The Psychiatrist As Expert Witness,

The Psychiatrist as Expert Witness Second Edition

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The Psychiatrist as Expert Witness Second Edition

Thomas G. Gutheil, M.D. Harvard Medical School Boston, Massachusetts

Washington, DC London, England

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

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

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Contents About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

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Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . 1 The Adversarial Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Prime Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Confidentiality Warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Socratic Method. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Malingering and Self-Serving Motivation . . . . . . . . . . . . . . . . 6 Reasonable Medical Certainty . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Hired Gun Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Treater Versus Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Humility Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . . . 13 The Nonconfidentiality Warning . . . . . . . . . . . . . . . . . . . . . . 13 Turndown Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Ethics and the Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Problems of Loyalty and Identification . . . . . . . . . . . . . . . . . 16

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

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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

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

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

About the Author

Thomas G. Gutheil, M.D., is professor of psychiatry in the Department of Psychiatry at the Beth Israel-Deaconess Medical Center, Harvard Medical School; 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. 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. Through more than 250 publications and many lectures and seminars in national and international fora, he has taught many clinicians about the interfaces between psychiatry and the law. Recipient of every major award in the forensic field, he has received local and national writing and teaching awards; the textbook, Clinical Handbook of Psychiatry and the Law, coauthored with Paul S. Appelbaum, M.D., and now in its fourth edition, received the Manfred S. Guttmacher Award as the outstanding contribution to forensic psychiatric literature.

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Preface to the Second Edition

What This Book Is Meant to Do Serving as an expert witness involves many paradoxes. Such service presents many stresses and equally many satisfactions; it provides tedious stretches of waiting and inactivity, interspersed with frenzied bursts of action; it is refreshingly free of managed care and its constraints on good treatment but presents many new and complex restrictions of its own. 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. 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, and many a practitioner feels the urge to try out this fascinating realm. 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. From another perspective, 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, which is aimed primarily at the treating psychiatrist who may end up in a courtroom; in fact, if you feel shaky about the basics, that book is a good place to warm up. As an aid to present readers, and at the request of past readers of the first edition, a number of basic points from that book are covered in early chapters of this second edition for readers who would benefit from such a review. In addition, besides the requisite updating of references and suggested readings, other changes in this second edition include: a glossary of useful terms; expanded definitions of key concepts; an expanded discussion of bias in testimony; additional illustrative examples; a model forensic consent form for examination; and cases or principles that I have learned about since the first edition. Moreover, this edition also contains things I wish I had said in the first edition. xiii

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

Acknowledgments

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

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CHAPTER 1

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

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

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Another scholar, a law professor, went even further by listing the functions of the expert as being to 1) tell the story, 2) make the fact finder want you to win, 3) make sense out of the law, 4) help the fact finder see the facts, and 5) argue the case (1). The power of storytelling was captured in a movie about the career of Mozart; consider this scene: In the movie Amadeus, the emperor is initially resistant to Mozart’s novel music. In one scene, Mozart begins to describe the opening scene of The Marriage of Figaro, with Figaro kneeling on stage taking the measurements of his marriage bed. The emperor leans forward, eyes glowing with interest. Despite his doubts, he has become engrossed in the story. (2, pp. 4–5)

Other scholars agree that one of the principal functions of the expert is to tell the story, to draw causal connections between apparently unrelated facts to demonstrate and illuminate the meaning of what has happened. The expert also will show how conclusions are based on facts in the case as they may relate to symptoms, demographics, statistics, syndromes, clinical entities, causation, and the resulting probabilities. A vivid example of the vital importance of storytelling (from the lawyer’s viewpoint) occurred in one of my first suicide malpractice cases. The highly experienced defense attorney who had retained me was heard to mutter at one point, “Where are the communion pictures?” Pressed for a less cryptic expression, 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. Showing pictures of the deceased at communion, at family functions, and so forth would have accomplished this vital storytelling purpose. In this chapter, and throughout this book, I assume some rudimentary familiarity with the courtroom itself and with basic legal concepts; however, some points, although basic, are so essential to this work that I review them in the following discussions.

The Adversarial Context The court operates under a set of basic rules and assumptions that are unique to its functioning. The foremost of these, and the one often most troubling to clinicians, is the adversarial context. Most clinical work occurs in the context of the alliance; oppositionality, conflict between the parties, and an adversarial atmosphere are problems to be avoided, surmounted, or resolved or otherwise put to therapeutic use.

