signing a blank check. and a mere yes or no may fail to convey the “whole truth. “I’m going to take a moment to think about that. After Rodin Pause briefly before answering each question to allow replay of the query in your mind. some attorneys advise not discussing your testimony. if needed. Doctor. or have you dozed off? It is best to state. Remember that you did not write the article or make the statement during a lecture with this particular case in mind. At such moments.” and do so. a judge may even decide to declare a recess: “While you are thinking. to consider your answer carefully.” The break gives you ample time to think. If either will do so. because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination. I seriously recommend that you try to look as if you are thinking to clarify for the jury what this pause in the proceedings is all about and to allow those jurors who have dozed off to be awakened by the sudden silence. At times. and think seriously about whether yes or no will represent the whole truth. because “What did you discuss?” may well be the first question when you are back on the stand (only discus- . and to allow your attorney to object. The key word is truthfully. state that you cannot answer yes or no. some sources suggest answering at the outset. consequently.” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). this type of questioning means that you have only three answers available: “yes.
. you would have been obligated to so inform your attorney. The cross-examining attorney may make an issue of the fact that you had not seen a particular document or known a particular fact before you gave your opinions in your report or deposition. Now you must testify on the witness stand. These include biological and physiological crises or circumstantial ones. SECOND EDITION sions with your own personal lawyer are protected). others find telephone calls distracting and let whoever is covering for them handle things. because it is based on data. or inadequately grounded in data. you have confused loyalty to your attorney with the oath to tell the truth. Crises Various crises may strike while you are on the stand. but let’s assume it did not). as a “preliminary” report. is your actual trial testimony.86 THE PSYCHIATRIST AS EXPERT WITNESS. Your final opinion. Subsequent communications may be labeled supplementary reports to keep the sequence clear. the one that counts. 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. I recommend avoiding eating heavily. such as the discovery that you have left a key document in your suitcase across the courtroom or. could change with complete validity based on some new fact that you hear for the first time during the trial. Later. In theory. The thrust of this line of questioning is to convey that your opinion is premature. and some additional material may have come your way just before the trial (which. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume. even worse. For the lunch break. your opinion. if requested. you may have been deposed. incomplete. This change is as it should be. The Final Opinion During the course of expert consultation. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. in the trunk of your car. An aid to this conceptualization is to label your first report. Some experts want to call their offices during breaks. Use your own judgment and knowledge of your biorhythms. had it changed your opinion. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data. you may have written a report after reviewing some quantity of material.
you exit. for example. you will appear inept. Do not hang around to hear what other witnesses say. entitled. at odds with your objectivity. Forensic etiquette requires that you just leave. Your job as expert is important to the case. Focus on slow. one of the parties or even one of the attorneys reaches out to shake my hand.” At this point you say.” pack up your papers (being careful not to include and therefore abscond with any official case exhibits). Ask the judge if you may take a brief break for personal reasons. The End of the Affair Finally. Doctor. The judge will almost always grant this. “Thank you. This behavior conveys too much interest in the outcome for someone who is not a party to the case. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. If you do shake hands. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor. No one knows the effect of these gestures. you seem to be acknowledged . it poses a dilemma of a no-win situation. More troublingly. and serious distractions impair your work. Do not stop to chat or debrief with the attorney. nod politely to the jury. If a delaying tactic is not used. What do you care what happens? You only testify under oath. Deal with the problem and then continue with your task with restored focus. when you are through. “You (or the witness) may step down” or “Thank you. it invariably conveys the strong suggestion of partisanship. conservativeness is probably better (the discreet nod rather than the glad-hand wave). childish. by needing to go to the bathroom. and both grudgingly acknowledge that neither has any more questions for you. wave at the jury box (“So long. Your Honor. get down from the stand. it is preferable just to hang in there. that’s all. and sit more upright to relieve tension. Do not be inhibited by fears that.The Expert in Trial 87 Do not hesitate to ask the judge to permit you to take a break for these reasons. stretch your limbs behind the screen of the stand. or to learn of other subsequent activity. fans!”). Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. Some more extroverted experts thank the jury out loud. sickly. as always. or emit other social behaviors. measured breathing. or weak. and go. to see the outcome. The judge dismisses you by saying. On occasion as I have left the courtroom. While this is a common and respectful courtesy.
some forget. 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. Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. and the like—impinge on trial outcome. Take only your report. while acknowledging that experience is still. For your personal development as an expert. References 1. I recommend against keeping a won-lost record of how the trial went according to the side for which you testified. J Psychiatry Law 28:235–251. A far more detailed analysis of testimony can be found elsewhere (5). if you do not or you ignore the outstretched hand. 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. It is perfectly appropriate after some time has passed to call and ask the outcome. Most courteous attorneys will inform you later. always seek feedback and reactions to your participation. Finally. Gutheil TG.88 THE PSYCHIATRIST AS EXPERT WITNESS. Your perfunctory shake of the outstretched hand while you wear a distracted or preoccupied look may be the best compromise. Because this brief volume can serve only as an introduction. the best teacher. “juror countertransference” toward the attorneys. as much as possible about what happened and why it happened. If you have traveled far with a heavy load of database materials. Forces beyond your control and outside your testimony—such as the demographics of juror selection. Surprisingly. nothing beats clarifying in advance with party or attorney that you will leave directly without any contact—probably the best approach. 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. this task is for the lawyers. 2000 . however. you seem rude. I recommend perusing some of the suggested readings below and those in Appendix 4 (“Suggested Readings and Web Sites”) that address testimony. SECOND EDITION for good (but partisan) work. as always. by letter or telephone.
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
M. with a deposition for a third case. Because your attorney has the most interest in your presence. You must do the best you can with what you’ve got. of course. with suitable preparation of the jury. for example: “Doctor. You may have a little room to maneuver in terms of the order in which you testify. court dockets are crowded and leave little flexibility. tops. maybe 2. Large numbers of people are involved. add another layer of challenge. The last two priorities are interview and report. Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is. You’ll probably be cross-examined for 1.” Smile politely when you hear these words but make expansive plans. cancellation) is as follows. but things happen. Such a conjunction of scheduling conflicts requires a great deal of diplomacy. and telephone calls to resolve them.92 THE PSYCHIATRIST AS EXPERT WITNESS. I know you have a busy schedule. the hierarchy of urgency and therefore attempted postponement (or at worst. If a trial and a deposition are scheduled for the same time. and serious matters hang in the balance.e. You’ll be out of there by lunchtime. SECOND EDITION for months without any forensic activity whatsoever. Trials take first priority. As a rule of thumb. sharp. I can’t imagine my direct examination taking more than an hour. two trials in different states will be called simultaneously. which also require several people to synchronize their schedules. the trial should take precedence. a forensic interview. theoretically. An attorney who planned to have you “bat cleanup” (i. hours. and other-side attorneys are reasonable.. and accommodating. 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. Travel glitches (discussed in Chapter 10. so let’s put you on first at 9:00 A . although obviously fewer persons and a shorter time frame are involved than are for trial. You can count on your eyeballs the number of times this clockwork model actu- . but during the very week that you have scheduled four weddings and a funeral. requiring two parties to match schedules. the other side may be willing to have your testimony inserted into their side of the case. negotiation. he or she will be exerting the greatest efforts to make it all work out. comes before a report. This type of schedule is close to reality. The second priority is depositions. attorneys.” in this volume). The tension here is that some courts. “The Expert on the Road. flexible.. others are not. Because your reports can be done at any time of the day or night. In extreme circumstances.
” In addition. Why? Although some judges are scrupulously punctual. J Psychiatr Pract 12:50–54.Some Pointers on Expert Witness Practice 93 ally occurs. some are not. The jury takes a long midmorning break. However. DC. 2006 . Commons ML: Trading forensic and family commitments. no clear conclusions can be drawn. 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. 2. The attorneys wrangle over whether some document relevant to the next witness is admissible. Occasionally. Bull Am Acad Psychiatry Law 24:533–546. (More suggestions on scheduling are included in Chapter 10 in this volume. References 1. The subject may represent some kind of taboo because it is rarely discussed. Gutheil TG: “Paraforensic” aspects of expert witness practice. 1996 Suggested Readings Gutheil TG. it is not uncommon for an out-by-noon case to extend into the next day. and family. the odd juror gets stuck in traffic. Washington.) 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. 2002 Reid WH: Forensic practice: a day in the life. 2004 Kearney AJ. Gutheil TG. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. negotiation may be possible for some scheduling conflicts but not always. J Am Acad Psychiatry Law 32:356–358.M. Although my colleagues and I tried to study this issue formally (2). 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. In the end. a judge will treat the time between 9:00 and 9:30 A . The best aid for peace of mind for the would-be forensic expert is an understanding spouse. The judge assigns a long lunch and hears another few motions just afterward. Thus. partner. difficult choices may have to be made. American Psychiatric Publishing.
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or a physician’s deviation from the standard of care. attention to the preparation of the written document results in a product that assists the legal system in its efforts and goals and validates your contribution to the process. or for a disability determination. In this chapter.CHAPTER 8 Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system. I focus on writing the full-fledged forensic report. Examples of such writing include a letter providing an assessment of a person’s fitness to drive. allowing careful legal analysis and reflection on whether you will be helpful on the case. to serve as a witness. 95 . some basic principles on letter writing to the court are described and are not repeated in this chapter. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form. for a worker’s compensation claim. In The Psychiatrist in Court: A Survival Guide. a court. a description of an independent medical examination for a personal injury suit. a defendant’s criminal responsibility. The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. or to serve on a jury. or a full evaluation of a person’s competence to stand trial. In all such cases. or a quasilegal agency such as a board of registration or a bureau of motor vehicles. an attorney.
In this chapter. because the first is self-explanatory and the second is an extract of the third. of course): 1) no report. Without referring to other documents. detailed report. Critical documents should be briefly summarized within the report.D. Forensic report writing. all should govern the form of the report. Resnick. and 3) the full. simplicity. It should be just long enough to cover the essential information but not so long as to exhaust the reader. may take three major forms (with variations possible. Consequently. the reader should be able to understand how the opinion was reached from the data in the report. I refer to him explicitly in the text). “Reports should be self-sufficient. Despite these useful functions. For similar reasons. It should stand alone. Resnick. then. which states all of your conclusions and the analysis of all the relevant substantiating data. which in that jurisdiction is discoverable by the other side.. the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions. Resnick also identifies the “four principles of good writing”: clarity. 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. in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit. the report may present materials or approaches that the attorney does not wish to share with the other side. . has generously and graciously granted me permission to cite some of his advice on report writing. M. 2) a summary report. painstaking preparation. In other situations. without detailed discussion of the bases or reasoning behind those conclusions. for which I am most grateful (where I cite his material. which presents your database and conclusions only. your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. These are all powerful arguments for careful thought. Obviously. General Remarks The report as a whole should meet certain criteria. I emphasize the third form. Phillip J. and meticulous proofing and review of any report you produce.” Dr. and humanity. According to Dr. SECOND EDITION Alternatively. It should contain everything that you need to support your opinion and no irrelevant material. brevity. your report may be the decisive factor in convincing the other side of the case to settle or drop the matter.96 THE PSYCHIATRIST AS EXPERT WITNESS. the attorney may ask that you not furnish a report.
or emendations should be titled “Supplementary Report. One way is to provide the case citation or caption in whole or in brief (e. of the report should address the question of why you are writing this report. think of your report as a memorandum and use a standardized format. may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents. In that case. Include any interviews per- .. Jones et al. The Occasion The occasion. One model by Dr. reasoning that the occasion is obvious from context.g. The heading should also include your letterhead and the date of the report. police reports. the charges in a criminal case. otherwise. the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records. use a standard business letter format.. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest .” and subsequent contributions...” • “I examined Ms.. sometimes called the referral.. emotional injury or psychiatric malpractice). . that is. I examined (name of examinee) with regard to (forensic issue). legal pleadings.. testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses.. the case or docket number if known. Smith v. Identifying data can be presented in a number of ways. or the type of case in a civil matter (e.” Some attorneys.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs). what is your standing in the case that justifies this missive? How and why did this examinee get to your doorstep? Examples might include the following: • “At the request of Attorney John Smith (or Judge Janet Jones).g. John Johnson). additions. Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. or State v.” The Database After identifying the occasion.Writing to and for the Legal System 97 The Heading The first report should be titled “Preliminary Report. and depositions. Resnick is included at the end of this chapter.
including interview data) and your total clinical background of training (what you were taught) and expe- . The rationale for placing the conclusion just after the database list (and thus at or near the beginning of the report) is that the reader (judge. chronologically. and so on. SECOND EDITION formed and their date and length. First. logical grouping (e. for example. (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . 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. you are free to choose your favorite. in the treatment of (plaintiff ). no convincing case has been made for the inherent superiority of either approach. that. the overall basis is described as both the database (all the material reviewed in the case. or other) is free to stop there and make decisions about future directions in which the process should go. attorney. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. 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.. Note the wording.98 THE PSYCHIATRIST AS EXPERT WITNESS. Although each group has a rationale. all depositions). might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience. all medical reports. . the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard). The remainder of the report is thus treated as optional reading. held to a reasonable degree of medical certainty.. The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. it is my professional opinion. about the disposition. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. The rationale for placing the conclusion 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. (or.g. or according to some natural. The documents may be listed alphabetically. A typical conclusion in a malpractice case.
If your conclusion comes at the end of the report. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. your conclusions should be presented in . sometimes different spins on the truth. but occasionally. Dr. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. more likely than not). In criminal cases involving the insanity defense. the defendant usually has admitted the act for which he or she is charged. Resnick explains. sometimes frankly contradictory. Second. usually.Writing to and for the Legal System 99 rience (what you have found for yourself by practicing in the field about which you are testifying). although representing the core of your opinion. In these cases. Finally. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making..e.” In every case. Remember that the conclusion. or other. you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i. malpractice. you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. Your ability to back up every one of your conclusions with multiple specific examples and corroborations from the database is the essential test of your value. you 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).” Multiple Realities In civil cases. be it competence.e. and credibility as an expert witness.. Third. Supporting Data After the conclusion. insanity. is essentially boilerplate (i. “If there are two versions of the facts. If your conclusion is stated at the outset. this section should contain extracts of previous material directly supporting the points you are making. you can present the supporting material in several ways. The reader should not have to use his/her own inferences to understand the point. standardized legal language). effectiveness. “Reasons supporting opinions should be clearly and fully stated. Dr. As Dr. it is predictable that plaintiff and defendant tell different stories. offer alternative opinions. the expert should scrupulously avoid assuming one side is correct. Resnick states. you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue.
. you may receive requests to alter the report in some ways.. even if it has been removed from your report for brevity. or to change the substance of your opinions. and deleting. but generally there is no inherent problem . These are not weaknesses of the report..if defendant’s version is true. 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).” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true. interview of plaintiff blocked by attorney.” This approach prevents your seeming to side with one party in the case. (Remember you must be candid about everything you believe to be true. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. Limits. or agency for which it has been prepared. and Rebuttals If there have been any constraints of time. attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case. A case example was discussed in Chapter 3 (“First Principles”) of this volume. SECOND EDITION the following form: “If the allegations are true. including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. money. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording. then . some are not. Whichever approach you actually take in your written report. it would be a weakness not to acknowledge these factors candidly.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data. asking for the addition of new material not supplied to you earlier.. to alter or misrepresent facts in the database. and shortening the report by aggressive editing. Postreport Negotiations After your report is finished and has been sent to the attorney. Some requested alterations are fully ethical. Constraints. on the contrary..100 THE PSYCHIATRIST AS EXPERT WITNESS. There is no absolute guideline for this procedure. Some attorneys suggest that including points relevant to the other side of the case enhances your credibility and suggests greater objectivity. which make for a stronger report.. then . summarizing. or data (such as inadmissible material. A challenging gray zone is negotiating about wording. then . judge. these should be recorded.
4.Writing to and for the Legal System 101 in adjusting wording as long as the substance of your opinion is not changed thereby. 8. intensity (likely. . and effect of emotional injuries—three common problem areas. 2. Resnick’s outline for a typical criminal report. The Criminal Report: An Example The following is Dr. 11. 17. very likely. 5. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. 7. 15. extremely likely). 6. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case. The Experience Factor This chapter alone cannot prepare you fully for forensic report writing. 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. 14. but it may get you started. 13. Be careful about changing wording concerning issues of causation. 9. You also may ask to see a senior colleague’s report under an agreement of confidentiality. 3. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. 12. 10. 16.1 1.
3rd Edition. Edited by Weiner IB. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 21. Guilford Press. THE PSYCHIATRIST AS EXPERT WITNESS. 1987. Falmouth. 1986 Melton GB. in Handbook of Forensic Psychology. Hess AK. 20. 24. report writing and expert testimony. SEAK. New York. Wiley. 23. Am J Psychiatry 143:164–169. 19. in Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. pp 511–528 .102 18. 22. 25. Petrilla J. 2007. New York. MA. pp 577–605 Weiner IB: Writing forensic reports. 2002 Hoffman BF: How to write a psychiatric report for litigation following a personal injury. et al (eds): Consultation. Poythress NG. 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.
and we drafted an announcement. to connote the Harvard connection). such an affiliation would mean that we would be able to say to any attorney who called us. a letterhead.” The ability to say yes to all comers seemed like a good idea at the time. In the late 1970s.) 103 . “Yes! We (or the corporation) will take your case. (I believe this excluded only admiralty practice and the law of the sea. and inefficacies. heard of. In this chapter. the path to success in effectively and ethically developing and marketing a forensic practice is fraught with many false steps. We will let you know shortly which of our directors will be working with you. or could find in the Yellow Pages under every imaginable category that might have had some psychiatric component. We sent this announcement to every attorney we had ever worked with. two residency classmates and I realized that we were all getting into forensic work and decided to form a group or corporation. I describe successful strategies for developing and marketing a forensic practice as well as means of avoiding some common pitfalls. We retained an industrial designer to help create a logo (highlighting crimson.CHAPTER 9 Developing and Marketing a Forensic Practice HOW TO GET started in forensic work is a common preoccupation among novice expert witnesses. embarrassments. Unfortunately. In addition to the (largely fantasied) corporate benefits we dreamed we would derive. and a typeface for our official stationery.
for example. clinicians) led to forensic referrals: word of mouth. 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.. and pride and confidence in your work versus hired gun certainty or grandiosity. and unspecialize. write. the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy. thought. speak. Based on this reasoning. The balance must be struck between dualities such as generating word of mouth versus hucksterism. inform. The Key Approach As time went on. that is. an expert’s marketing strategy shifts to generating favorable word of mouth. Ordinary advertising in Lawyers’ Weekly. commercialized hustling for business—or the appearance thereof. is suspect and not reliable as an approach (see also Chapter 4. list. SECOND EDITION All this effort did nothing. opportunistic. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly. Most recipients almost certainly awarded our announcement the coveted circular file disposition. it became absolutely clear that only one reliable mechanism among attorneys (and for that matter. Support for this theory came from Harvey Research in 1994. and expense resembled our own responses to offers that come in the mail to sell us insurance. . The problem with some forms of getting the word out is that you may not know how a particular listing is regarded within the legal field. word of mouth). We received a few form announcements from two or three firms about their offerings. sharing useful information versus being pushy.104 THE PSYCHIATRIST AS EXPERT WITNESS. The Delicate Balance In all approaches to marketing. which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i. “Types of Typical Cases.e.” in this volume). but the net effect for all this time.