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Compare how treatment planning might occur in the inpatient setting. Although there may be as many views of the patient as there are team members, 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, even if it is a compromise (3). In medicolegal work, the adversarial context is one of the “givens” in the situation. Unlike the search for consensus in the clinical setting, the court situation is a zero-sum game: one winner, one loser. The beginning expert must take pains to be clear on how this overarching consideration affects the work being done. For example, two of the victims of this concept are ambivalence and complexity, both of which reside in every case and every patient or litigant. In the legal context, ambivalences may be divided between the two parties in the case rather than felt internally by either; and complexity may be lost in the effort to persuade the jury that a clear result should occur (3).

The Prime Question Any forensic psychiatrist, whether testifying or consulting, must first ask the question, for whom am I working? Your answer will clarify your location within the adversarial framework, as well as the usual lack of a physicianpatient relationship (i.e., in the clinical context, you usually work for the patient; in a forensic setting, you usually do not). Like other consultants, you work for the consultee (i.e., in the forensic setting, the retaining attorney or court). You also will be sensitized to certain issues of privileged information and work product exclusion (a term clarified later in this discussion) that may come to bear. The question of whom you work for also will alert you to major pitfalls of bias, challenging you to maintain your objectivity when your review leads to conclusions unfavorable to the side retaining you. Note for completeness that certain forensic contexts, such as child custody evaluations, render highly complex the question of agency. The usual guiding principle in such determinations is “the best interests of the child,” a mandate that may trump other claims on your agency. This specialized topic is beyond the scope of this book, but experts in child custody issues often stress the value of working directly for the judge as court-appointed evaluator, because that position confers greater neutrality and protection for your efforts. I define the term work product to include the notes, memoranda, files, and other papers that the attorney generates in the course of litigation, meaning that they are about the attorney’s analysis and strategies about the case but are not substantive materials of the case. In other words, they are not case-related documents and therefore are protected from disclosure. Com-

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munications from the retaining attorney to the expert are generally discoverable, with some exceptions. Most attorneys know not to include details of their trial strategy in letters to you, lest they be exposed prematurely to the other side. The retaining attorney will guide you in this matter; when in doubt, your personal attorney can always give you advice on nondiscoverable matters.

Confidentiality Warnings One of the immediate issues to confront the expert is the fact that therapy, with exceptions, is private and confidential. In contrast, court-related issues are often matters of public record and public exposure (in open court). Therefore, we must pay scrupulous attention to warning the people whom we interview and examine—plaintiffs, defendants, suspects, convicts, litigants, 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. The warning about the nonconfidentiality of the material to be discussed represents an essential ethical threshold for all forensic work; it should, of course, be carefully documented. Warnings are further discussed in later sections about the interview itself, and captured as well in the consent form for forensic examination as Appendix 1.

The Database The term database is my own shorthand label for all the relevant materials I may read in the course of a case, including records, legal documents, reports, correspondence, my own or others’ interview notes, and relevant literature. The term also suggests that an expert’s opinion rests on a base, or basis, of data—facts and clinical verities—rather than on idiosyncratic theory or whim, fantasy, or impression. Although therapy usually transpires within the patient’s self-reported data, the forensic perspective almost always extends beyond the individual examinee. One trenchant reason for this approach is to obtain corroboration or discorroboration. As we will see later, the fact that the expert should rely on the entire database in generating an opinion is no guarantee that all of the content will be allowed to be admitted into the courtroom. The issue here is the tension, later addressed, between the “whole truth” and the “admissible truth” (4). 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.

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION Half-recalled memories—of what the patient’s second cousin may have said, 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, despite the convoluted, hearsay-ridden trail by which it comes to the team’s attention. (3)

Such useful data would likely be ruled inadmissible by the rules of the legal process. Yet the court may be driven by principles of fairness, which preclude admission of certain kinds of data or evidence in the name of justice. In practical terms the expert witness, though under oath to tell the whole truth, may be forced into limitations on this promise because of countervailing considerations of precedent, prejudice, hearsay, fundamental fairness, and the like (4). The witness should be guided by the maxim: when entering the courtroom, one is guided by its rules.

The Socratic Method Although expert testimony has been compared to teaching, the common method of the lecture is replaced by another approach: the Socratic method of question and answer. This painstaking, detailed, 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, but the Socratic method is one of the mainstays of courtroom procedure. Once again, experts in court must play by court rules. Even if neither side asks sufficiently relevant or specific questions to allow you to provide comprehensive or complete testimony, do not demand to be heard: answer all the questions and then stand down when dismissed.