If you are moving into a new town. or use it in some other appropriate way. Describe those services you can authentically offer. 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. you may wish to send a short. 3) attorneys. including listing services you are not truly expert in. it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. Opposing attorneys. First. Some experts replace the announcement with a minibrochure: a single. the announcement should display the professionalism that you plan to bring to the work. Attorneys whom you can inform include your own attorney. judges may need your services. too little time.Developing and Marketing a Forensic Practice 105 Announce If the circumstances call for an announcement (which is not common). 2) your forensic peer group. informative. or other reasons. and 4) judges. will see you in action in deposition or trial. Serving as a guardian ad litem (GAL. Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group. Finally. they may turn away a case because of a conflict of interest. Thus. Avoid any hype. then reporting to the court. previous associations with the attorneys on the other side. and lawyer neighbors and friends who might pass your name along. hand it out at a lecture. in effect. . Among other roles. 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. trifold sheet of fine paper with a brief description of the expert and the services. and send it to attorneys and clinicians. a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. of course. and factual. such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern. the GAL may do a preliminary survey of the psychiatric aspects of a case. Alumni bulletins and class reunions are also opportunities to get the word out. they may think of you at that point. Although your forensic peers may seem to be your competition. If you inform your peer groups about your availability. polite letter informing local judges of your availability for forensic services. they will be useful to you in several ways. it should be tasteful. For your clinical peers. if you have one.
One reference. which are often seeking a stable of experts to comment on medicolegal stories of the moment. review. no one will show. Become active in your district branch legislative committees and processes. however. both of whom may be potential referral sources. but the wounds of experience are probably and ultimately the best teacher. You will be exposed to attorneys and legislators. Your podium demeanor may convey at least a little about your expected performance on the witness stand. try to become involved in local media such as call-in shows. SECOND EDITION List Listings can be effective as well. these publications may be explored. such as hospital grand rounds. the topics of which appear on the screens of attorneys’ computer searches. such as clinicians and lawyers. ambush journalism. or established continuing medical education programs. Although it is useful exposure and a valuable resource to write an analysis. the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1). departmental conferences. In my opinion. 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. many referrals to psychiatrists come from publications. Beat the Press (2). . 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. or commentary and have it published. and similar humiliations. this skill is acquired.106 THE PSYCHIATRIST AS EXPERT WITNESS. Admittedly. Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services. Instead. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. may be helpful in dealing with the media. Finally. sign up as an entry in an existing lecture series. The APA Public Affairs Office provides some guidance in dealing with the media. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever. Write In our computerized modern age. and media exposure may open you to crank calls.
and your course as hired gun may be marked. wherein you follow the ancient maxim. No case too small. some broker organizations guarantee your opinion. no matter how slight the issue. modesty.” This is a losing strategy.Developing and Marketing a Forensic Practice 107 Unspecialize For the novice expert. Consider taking on some pro bono work as well. as it were—but the Web site is perhaps the most explicit. a point that cannot be overemphasized. and interest. some critical considerations are the following: 1. 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. Do not bend the truth to satisfy the attorney. certifica- . including this one. 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. even at the outset. trivial cases allow you to be observed in action by potential employers. If you decide to use a Web site. but you will obtain valuable exposure. place in the profession. Even minor. widely publicized mass murders. It does not matter if the case is trivial or small potatoes. based on your fine performance at the deposition. integrity must be your watchword. Conservatively stating your incontrovertible credentials (actual appointments. 2. Beware of making or seeming to make extravagant claims for your knowledge. skills. What About Web Sites? In the modern era the use of Web sites has increased for all professions. the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity. In the same vein. by definition. 3. training. and other aggrandizing statements that are. Have the site professionally designed with attention to taste. In fact. Begin your career by unspecializing. extremely public. It may then take you years of work to unblemish your reputation. Be extremely careful about posting your qualifications. your forensic examinations and your first oral and written reports must be meticulous and carefully crafted. I will work only on high-profile. You will derive no income. From the absolute onset of your career. one turn to the Dark Side of the Force.
Building a practice on word of mouth is slow. specific required expertise). but its importance cannot be overstated: return telephone calls promptly. recall the value of brokering. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. but no other method is as reliable. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness. but I will take it upon myself to find somebody good who can.108 THE PSYCHIATRIST AS EXPERT WITNESS. Remember to thank your referral sources. whereby you would refer someone only to a practitioner whom you would trust treating a member of your family. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. and effective. Return telephone calls are the easiest marketing device and one of the most effective. you are also revealing yourself as a good first stop on the search for a good expert. including attorneys and fellow clinicians. sound. 2002 2. In analogy with clinical referrals. You are saying to the calling attorney. Sadoff RL. SECOND EDITION tions. UT. publications.” Although you are feeding the competition. Guyant A: Beat the Press. Dattilio FM.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”). Additional Pointers The issue may seem trivial. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. choose only those experts whom you would be confident to have on your side if you were being sued for something. 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. References 1. J Psychiatry Law 31:5–19. American Book Business Press. . conflict. for referrals. at times trying. Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. and demanding of patience. but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. Finally. “I can’t take this case (because of time. 2003 Fulton S. Salt Lake City. etc.
CO. Massachusetts. these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. Inc. Tageh Press. 1997 Feder HA: Succeeding as an Expert Witness.. I disclose that I have lectured for SEAK numerous times over the years. out of Falmouth. WW Norton. . Glenwood Springs. 1991 Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK. New York.Developing and Marketing a Forensic Practice 109 Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide.
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or interviews. M. I address some tips and strategies for the expert who is inexperienced in traveling to cases. examinations. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. Simon. mockery.D. As always.. 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. The author is indebted to Robert I. M. 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. this chapter will be too obvious and not relevant to your needs.D. 111 .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. 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. William Reid. seasoned travelers may skip the chapter entirely.. and opprobrium. In this chapter.
and your colleagues. the Internet. Some General Recommendations Travel Information Travel guides are available everywhere.112 THE PSYCHIATRIST AS EXPERT WITNESS. 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. to ensure that it still fits. Alternatively. and return that day or the following one. travel agents. the emerging online travel services (Expedia and the like) may prove useful. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. stay overnight in a hotel or similar setting. 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. 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. Consult with significant others for their opinions if needed. Another useful reference is Jet Smart (2). These services can book flights. testify or interview the next day. 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. especially in flight. on rare occasion. Opt for crushproof fabrics and materials whenever possible. and hotels directly and save you much time and stress on the telephone or online. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance. although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women. 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 . 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. For cases that involve land travel. cars. and general information can be obtained from books. looks professional. Try on everything before you pack it. Still other guides are provided in the suggested readings at the end of this chapter. you may make the appropriate adjustments. matches. especially if you have not worn it for a while. and one pair of shoes. polished shoes for men and women). the process takes even longer.
fortunately. For example. is addressed nowhere in the forensic literature). 1 day at your day rate. and for the regular three meals. a useful principle is to avoid double billing in any form. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e. Seek equitable division of costs for multiple-case trips. which are. to pack for 2 or 3 days of travel and bring most of the key documents in a case along for review while remaining in full carry-on mode.The Expert on the Road: Some Travel Tips for Testifying Away 113 your connecting flight if you are late. If the trial runs longer than a day or so. If you review a different case on the way back. The Ethics of Billing Bill strictly according to your fee agreement. Until data emerge. rare but extremely stressful when they do occur. then. for one or two telephone calls per day to the office to check on things. 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. My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. Avoid checking baggage if you can. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. if you are flying to a case and use air travel time to review the case.g. for one telephone call to the family. or 2-hour long-distance calls to your paramour. massages. Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. for example. you may bill for that time but not for the ticket because the first case paid the whole trip already. do not bill separately for that work because you are already being paid a day rate.. It is possible. Separate business from personal comfort. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms. do not bill for sleep (you do it anyway). the literature is relatively unhelpful (the issue of double billing. You have enough to worry about . because some law firms are slow to reimburse hotel and plane expenses). but not alcoholic beverages. It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation. you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally. in-room movies.
Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions. stain-remover sticks that do not contain toxic petrochemicals. light flashlight for power outages and searching under beds for lost items. and similar medications. antacids. It is definitely a basic principle for assembling your kit. Current travel restrictions have shifted the allocation of liquids. and cleaning. remedy. a small. Dopp kit. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised. SECOND EDITION without having your materials for the case arrive in Chicago while you are in Cleveland. The Kit Whether you call it a travel kit. not to mention the current airline custom of charging extra. you may opt to wear the suit or outfit on the plane and guard it in transit. and string. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. do not skimp or economize on the roll-along suitcase. In general. a small roll of duct tape. even under the seat in some cases. safety pins in various sizes. Alternatively. Other useful miscellaneous items include adhesive bandages of various sizes and types. and creams to quart-size plastic bags. and rubber bands. such as a variety of buttons and threads to match your clothes. but you may wish to experiment with a friend’s suitcase. . extra shoelaces. and extra combs. multifunction “pharmacy” also should be included. with a little applied topology. makeup bag. Wear your workout or running shoes on the plane. Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. the principle of multiple function is one of the basics of a dynamic understanding of mental life. and pack the rest of the gear. extra eyeglasses or contacts if you wear them. or toiletries case. it is indispensable to your successful travel ventures. decongestants. 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.114 THE PSYCHIATRIST AS EXPERT WITNESS. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies. these roll-alongs often fit either in the overhead compartment or. lotions. These should include sewing items. Remember also that your kit should contain items that permit repair. A small. What you take should have similar versatility. In addition. In psychoanalytic theory. eyeglass screwdrivers and replacement screws. which may also be prepacked. preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such.
If you have a disability.” this discussion will be helpful. The traveling expert is sometimes torn between staying at a cold. Drink water steadily to avoid travel dehydration. First. and special arrangements. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely.The Expert on the Road: Some Travel Tips for Testifying Away 115 If you travel with a laptop computer. procedures. Seriously consider avoiding airline food entirely. Almost all modern hotels in the United States have smoke detectors. I recommend the hotel or motel for several reasons. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. as well as extra disks and the instruction manual if not on the hard drive already. on very dry flights. Second.” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. in theory. because someone else is paying your way to the location. try breathing through a moistened towel for short periods. Emergency Items Neurotic fears can certainly flower when you travel. although occasionally. I carry a compact “smoke hood. call the airline early to check on facilities. Secrets of Staying If you are unfamiliar with the expert art of “fly in. fails). institutional hotel or motel and cadging free lodging with friends or relatives in the area. for you to get out of the toxic smoke and gases to safety. testify. You breathe through a filter that lasts long enough. it is more professional to meet with your attorney the night before the . fly out. or order special low-fat meals. but you can buy your own compact version. often hooked to a travel alarm clock. remember to carry light extension cords and voltage adapters. The latter appears at first glance both socially desirable and economical. experienced travelers can skip this discussion. you are undistracted by social obligations and family strife or background noise. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. but some precautions seem sensible. This item is available through a number of catalogs. Besides a small flashlight.
an essential part of effective testimony. SECOND EDITION trial in a hotel room or conference room. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A . My first move on entering a hotel room. wring it out thoroughly so that it doesn’t drip. 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. 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.116 THE PSYCHIATRIST AS EXPERT WITNESS. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. after all. rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. 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. is to make a beeline to adjust the hotel’s alarm clock or clock radio. and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. and headachy on the stand. have your martini on the airplane home after it is all over. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid. back up the call with your travel alarm. or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. this is. hotels provide irons. a business trip. Remoisten it as needed. After the trial. Don’t forget to set the room thermostat to your accustomed household temperature. of course.M. . My second move often is to arrange a do-it-yourself humidification of the room. the air is invariably dry in most hotels. Experimenting with culinary exotica is asking for a case of turista at worst. if desired. but not all. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review. If a paper clip or safety pin does not suspend the cloth or towel well. you are free to visit friends and family at your own discretion. congested. Whether the room’s air system is heating in winter or cooling in summer. Secrets of Eating In traveling to court. a situation that can leave you hoarse. A simple but effective method is to soak a washcloth or hand towel in cold water. obviously you should eat lightly and stick to what is familiar to you. nausea on the witness stand also may be misinterpreted. after I put down my luggage. It is probably safest to avoid all alcohol during the trip before testimony. Some.
After court. Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place. usually described in catalogs as “sound soothers. spending some time in direct sunlight may be helpful in adjusting your biologic clock. and similar relaxants. some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning. breathing techniques.. including hangovers. What to Take to Court Courthouses are notably lacking in amenities.M. This term refers to sounds containing all frequencies. as noted. I recommend it. the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead. or even a different time zone.” sleep sound machines. the chatter of housekeeping staff just outside your door) is white noise. Many travelers find it helpful to block out morning sunlight with the drapes. Examples include prescription medications that you need during the course of a long day. When you are up and awake. hot baths. just as white light contains all color wavelengths. of course. and with sleeping pills. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. stain .The Expert on the Road: Some Travel Tips for Testifying Away 117 At court during the lunch break. by using either alcohol or sleeping pills (barbiturates. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid. 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. or similar terms. plan your trip to allow time for recovery from jet lag. benzodiazepines. without aftereffects. but all the data are not in. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects. Far better results accrue from sleep hygiene maneuvers. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A . Catalogs sell portable battery-operated white-noise generators. also eat lightly. so you may have to carry some supplies in your pocket or purse. either by closing them completely or fastening gaping fabrics with safety pins. Ordinary AM radio static and the sound of surf are two examples of white noise. or others) at bedtime. These have ill effects. actual memory loss can occur—the last thing you need. When possible. you can have a serious meal without ill effect.
118 THE PSYCHIATRIST AS EXPERT WITNESS. References 1. Berkeley. 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. 1996 . WA. Revised. Gilford J: The Packing Book: Secrets of the Carry-On Traveler. cough drops.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Santa Barbara. mints. I hope that these tips make your travel easier and less surprising. and a headache remedy for the obvious problem. 1998 Gutheil TG. 1994 (An excellent guide to what to take and how to pack it. Flying Cloud Publishing. 2003 2. 3. with the emphasis on safety and security issues.) Gutheil TG. James E: The Secrets of Simple Packing (VHS videotape). J Am Acad Psychiatry Law 29:202– 206. SECOND EDITION removal. Ten Speed Press. 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references. Villard. New York. I welcome your suggestions and favorite travel tips. Although some of the pointers in this chapter probably state the obvious. Psychiatric Annals 33:302–306. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses.) Savage P: The Safe Travel Book. CA. Miller PM: Expert witness billing practices revisited: a pilot study of further data. sample wardrobes and general travel pointers included as well. San Francisco. Seattle. Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential.: Expert witness travel dilemmas: a pilot study of billing practices. 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes. Magellan’s International. 2001 Simon RI. or refreshment. Commons ML. Celestial Arts Publishing. 1988 (Incredibly detailed. Jossey-Bass. J Am Acad Psychiatry Law 26:21–26. 5. or throat lozenges. CA. Berkeley.) St. et al. CA. Slater FE. Gutheil TG: The forensic expert practicing on the road: new hazards along the way. 4. Commons ML.
(American Psychiatric Publishing 2002). On the other hand. to require our services in increasing numbers. or have taken too much for granted about your background and experience in any portion of this text. the reader. As always. If I have made too many assumptions about you. or render this text more useful. Simon. effective. the courts will continue. I welcome comments and suggestions from readers to correct.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. consider first reading the companion volume. which I cowrote with Robert I. if you wish to take your work to the next level. Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. the more we serve this valuable and necessary function. not only in performing your task successfully but also in helping you avoid some of the pitfalls of beginning a new career sideline. Other suggested readings are supplied with each reference list and in Appendix 4 (“Suggested Readings and Web Sites”).D. decry the expert witness function and voice arguments for its abolition. consider reviewing the successor volume to this one. That book may fill in some of the blanks. and helpful testimony. from all evidence. expand. The Psychiatrist in Court: A Survival Guide. 119 . Although some forces in society. M. including our medical colleagues. The better we are at meeting the courts’ needs with ethical.
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supplied for consideration.e. I read it or have the examinee read it at the start of the interview and answer questions. is likely to be competent to consent to the interview).Appendix 1 Consent Form for Forensic Examination AFTER PROLONGED ambivalence about use of a consent form I have begun to use the form on the following pages.. clarification that the forensic examination is not the practice of medicine. 121 . The main points about the form are the use of basic language. and the examinee’s attorney’s attestation that the examinee understands the form (i.
Because I am being interviewed in a legal matter. that he is not acting as my physician or psychiatrist in doing this interview or interviews. 3. 4.” or “update” interviews of me by Dr. Gutheil will explain or has explained to me. the person who has signed at the bottom of this letter. Gutheil’s questions. however. Gutheil may write that down for the record. in spoken depositions (where lawyers ask him questions). (“Dr. I agree to be interviewed. Gutheil”) I. nor will he suggest any treatments to me or for me. Gutheil. Dr. Gutheil.D. Gutheil may talk or write about what we discuss and what he thinks about it in written reports. I understand and agree that Dr. The examination will be one or more personal interviews. Gutheil is a physician and a psychiatrist. or have no effect on my case that I can see. Gutheil’s written report or out-loud statements for court may help my case. During this interview or interviews I will be asked a number of questions about myself. hurt my case. Gutheil will not give me any medical or psychiatric treatment. Gutheil’s report(s) may be given to attorneys and/or judges connected with my case as the law allows. the following: 1. I understand that Dr. in connection with my legal case. I understand that I can take breaks if I want to at any time during Dr. and I understand that no one can know which one it will be in advance. I understand and agree to additional repeat. SECOND EDITION Consent for Forensic Examination by Thomas G. 2. Gutheil will explain or has explained to me and I understand that I do not have to answer every one of Dr. I agree to give up my rights to have Dr. . 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. Dr. and I understand. Gutheil keep secret what I tell him. but if I refuse to give an answer or some answers.122 THE PSYCHIATRIST AS EXPERT WITNESS. Dr. 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. and I understand they will be part of the same examination and will follow all the above rules. This means that Dr. Dr. . Thomas Gutheil. I also understand that I am not his patient in connection with or because of this interview or interviews. I understand. if needed. M. I understand and agree that Dr. “follow-up. Gutheil’s interview or interviews. Dr. most of which will be very personal. Gutheil will explain or has explained to me and I understand that Dr. or out loud in open court in a trial. agree to have an examination by Dr.
I certify that I have answered any questions my client asked about the procedure. 20 . he/she appears competent to understand it. a court officer. Dr.Appendix 1: Consent Form for Forensic Examination 123 5. Signed. that individual is. Attorney for examinee Print name Date day of . Gutheil’s retaining attorney. of course. Any report in relation to my case will not go to me but will go directly to my attorney. free to show it to me. or the court as provided by law. to my assessment. Signed this PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and.
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including portal-to-portal local travel (c).D. with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition. in addition. and $ per hour for trial. $ for depositions. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours. Gutheil”) 1. at a rate of $ per hour plus expenses. (d) 125 . Gutheil shall be reimbursed for all time spent on the case. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned. Standard Letter of Agreement by Thomas G. (“Dr. Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer. Dr. the radical revision presented here has evolved from that in the first edition for the same reasons. M. rescheduling is at mutual convenience. and the same due for cancellations that occur less than 72 hours in advance.Appendix 2 Standard Fee Agreement THE EXAMPLE of a standard fee agreement that follows is annotated by lowercase letters in parentheses (annotations are explained at the end of the text for this agreement). Gutheil.
For out-of-state travel. Gutheil will be unavailable for testimony in person during the month of August (f ). and as a condition for its specific to this travel is exbeing undertaken. Gutheil. the retaining attorney shall ensure in advance that any licensing problems or conflicts about expert function in that state have been satisfactorily resolved. 3. Overdue accounts may accrue interest at 6% per annum.126 THE PSYCHIATRIST AS EXPERT WITNESS. Gutheil by name (h). 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). the rate of payment shall be $ and $ per half-day (4 hours or fraction thereof ) plus all expenses. and examinations as discovery rules permit. A nonrefundable replenishable retainer (o) of $ is required before commencement of work on the case. a retainer of $ pected 3 business days in advance. For out-of-state evaluations or testimony. The retaining attorney understands that my forensic work is not the practice of medicine. materials. Before such travel is undertaken. Signature below indicates agreement with all (r) these terms. (s) Note: Please send all case materials to (address) Date . 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). any existing balance shall also have been paid 3 business days before departure (e). Payment in a timely (g) manner. prorated (k). The retaining attorney is expected to furnish all relevant documents and materials as they are obtained and to provide all requested documents. Dr. (q) 6. Please note that because of vacation scheduling. Gutheil’s FID# is . made out to Dr. Signed. irrespective of case outcome (j) or defaulted appearances. 5. 4. including travel by first-class conveyance and appropriate lodging if needed. as an advance against which expenses are billed (p). SECOND EDITION per day 2. Failure to comply may void this agreement except for duties of confidentiality (l). please return one copy to Dr. is the sole responsibility of the retaining attorney or insurer (i). leaving the retaining attorney or insurer individually liable for any unpaid balance (m). Dr.