Malingering and Self-Serving Motivation Skepticism is the chastity of the intellect and it is shameful to surrender it too soon... — George Santayana

Unlike the treatment context, the forensic arena provides a variety of incentives for malingering and self-serving behavior or testimony. Because a patient in treatment is willingly coming for help, it is usually inappropriate for a treating therapist to be suspicious of a patient’s truthfulness, absent clear delusions, obvious self-contradiction, and similar signs. In contrast, the forensic practitioner is wise to suspect everyone of having some stake in the matter, be it moral or monetary, and to maintain an appropriately skeptical posture, always seeking out verification, corroboration, or discorroboration

Introduction: What Makes an Expert?

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for all important facts. The general principle to follow is that malingering should be suspected in every forensic examination for almost any purpose.

Reasonable Medical Certainty Doubt is not a very pleasant condition, but certainty is absurd. — 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, reasonable medical probability, or even reasonable psychological certainty). This term does not mean absolute certainty (100% sure) or an impression (1%–50% sure). Rather, 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. Note that there may be some jurisdictional variation on this point; ask about the local variant. Deciding where this level of certainty lies for the expert is one of the critical tasks of forensic work.

The Hired Gun Problem The so-called hired gun problem continues to dog the field of expert forensic work, makes forensic psychiatrists unpopular with their clinical colleagues, and leads physicians of all specialties observing, for example, high-profile insanity cases, to declare forensic psychiatry an embarrassment to the field of medicine in general and psychiatry in particular. The most succinct definition of a hired gun is an expert witness who sells testimony instead of time. All psychiatrists, including forensic psychiatrists, sell time; we are paid by time criteria. The hired gun goes beyond time criteria to demonstrate corrupt willingness to offer for money the testimony that the retaining attorney desires, regardless of its clinical or empirical validity. Such individuals can be recognized not only by the baselessness of their opinions but also often by their use of 1-800 telephone numbers. Although some will cry that there are exceptions, a number of experts point out that no honest witness does enough forensic business to merit a 1-800 telephone number. For most of us, forensic work is a sideline to our clinical focus. Other contextual clues about the hired gun are overly candid advertising in legal media (e.g., “Opinions for sale!”) and use of expert witness brokerage organizations that specialize in matching willing experts with attorneys. As a general rule, honest experts should avoid these approaches to

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

finding work, if only to avoid guilt by association and possible caricature by opposing attorneys (see also Chapter 9, “Developing and Marketing a Forensic Practice,” in this volume). The importance of having a salaried “day job” or a private clinical practice cannot be overemphasized, because these provide a base of financial stability that enables you to turn down cases. If a clearly meritless case is offered to you for review, you must be free to turn it down without feeling that you are kissing goodbye the funding for your children’s college careers. Thus, you avoid temptation to skew your opinion, and you maintain your ethical compass direction. There are complexities in this area that should be addressed. Experts who make the mistake of becoming emotionally caught up in their own opinions (instead of recognizing that experienced, ethical experts can disagree) may view anyone’s opinion that opposes their own as hired gun material. Often no absolute standard exists by which to measure opinion testimony, so this question may be difficult to resolve in any objective sense without analysis of that expert’s database, reasoning, case materials, and corroborating data. A valuable development in this area has been the introduction of peer review for testimony as a voluntary educational aid provided by the American Academy of Psychiatry and the Law (AAPL). Experts concerned about their testimony in conflict with a peer’s opinion may submit that testimony to the AAPL Peer Review Committee for consideration. Forensic psychiatrists who have made use of this committee find it extremely helpful and illuminating. (By the way, all forensic psychiatrists should seriously consider joining the AAPL and attending its meetings; it is an excellent way to benefit from the teaching of colleagues and to share ideas.)

Treater Versus Expert Should a patient-litigant’s treater ever serve as an expert witness? Although there are no inherent problems with serving as a fact witness and reporting on your observations of the patient, there are significant clinical, legal, and ethical incompatibilities with serving as your patient’s expert, summarized as follows (for more extensive discussion of this point, see reference 5 and the appendix to reference 3). First, although the clinician is obligated to place the welfare of the patient above other considerations, 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), the principle of primum non nocere—“as a first principle do no harm”—may be vitiated by testimony that

Introduction: What Makes an Expert?