Some experts charge differing rates. as it ethically should be. can constitute a bias. others the same. 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). i. If you do withdraw.” d. f. thus. j. for review. dunned for appropriately earned fees. the “clock” starts when you leave your home or office for court and stops when you return to office or home. Your fee is. For unexplained reasons. that does not mean you should not be paid for the work already done. n. Because you will be investing a fair amount in the travel costs. . To cut through nit-picking. “Consideration” and “agreeing” are trigger words that signal to attorneys. “portal-to-portal. Working for the client. You must be free to withdraw from the case if the contract is breached.Appendix 2: Standard Fee Agreement 127 Annotations a. If you are the sole proprietor. or a member of a corporation or group practice. h. k. it saves everyone time and heartache if you spell it out. If you know when your vacation is. Some attorneys. This is a standard rate of interest on overdue accounts and an incentive for timely payment. A case decision that goes against the side retaining you is not grounds for nonpayment. attorneys are sometimes slow to reimburse travel expenses for interview. will throw up their hands in mock exasperation and say. take a videotaped deposition. noncontingent. you may decide to withdraw. that this is a formal contract. b. based on their training. Every agreement must have an exit clause such as this one. deposition. “You’re right. c. moreover. e. this statement makes the attorney agree to that possibility. You are initially retained as a consultant. this clause makes that explicit. g. make that clear so that you don’t waste a lot of time swapping checks between payees.” 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. l. or even retain another expert. I recommend asking for this secondary retainer before travel. deposition. or trial. but what can I do? That client just won’t honor his or her obligations. or trial travel. You have the right to request timely payment to prevent excessive backbalance buildup. This information frees up the attorney to ask for continuance or rescheduling. m. If the retaining party is relentlessly slow. Doc.
You are here agreeing to accept signature from a different attorney or a paralegal. Moreover. these events do not weaken the contractual ties with the firm. ask for their retainer back. parallel with the forensic consent form in Appendix 1. others ask for a second retainer (see also Appendix 3 in this volume). for example. SECOND EDITION o. The wording here. Such attorneys may pay the retainer. legal. making you ineligible for participation with the other side. You have been sandbagged. s. Making the retainer nonrefundable tends to eliminate such shenanigans. give you no work to do. This paragraph does two things: it requires that the attorney agree not to withhold relevant material (which. some experts simply submit additional invoices. at no cost to the attorney but at lost time and possible income to you. 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. because you did no work. in some contexts expert testimony is considered to be the practice of medicine despite clear clinical. On rare occasions. p. q. alas. . after settling the case. if the attorney is out of the country. or has left the firm. The retainer is not only a means of establishing the contract but also an actual advance against expenses. identifies the attorney’s understanding that this is not the case. has handed the case to another attorney.128 THE PSYCHIATRIST AS EXPERT WITNESS. some do) and addresses the issue that in some states there are restrictions on out-of-state experts. “All” is a small word but one that prevents attorneys from selecting only some terms to agree with. and ethical incompatibilities. When this retainer is depleted. r. and.
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. STRASBURGER. 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. and report preparation. This retainer will constitute a credit balance until exhausted. Any credit balance remaining will be refunded upon the termination of my services. interviews with family members or other persons. consultation with counsel. if it appears that substantial services are yet to be rendered. Psychiatric services may include an initial consultation. M. I will charge an hourly rate of $ with an initial retainer of $ due upon execution of this letter of agreement. psychiatric interview or evaluation. If travel from my office is necessary to perform any of these services. review of records. I may require an additional retainer. Thereafter.Appendix 3 Detailed Fee Agreement THE FOLLOWING is an example of a colleague’s more detailed fee agreement. LARRY H.D. the hourly 129 .
setting forth the nature of the services rendered since the prior billing. M. Time spent in preparing for testimony shall be billed at the hourly rate specified above. the retainer discussed above. American Board of Psychiatry and Neurology Diplomate.D. court rule. messenger services. Missed appointments by clients or attorneys will be charged for unless 48-hour notice of cancellation is given. There shall be on deposit with me a retainer in the amount 5 working days prior to commencement of testimony. Please keep a copy of this letter for your records. no refund of the retainer deposit will be made. including secretarial service. etc. court order. It is further understood and agreed that should a decision be made to call me as a witness at any deposition or court proceeding. SECOND EDITION rates will apply to portal-to-portal travel time. American Board of Forensic Psychiatry AGREED AS TO FEE AND EXPENSE BASIS: Attorney Signature and Date: . Any excess over the retainer balance is due upon receipt. Nor shall such failure relieve your obligation to have on deposit. as prescribed by statute. I shall be given 2 weeks’ notice of deposition or trial in order to make adequate preparation. If noof $ tification of cancellation is made less than 2 working days before the scheduled deposition or trial. literature research. Larry H. I will send you a monthly statement. expert or otherwise. Strasburger. and all travel expenses will be reimbursed. Diplomate.130 THE PSYCHIATRIST AS EXPERT WITNESS. Sincerely. along with a listing of out-of-pocket expenses. photocopying. please so indicate by signing this letter and returning it to me with your check for the retainer. or agreement shall not relieve your obligation to pay my fees and expenses for time spent in testifying or preparing to testify. It is understood and agreed that you will pay all outof-pocket expenses in connection with this matter. long-distance telephone calls. It is further understood and agreed that failure of any other party or counsel in any litigation to pay expenses or witness fees. prior to my testimony. If the foregoing fee basis meets with your approval. All travel shall be by first-class conveyance. 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). postage. 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.
Appendix 4 Suggested Readings and Web Sites NOTE THAT SOME of the following suggested readings cover the expert witness’s role in general fields. Falmouth. Am J Psychiatry 159:1819–1825. SEAK. SEAK. provide at least some information useful for the psychiatric expert. 2003 Babitsky S. Babitsky S. MA. MA. Falmouth. SEAK. Falmouth. this has many useful tips on trial demeanor and related issues. Falmouth. MA. Inevitably. The Psychiatrist in Court: A Survival Guide. Falmouth. MA. SEAK. 1997 Babitsky S. Mangraviti JJ: The Biggest Mistakes Experts Make and How to Avoid Them. 2002 131 . Mangraviti JJ: How to Become a Dangerous Expert Witness. 2005 Babitsky S. Mangraviti JJ: Cross-Examination: The Complete Guide for Experts. 2002 Babitsky S. 1997 (Though aimed at attorneys. 2008 Ball D: Theater Tips and Strategies for Jury Trials. MA. SEAK. SEAK. as well as those found in the companion volume. their quality is variable.) Binder RL: Liability for the psychiatric expert witness. Mangraviti JJ: How to Excel During Cross-Examination: Techniques for Experts That Work. not just psychiatry. Mangraviti JJ: Depositions: The Complete Guide for Expert Witnesses. National Institute for Trial Advocacy. Mangraviti JJ: Writing and Defending Your Expert Report: The Step-by-Step Guide With Models. 2007 Babitsky S. however. Falmouth. South Bend. These sources are meant to supplement those provided at the ends of the chapters in this book. IN. All. MA.
McClure Company. et al: A pilot Rasch scaling of lawyers’ perceptions of expert bias. 3rd Edition. Horsham. Lippincott. Commons ML. 1908 (Purely for antiquarians and those interested in a classic from the last century. MA. Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. 1996 Rogers R (ed): Clinical Assessment of Malingering and Deception. 2006 Feder HA: Succeeding as an Expert Witness. PA. Washington. Analytic Press. American Psychiatric Publishing. Springer. 1995 Kwartner PP. Mulligan WG. Dattilio FM: Practical Approaches to Forensic Mental Health Testimony.) Quen JM: The Psychiatrist in the Courtroom: Selected Papers of Bernard L. 1994 Rabinoff MA. Baltimore. Danvers. 2005 Rosner R (ed): Principles and Practice of Forensic Psychiatry. New York. Covise LL. Williams & Wilkins. Oxford University Press. 2002 (This is designed as the successor book to the present one. useful for checking credentials. 2008 Rogers R. et al: Expert Witnesses: Direct and Cross Examination. CA.132 THE PSYCHIATRIST AS EXPERT WITNESS. Guilford Press. New York. Pennsylvania Bar Institute. at a more advanced level. LRP Publications. DC. J Am Acad Psychiatry Law 34:482–491. New York. pp 565– 588 McHale MJ. NJ. PA.) Gutheil TG. Mechanicsburg. Edited by Jackson R. New York. Glenwood Springs. 1997 Munsterberg H: On the Witness Stand: Essays on Psychology and Crime. in Learning Forensic Assessment. Holmes SP: The Forensic Expert’s Guide to Litigation: The Anatomy of a Lawsuit. 2001 Isele WP: Under Oath: Tips for Testifying. James Publishing. Shuman DW: Fundamentals of Forensic Practice: Mental Health and Criminal Law. 1993 Dattilio FM. Diamond. New York. Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness.) Gutheil TG. Wiley Law. Tageh Press. Routledge/Taylor & Francis. American Psychological Association. 2002 (Contains qualification and certification lists and criteria for many mental health disciplines. 2003 . Washington. New York. Boccaccini MT: Testifying in court: Evidence-based recommendations for expert witness testimony. 1991 Clifford RC: Qualifying and Attacking Expert Witnesses. Hillsdale. Santa Ana. LRP Publications. SECOND EDITION Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. J Am Acad Psychiatry Law 29:313–318. 1993 Gutheil TG. DC.) Dattilio FM. CO. MD. 2nd Edition. Adams KM. Sadoff RL: Mental Health Experts: Roles and Qualifications for Court. 2007. Simon RI. 2007 (Focuses specifically on the testimony phase of expert work.
Washington. American Bar Association. Anderson RM: Mastering Expert Testimony. Wiley. Beth Israel-Deaconess Medical Center. WW Norton.com: Web site of author’s colleague HJ Bursztajn. NJ. 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. articles. publishing a vast range of information and offering excellent training courses. All experts should join.Appendix 4: Suggested Readings and Web Sites 133 Siegert M. J Am Acad Psychiatry Law 35:346–349. the national forensic psychiatric organization. http://forensic-psych. Harvard Medical School.html: Another multiple resource site. MA. 2007 Tsushima WT. Section of Litigation. DC. http://tncrimlaw. MD. http://www. SEAK.org: Web site of the Program in Psychiatry and the Law. A compendium of sources. Gutheil TG.reidpsychiatry. http://pipatl. American Psychiatric Press. 2nd Edition. DC. with multiple resources. 2001 . Mahwah. Shuman D: Clinical Manual of Psychiatry and Law.com: A resource-rich site with articles. VA. 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. links. DC. and links.SEAK. DC.org: The main Web site for the American Academy of Psychiatry and the Law. Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. New York. American Psychiatric Press. and links. New York. Washington. Disclosure: This author is a founder. 2003 Simon RI. http://www. 2004 (Study guide available since 2006. Falmouth.) Simon RI.com/forensic/f_psych. and postings. 1993 Other Media http://www. Rons SN: Doctors and the Law: Defendants and Expert Witnesses. 1976 Zobel HB. American Psychiatric Press. Kochansky J: The Complete Psychiatric Examination (videotape). 1997 Younger I: The Art of Cross Examination. Washington. 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation. Lightfoot. discussions. Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence.com: A host of resources by two top attorneys. Erlbaum. Washington.aapl. Gaynor Publishing.
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Database This author’s term for the totality of material that the expert has reviewed to form the opinion. in the context of discovery. legal documents such as depositions and interrogatories. It is not derived from the facts of the specific case at hand. such as relatives or executors. Decedent The person related to the case who has died. usually derived from statutes. there is no generic “competence.” that is.. and so on. Competence The capacity or ability to deal with a certain task. Thus in a suicide malpractice case. Competence is decision-specific and usually based on criteria. the plaintiff is the (live) person bringing the suit. the practical and relevant definitions are provided. interview data. on mainframes) and may be used in attempts to impeach the expert at trial. it may consist of records and documents. the criteria for competence to make a will and for competence to stand trial are quite different. that is simply plugged in to the appropriate place. 135 . or tradition. Instead. for example. lab results.Glossary This listing of definitions of words outside common usage but useful to expert witnesses does not track the official legal dictionary definitions. it has been accepted in actual cases that validate its use. it is usually “court-tested. In reality the actual deposition is the transcript of the deposition. in which the witness. the person who committed suicide is the “plaintiff’s decedent.” Deposition Usually believed to be the actual ceremony. In case of ambiguity. case law. consult your retaining attorney. Boilerplate Standardized legal language. which will live on in perpetuity (i.” it is always “competence for what?” The criteria for the different competencies are often distinct.e. two or more lawyers. and a court reporter convene so that the opposing attorney can ask questions to be answered under oath by the witness.
. interrogatories.g. but this is the established term. thus decision maker rather than fact finder. but a psychiatrist. after the civil or criminal matter is set in motion.. in “trial by ambush” jurisdictions this step is skipped. Among experts the term may be loosely tossed around regarding experts who disagree with the speaker. investigating in the field for the court to determine the situation leading to the proceeding (e. since the goal of the process appears actually to be a decision. An IME in psychiatry usually refers to the interview phase of the expert’s data gathering. challenging the party moving for a particular result. Novice experts see this as a misnomer. of opprobrium for the venal or corrupt expert who “sells testimony” instead of time (i. and various motions accomplish some of this phase. . if so. may be used as well.g. The GAL may be thought of as a kind of utility infielder for the court. and the like. Fact finder Practically speaking. less ordinary procedures might include covert surveillance of a suspected malingerer.” Guardian ad litem (GAL) The lit in litem is the same as the one in litigation. says what the attorney wants said rather than objective truth).. usually exchanged between opposing attorneys to alert them to your projected opinion. Depositions. use of a private investigator to obtain information. in which information is gathered by the attorneys in order to prepare the case. or an attorney-psychiatrist team. The role may include representing an unrepresented party (e. disability. borrowed from western and noir fiction and film. the judge(s) and/or jury.e. to visit a nursing home where resides a person whose competence is being challenged) and other duties. IME (independent medical examination) An important part of the discovery process in malpractice. “Hired gun” A term. Finding See “Opinion.” Discovery That early phase of litigation. SECOND EDITION Disclosure (or “expert disclosure”) The attorney’s summary of what you will be testifying about. See also “Trial by ambush. the fetus in an abortion decision). The IME may be resisted by some attorneys. this limitation constrains the data gathering and the conclusions that may be drawn from the database.136 THE PSYCHIATRIST AS EXPERT WITNESS. The GAL is usually an attorney. and other medical contexts not limited to psychiatry.
The expert offers an opinion derived from the database and training and experience. Like other sources of bias. and the like. the expert. governed by legal criteria that vary by jurisdiction. Interrogatories A set of formal. the witnesses are to testify in court only with testimony that they can swear to. tell the narrow truth. the “bottom line. One of the most challenging assessments in all of forensic psychiatry. 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. experts should review these carefully for accuracy as to their opinions. sometimes without even informing.” of the expert’s efforts. the court makes the finding that defines the outcome of the case. disliked by almost all parties in a case as well as the general public. when confusion sets in. See also “Standard of care. falling below the standard of care in the care rendered in the instant case. There are several . Oath A statement under penalties of perjury at the outset of testimony that the witness promises to tell the truth. the oath is a place of safety to which. the expert can retreat when in doubt about what is going on or where the inquiry is going. its influence should be resisted by the expert. The “seduction” may involve flattery. promises of much future work if the opinion in the present case is favorable. and widely misunderstood by many of those. In a practical sense.” 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. because variations from these answers at trial will be used actively in attempted impeachment. the whole truth is often supplanted by “the admissible truth. Of course. and let the chips fall where they may. Negligence In a medicolegal context. the insanity evaluation is retrospective. In addition. but without actually retaining. these are prepared jointly by attorney and expert. Opinion The final phase.” In practical terms. retreat to the oath. and nothing but the truth. “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. elaborate dinners and entertainments. the whole truth.Glossary 137 Insanity The legal concept whereby a person who did an otherwise criminal act is yet nonculpable because of criteria-specific impairments caused by mental illness or organicity.
hearings. See Gutheil et al. which broadly applies to information that should not be shared with others in many contexts.” which the expert must also know. administrative law procedures.” “reasonable medical (or psychological) probability. and the like. The expert should be familiar with the relevant local standard and its definition.” “51% certainty. thus an attorney or an expert might perform a relevant duty for free. on the theory that this might inappropriately influence or contaminate the witness’s future testimony. 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. “get the money up front. Unlike confidentiality. the origin of the frequently invoked mantra. a few find ways not to pay you what they owe. Appendix 4.” in suggested readings. but they cannot by themselves reform the exploitative personality. . SECOND EDITION variations on this ploy. “Stiffing” (the expert) Failure by an attorney or (less likely) an insurer to pay an expert a duly earned fee.” “reasonable psychological certainty.” An expert testifying about a case must be familiar with the relevant standard. Standard of care The benchmark or yardstick by which professional performance is measured to determine negligence. privilege is narrowly construed as applying in legal or quasi-legal contexts only. 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. Several jurisdictional variants include “more likely than not. this term usually refers to service without payment. the standard is usually national but may be local—the “locality rule. The fee agreements in Appendixes 2 and 3 will be of some help to you if things go sour in the fee department. particularly experts. 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. Sequester The separation of witnesses. 2001: “The Phantom Expert.” and so on.138 THE PSYCHIATRIST AS EXPERT WITNESS. by excluding them from the courtroom.” Though most attorneys are responsible. Pro bono Short for pro bono publico (for the public’s good).
are sometimes referred to as “third-party cases. and expert disclosures (see “Disclosure”) inform the other side in advance. usually based on criteria. competent. nor that the plaintiff’s preexisting condition should decrease the claim for damages caused by the defendant. guilty. Most common example: the opposing attorney stipulates (does not contest) the witness’s qualifications as an expert. The expert proffers an opinion. discovery proceedings such as interrogatories. depositions. 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). a blow that would ordinarily not be expected to cause harm.Glossary 139 Stipulate To concede or agree to a challenged issue. Tarasoff-type cases A shorthand way to refer to cases (named after an important California case. The expert has control only over those accepted or rejected. Tarasoff v. after review. but the fact finder renders the finding that embodies the “ultimate issue. insane. Thin skull A shorthand way of referring to the principle that defendants must take the plaintiffs as they find them. such as whether a witness should be accepted as an expert for the court. these cases. Because the usual duty of clinicians is to the patient alone.” or “duty to warn third-party cases. Ultimate issue The final outcome of the legal process: negligent. this move prevents the jury from hearing an extensive curriculum vitae–full of qualifications by the opposing expert. etc. The defendant cannot claim absence of fault from not knowing about the plaintiff ’s vulnerability. not those that come in for review. (See also “Opinion. This rate should be seen as a rough guide. Among other goals such as saving time. The image is that of a defendant giving a trivial blow to the head of the plaintiff.” Jurisdictions vary widely as to the applicability of this principle. which involve a victim in addition to the treater and patient.” Experts should refrain from stating the ultimate issue in their testimony. but the plaintiff has a thin or “eggshell” skull and is severely injured. In the majority of situations. “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. accepted as meritorious versus those rejected as invalid. not as a valid method of determining one’s standards of acceptance. Turndown rate The ratio of cases that are.”) .
work product occupies a special category of privilege and is usually not discoverable.140 THE PSYCHIATRIST AS EXPERT WITNESS. There are a number of possible causes. discursive. Work product A designation of privacy for material that is part of the attorney’s trial strategy. Waffling An expert’s rambling. This may apply to certain communications between expert and retaining attorney. See Gutheil 2007. to say” but more relevantly. SECOND EDITION Voir dire An expression from the French. . the purpose is to allow preparation of cross-examination or rebuttal. evasive testimony designed to avoid answering a question directly or at all. Chapter 4 (reference 11). “The Problem of Evasive Testimony” in Suggested Readings. 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. literally “to see. in the present context.
3–4 Advertising. 17 problems of loyalty and identification. 105–106 loyalty to retaining attorney. 113 Bipolar disorder. 37 Alterations ethical. 4–5. 105 Assumptions. 16 meeting with before deposition. 37–38 Ambivalence. 25 Beat the Press (Fulton and Guyant). 9 nonsexual seduction. 30–32 misunderstanding of clinical issues. 112 first class. 4. 15 Agency relationship. 82 negotiations with retaining attorney. 59–60 Advances minimum fee. 19 hindsight bias. 45. 4.Index Accessibility airplanes. 106 American Psychiatric Association (APA). consulting with retaining attorney during. ethical model. 65 fighting at depositions. use of. 117 “Alibi” issues. See Ethics informing of availability as forensic expert. 105–106 Analogies and metaphors. 77 Bias. 23–24 Air travel. 100 of expert opinion. 80 Body language. 52. Dress and appearance Attorneys communication with opposing attorneys. 82–83 Announcement of forensic practice. 115 courtroom. 61 retainers. 32. 16–18. 116 Alcoholic beverages. 115 meals. 47–48 depositions. 49. 70 “Attorneys’ Guide to Experts. See Clothing. xiii. apparent. 68–69 Attire at trial. 68 honesty of.” 106 Audiotaped interviews. 121 American Academy of Psychiatry and the Law (AAPL). 49. 16 treater bias. 115 airline guides. 8. 74 Accuracy. 14 Adversarial context. 87–88 Admissions. 104 Advocate for truth. 74. 106 Beepers at trial. 100–101 Alternative scenarios. 105–106 American Board of Forensic Examiners. See also Demeanor 141 . 60 Addressing judge at end of testimony. 63 Blackboard illustrations at trial. 62 needed for forensic functioning. 52. 26–28. 115 Alarm clocks. 24–29 social relationships with. 78. 44. 7. 18 Billable time. 4–5. 16 work product privilege. 35 Background of expert. 70 merit of retaining attorney. 82 of reports.
85–86 Brokerage organizations for expert witnesses. letters to. review of. 99–100 Consent Form for Forensic Examination. 82 Breaks and recesses depositions. 38 Conflict of interest. 5. 83 breaks and recesses during. See also Video depositions gazing into the lens. 86 Borderline personality disorder (BPD). 74 Code language between attorney and expert. 61 trial. 70–71. 137 report. 29–40 documents. 77 Change of opinion. 85–86 code language between attorney and expert. 66 Concessions at depositions. SECOND EDITION Complaint. 40 Child custody cases. 14 criminal responsibility cases. 77 unpacking at hotel. 113–115 trial appearance. 86–87 Cross-examination. 82 Clothing packing for travel. 73–79. 23 Clinical material. 33–34 merit of attorney. 33–34 threshold question. 81 Communication with opposing attorneys. 48–49. litigants. 108 Browbeating by retaining attorneys. 116 Coaching. 81 delaying tactics. 33 scheduling. 17. 48–49 involving the insanity defense. 103–108 Camera. 32. 101–102 Crises while testifying at trial. 18–19. 24. 97 Case review. 99. questions about. 95 Court reporters. 32 Building a practice. 61. 30–32 “nothing to go on” problem. 64–65 Cough drops or throat lozenges at trial. 19 Capital criminal cases. or data. example of outline. 33 The court. money. 7–8. 65. 118 Criminal cases capital cases. 116–117 metal detectors at. 30 Causation. 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock). 44 nonconfidentiality warnings. 4 Class action cases. 28–29 Contingent fees. 107 Brokering a case when unable to handle it personally. See Attorneys Countertransference. 39–40 Cellular telephones. how to handle in written reports. 4. 47–48 Competence issues. 71 Candor. 135 . 16. 59–60. 100 Consultation services. 28 Correction of answers at depositions. 14 Carry-on luggage.142 THE PSYCHIATRIST AS EXPERT WITNESS. 62. legal. 65–66 Confidentiality breaches as basis for suit. 83 Courtrooms. 82 Child abuse issues. 30 validity of case. 34 Compound questions at depositions. xiii. 121–123 Constraints on time. 58–59 avoidance by attorney. 13–14. 69 Concentration at depositions. 34 misunderstood by attorney. 77. 118 Counsel. or experts. 113–114 Case name or citation in written report. 25 Conflicting stories from parties in case.
61. 115 access to courtroom. 4–5. See also Confidentiality. 34. Written documentation Doing no harm. 83–86 “yes” or “no” questions. 64 opinions and their bases. 34 assessing. 135 admissions in. 58–60 inappropriate questions. questions about. 64–65 later evidence affecting opinion given at deposition. 85 Dangerous examinees. 116 Drinking. 8 Double billing. Privilege Discovery. 57–72. 5–6. 59–60. 60 malpractice suits. 113 Dress and appearance packing for travel. 80–82 of examinees during interviews. Records leaving behind after trial. 69 Direct examination. vast amounts of now stored online. 61 compound questions or answers. 79–80 restructuring. 26 pauses before answering. 80–82 leading questions. 70 “gerrymandering” clinical data. 31 Database. 92 Disabled individuals access to airplanes. 62–63 concentration during. 65–66 consulting with retaining attorney during. 64 language/word choice. 74 Disclosure issues. 117 Drugs. 65 questions and answers. review of. 64–65 curious questions. 34 stenographers in. 65 correction of answer. 76–77 written documentation to give listing of. 135. 59 limits of expertise. 68 final preparation. 57–58 nondiscoverable material. 84 pauses before answering. 135. 68 treatises. 62–63 reviewing. 91–92 privileged information. 113–115 trial. 87–88 Depositions. 64. 77 unpacking at hotel. See Parties in case Demeanor cross-examination. 59–60 assumptions.Index demeanor during. 85 quotes. Reports. 63 goals of expert being deposed. 114 . over-the-counter. 68 of experts at trial. 66–67 demeanor of deponent expert. 68 fighting by attorneys at. 83 trial. 47 nonverbal responses. 68–69 breaks and recesses during. 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM). 73 use during trial. 77–79 Departure from courtroom. 85 reasons for. 58–70. See also Depositions interrogatories. 59 past. 88 trial preparation. 38 of experts at depositions. 29 Defendant. See also Interviews. See Records. 135. 66–67 locking in/limiting expert’s testimony. 66–67 143 interruptions. 69–70 videotaping of. 58–60 goals of opposing attorney. See Privilege Documents. 66 concessions. 64 priority. 64 objections. 97–98 Daubert challenge. 75 Decision to take case.
112–113. 47–48 cross-examination. 15 loyalty to retaining attorney. See also Written documentation Forensics. deposition and trial. 1–3 Experts honesty of. SECOND EDITION Family or friends.144 THE PSYCHIATRIST AS EXPERT WITNESS. See also Hired guns definition. always soliciting. 125–128 travel costs. 16 turndown rates. 49–51 examples. 95–96. staying with. 33 oaths. sample. 36 “False memory” cases. See also Ethics of attorneys. 30–32 of experts. 32 Good writing. scholars in. 25 External consistency of story. 50–51 interviews. 61. 28. importance. 82 Hotels. sample. xiii–xiv evidence in. 103–108 Forensic reports. 15 Honesty. 80 Fabrics. 136 spotting the other side’s. 112 Failure of retaining attorney to pay fee. 115 Feedback. 28. 38. 51–52 Hindsight bias. 28. 15 remaining neutral. doing none. 75 Ethics. 87–88 Evidence. 67 marketing. 49–50 Employment relationship. 17 special expertise of. 67 Expenses. 13–14. 26–28 detailed fee agreement. 62 Hired guns. 15 altering reports. 28 Fairness. 18–19 honest advocate model. litigants. 115 Flip charts at trial. 5. 6. principles of. 8 Hearsay. 60 False allegations. 38 “nothing to go on” problem. 2 Forms detailed fee agreement. 13–21. See Meals Emotional injury cases. or experts. See Countertransference Forensic practice. 24 Entrance of judge. 78 Global requests. 6 High-profile cases. sample. for travel. 78 Eating. 37 Eye contact at trial. 115–116 Humility factor. 25 Flashlight. Reimbursement for travel Expert witnesses. See Meals Forensic countertransference. 44 . 7–8. 129–130 standard fee agreement. See also Conflict of interest advocate for truth model. 129–130 standard fee agreement. 100–101 billing. 88 Fees. 1 functions. ethical model. 44. 125–128 Gestures at trial. 15 social relationships with attorneys. 61. 113 Fitness as expert. 16 marketing a forensic practice. 28. 107 new facts at trial. 9 Humor. issuing. 14–15 Etiquette at trial. 80 Flying. 96 Harm. See Fees. of sexual misconduct. 113 contact with opposing attorneys. 25 Honest advocate. See Air travel Food. 75–79. principles of. 52–55 History of expert. 82 nonconfidentiality warnings. sample.
106 Locality rules for standard of care. 34 . 37 interference. 116–117 Media coverage and cases. 40 videotaping or recording. 39 Interviews. 137 Insurance challenges. 87–88 Lecturing as marketing tool. 18 Integrity. 115 during trial. 34 depositions. 107 strategies.Index Identification with retaining attorney. pros and cons. 45–46. 83 testimony before. 99. 34–38 “alibi” issues. 36 internal consistency of story. 49. 6–7. 36 Internal consistency of story. 37. 16 Insanity defense in criminal cases. 115 Lawyers. 137 Intervening causes. 112 Meals airplane food. 36 presence of attorney. 37 alternative scenario. 45 locality rules. 106 specialization. 87–88 dismissal by. 79–80 Jurisdiction-specific language. 43–48 creating timelines for. 78 Jargon. 95 Likelihood principle. 106 Letters to attorneys. 53. 49 demeanor of examinee. 86. 107 lecturing. 35 order of. 35 retention of records. 105 Judgment. for travel. 2 entrance. 34–35 plaintiff. 35 Involuntary gestures at trial. 46–48 social service history. importance of. 7 Listings as a marketing tool. 79. 45 Juries. 84 Leaving courtroom. 16. 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon). 49–50 external consistency of story. See Hotels Loyalty to retaining attorney. 103–108 announcement of practice. 57–58. 6 entrance of. 52 Malpractice suits. 91–92 recording. 34–35 plausibility of case. 47 elements of malpractice. 48–49. 37–38 criminal responsibility cases. 86 Malingering. suspending. 112 Judges addressing. 106 publishing/writing. level of scrutiny. See Attorneys Leading questions on crossexamination. 45 records. 138 Marketing a forensic practice. 75 respect for. review of. 75 informing of availability as forensic expert. 98 145 Laptops. 45 Lodgings. 107 Interference of attorneys during interviews. 97 to the court. 105 ethics. 36 nonconfidentiality warnings. 35 priority. 82 Jet Smart (Fairchild). 36 Interrogatories. 38 note taking. 38 emotional injury cases. 119 Materials. 106 listings. 47 standard of care. 18–19. 51–52 Medical records.
115 Preexisting illnesses or conditions. 49–51 Morality. effect of. 25 initial contact. 17–18. goals of. 30 Occasions. 112 Packing for travel. 65. See Trial preparation Prescription medications. 26–28 Networking. 82 Mitigation of damages. 113–115 Parties in case case name or citation in written report. 80 Misunderstanding of clinical issues by attorney. 16–18 clinical and forensic issues. while traveling. unfailing. 82 interrogatories. 40. 49–51 Practice pointers. 97 . 86 Nonconfidentiality warnings. SECOND EDITION Online. 91–92 Privilege. 66. 26 Opposing attorney. 26–28 fitness as expert. 138. 69 Plaintiff. 81 Postreport negotiations. 68 Pauses before answering cross-examination. use of. 16. 97 communication with opposing party. 47–48 plaintiff interviews. 64 interrogatories. 24–25 timing and scheduling. 70 Medication issues as basis for suit. 57–58 Objectivity. 44 Melatonin. 34–35 Patience. 24 decision to take case. 25–26 Priorities. 85 depositions. 77 Personal injury cases. 8 Pens and pencils at trial. 14. consulting with retaining attorney at. 38 Nonsexual seduction. See also Confidentiality deposition. 100–101 Posttraumatic stress disorder. 13–14. questions of. 47 during interviews. See also Marketing a forensic practice New facts at trial. 15 Objections depositions. 137 Note taking importance of. 97 Preparation for trial. 4–5. 74. writing for. 45. 15. 114. See Parties in case Plausibility of case. 91–93 Precautions. 5. 82. See also Web sites storage of past depositions. 29 fees. not compromising. 67 National Forensic Center. 58–60 Opposing expert witnesses. 64 Peer review for testimony. See Emotional injury cases Physicians’ Desk Reference (PDR). 118 Metaphors and analogies. 106 Negligence. 35. 74 Prior testimony by expert. 137 depositions. 24–29 background of expert. 137 Negotiations with retaining attorney. 47–48 Outcome of case. 65 work product privilege. 82–83 Microphone use at trial. 54. 50 Preliminary reports. 88 The Packing Book (Gilford). 77 keeping notes. 25 bias. 104. 71 Oaths. 117 Metal detectors at courthouses. 57–58 trial.146 THE PSYCHIATRIST AS EXPERT WITNESS. 36 Politeness. 117 Pretrial conferences. 24 request of retaining attorney. 39 vulnerability of plaintiff (“thin skull”). 52–55 contact with.
showing toward juries. 92. 25 Reasonable medical certainty. 40 case review. Robert I. 18. See also Malpractice suits Suitcases. 119 Site visits. 93 Seating at trial. maintaining appropriate. 68 Storytelling. 25 Required action. 74 Reimbursement for travel. 112 Reality-testing. 81 Sworn statements. 28–29 Running shoes. 14 147 Retaining attorney. 31–32. George. 91–93 personal conflicts. 51–52 Quoted passages.Index Pro bono work. 115 Rental cars. 48 Sleeping. 113–114. level of scrutiny. 82. 38–39. 82 Silent treatment. 33–34 CATO model for. 15. 9. 40 Returning calls. 46 criminal responsibility cases. obtaining in advance. 25–26 as marketing tool. 66 Simon. 6 Scheduling issues. 79 Stenographers. 138 of witnesses.. 112–113 Santayana. review of. 49 Sequestration. 53. See also Written documentation Reputation of expert. 108 Roles of expert. 97 Rehearsing testimony. See Negotiations with retaining attorney Retention of records. 54 Resources for suggested readings. 44. 24 Publications by expert. 107 Standard of care. 6–7. 99 Surprised expert. 6 Specialization. xiv. 85 Readings. 138 Rebuttals. 36. 64. 7. 138 Professional meetings. 106 Psychiatric malpractice suits. See also Court reporters in depositions. 43–45. 9. nonsexual. 75 Sexual misconduct cases. 112 Respect. See Breaks and recesses Recorded interviews. 108 written documentation. 73–74. 131–133 travel books. 47 Socratic method. 100 Recesses. 46–48 medical records. 104–106. 35 Records. staying with. 7. 106 Publicity and cases. 97–98 Supporting data for written reports. 54. 34 malpractice cases. 5–6. 17–18 Self-serving behavior. response to. reasonable medical certainty. See Oaths . negotiations with. 75–76 Seduction. 70 Skepticism. See also Packing for travel Supplementary reports. 33. 49 database of. 45–46. 3. 113 Relatives. 131–133 travel books. 16 Social service history. 112 Reports. 40 social service histories. 34 retention of. review of. 117 Social relationships with attorneys. suggested. importance of. 26–28. 6. power of. 79. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil). traveling with. 83 Retainer. 138 Standard of proof. 3 Suicide malpractice cases. 95–102. 107. 47 Referrals.
80 humor. 87 . bringing into. 116 Treater. 108 wake-up calls. 78–80 Telephones calls during trial breaks. 19. 76–77. 87–88 dress and appearance. 74. questions about. 82. 112–113 travel information. 77 etiquette at. See Meals packing. 25–26 roles of expert. 86. 78 illustrations. 35 keeping track of. 74 planning. 64 for interviews. 82–83 lunch during. 85–86 conclusion of questioning. 77 pointers. 113 Travel service. 91–92 seating at. 74 Truth telling. 86–87 cross-examination. importance of. 117–118 Trial preparation. 26–28 travel time. 43–56 criminal responsibility cases. 86 pens and pencils. marker board. 87–88 eye contact. 80 pretrial conferences. 77. 74 pitfalls. 77 returning calls. 14–15. 8–9 Treatises. 44 Throat lozenges or cough drops at trial. 45–46 Types of cases. 113 examinees. 28–29 Third-party cases. 115–116 meals. See also Ethics. 49–51 Tarasoff-type cases. 34 for depositions. 48–49 emotional injury cases. See Crossexamination demeanor at. 74 using database during. 115 lodgings. 111–118 billing. 8. 77 courtroom. or flip chart. 77 breaks and recesses during. effect of. versus expert. 69–70 Treatment recommendations. 81–82 priority. 73–74 language/word choice. 79–80 timing and scheduling tips. 116 Testimony at trial. blackboard. 39–40 Travel books. 74 rehearsing. 77–79 departure from courtroom. 112 unpacking. 85. 44. 117 time planning. 75–76 supplies. 112 Travel expenses. 80 language/word choice. 73–74 practice sessions. 75–79. 74 Teaching role. 55. 74 presentation. See also Cross-examination prior testimony by expert. 60. 77. 118 Time creating timelines. 35 flying. 118 crises while testifying. 112 Traveling. SECOND EDITION cough drops or throat lozenges.148 THE PSYCHIATRIST AS EXPERT WITNESS. 73–90 beepers/cellular telephones. Honesty Turning down cases. 139 Type of practice expert has. 79–80. 13. 139 Taxicabs. 61. 80. 76–77 water. 80 new facts coming to light. 112–115 sleeping. 37–38 Trial. 74. effect on standard of care. 116–117 microphone use. 112 Traumas. 77 what to bring into court. 117–118 testimony. 92. 82. 86 cellular telephones. 51 evaluating.
44 White noise. 97 occasions. 101–102 database listing. 100 referrals. 7 Waffling in answers. how to handle.” 18–19 “Ultimate issue. 97–98 jurisdiction-specific language. 77 Web sites. Reports case name or citation. 98 letters to attorneys. 116 Water during air flights. 108 Work product privilege. misunderstanding by attorney. 82 Values. 97 interviews/items reviewed. 97 supplementary reports. 104–105. 35 Visual aids. money. example of outline. 82–83 149 Word-of-mouth referrals. 4–5. 115 in courtroom during trial. 139 Understanding of clinical issues. 99 .” 2. 97–98 supporting data. 97 principles of good writing. 74 Voltaire. 97 conclusion. 100 criminal case. 51–52 psychiatric malpractice cases. 95–102. 97 opinion. See also Records. 74. 79. 96 rebuttals. 70–71 Videotaped interviews. 140 Written documentation. 140 examples of. 100–101 preliminary report. 99–100 constraints on time. 117 Word choice depositions. 98–99 postreport negotiations. 97–98 headings.Index high-profile cases. 107 Weight to be given to on-site psychiatrist’s observations. 64–65 reports. questions of. or data. 53–54 Wake-up calls. 100–101 trial preparation. 67 Video depositions. 43–48 “Ultimate ethical test. 98–99 conflicting stories from parties in case. 70.
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