9

the treater gives in court. Second, most treaters do not give their patients the forensic warnings noted earlier against self-incrimination; treaters called into court may violate the confidentiality of the clinical setting, even though this may occur appropriately under legal rules. Third, a treater begins work with a patient from a credulous position: the patient’s subjective view is the initial perspective agreed on and explored in the dyad; in contrast, the expert goes in skeptical, as noted in the section on malingering above. From this viewpoint, the therapeutic alliance, though essential for therapy, constitutes a bias for forensic functioning. Attorneys seem to display a curious indifference to these incompatibilities, whether because of simple ignorance of the above distinctions, the wish to avoid paying expert fees that are usually higher than those of treaters, or the belief that the attorney can sell the jury on the idea that “the treater knows this person best.” Although this last is true in certain respects, the treater has usually had only the patient’s reports on which to rely, rather than the entire forensic database. For these and other reasons the treater should resist serving as the expert witness for his or her own patients.

The Humility Factor Finally, it is always worth keeping in mind the sobering fact that the expert’s contribution may not be all that determinative of case outcome. Early in my career, I bade farewell to the fantasy that I would “win” the case by profound scholarship and dazzling testimony on the stand (8). 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, thus leaving the jury free to vote its “gut.” Even when the expert is the only source of data that the jury receives, 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. Master forensic psychiatrist Robert Simon, M.D., has expressed it thus: “The expert witness is a hood ornament on the vehicle of litigation, not the engine.” This provocative image should be kept solidly in mind. Indeed, the issues outlined throughout this chapter should be kept in mind while reading the remainder of this book.

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

References 1.

2.

3. 4.

5.

6. 7. 8.

Dragan EF: Creative use of experts: what is an expert used for? Council for the Advancement of Science in Law, Expert’s Quarterly (Winter): 2, 1997 Gutheil TG, Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins (Wolters Kluwer), 2007 Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington, DC, American Psychiatric Press, 1998 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 Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry 154:448–456, 1997 Schouten R: Pitfalls of clinical practice: the treating clinician as expert witness. Harv Rev Psychiatry1:4–5, 1993 Appelbaum PS: A theory of ethics for forensic psychiatry. J Am Acad Psychiatry Law 25:233–247, 1997 Gutheil TG, Simon RI: Narcissistic dimensions of expert witness practice. J Am Acad Psychiatry Law 33:55–58, 2005

Suggested Readings Ackerman MJ, Kane AW: Psychological Experts in Divorce, Personal Injury and Other Civil Actions. New York, Wiley, 1993 Appelbaum PS: Forensic psychiatry: the need for self-regulation. Bull Am Acad Psychiatry Law 20:153–162, 1992 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Barsky AE, Gould JW: Clinicians in Court: A Guide to Subpoenas, Depositions, Testifying and Everything Else You Need to Know. New York, Guilford Press, 2002 Bronstein DA: Law for the Expert Witness. Boca Raton, FL, Lewis Publishers, 1993 Buchanan A: Psychiatric evidence on the ultimate issue. J Am Acad Psychiatry Law 34:14–21, 2006 Catto G: Acting as an expert witness. British Medical Journal 337 (#7664), August 2, 2008. Available at: http://www.gmc-uk.org/guidance/ethical_ guidance/expert_witness_guidance.asp. Accessed August 5, 2008

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

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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, with two steering controls manned by lawyers intent upon veering the contraption in opposite directions at every fork in the road, while a judge alternately stomped on an unreliable accelerator and an unpredictable brake....[Finally] I realized that each witness chair comes equipped with a stabilizer control. It is a control easily within the reach of every witness—the lever marked “truth.” (1, p. S-3)

THE EXPERT faces many challenges in forensic work, but the one that often poses the greatest challenge is maintaining your ethical bearings against the manifold pressures that attempt to lead you astray. In this chapter, I address these ethical concerns and the means by which to keep your internal compass pointing to “ethical north.”

The Nonconfidentiality Warning Although forensic nonconfidentiality has been broached in Chapter 1 (“Introduction: What Makes an Expert?”) in this volume, it is so central to the forensic relationship as opposed to the clinical one that it bears repeating for several reasons. First, examinees being interviewed by a psychiatrist, particularly an empathically attuned one, tend to drift unconsciously into a “therapeutic mode.” They may forget that this encounter is not therapy, and its results may harm, rather than help, their ultimate goals in the legal process. To prevent such inadvertent abuse or exploitation of the examinee, the ethical expert be13

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

gins with warnings about the differences between the forensic and clinical interview and, if necessary, repeats those warnings if the examinee appears to be slipping into a state of therapeutic self-disclosure. The warnings (carefully documented, of course) are especially important in capital criminal cases in which a life may literally hang in the balance. The warnings in the appropriate language are captured in the forensic examination consent form in Appendix 1.

Turndown Rates An ethical test for the expert that occurs early in the process is the case turndown rate. 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.g., you are friends with one of the defendants). Rather, the turndown rate is the percentage of cases in which, after reviewing, you decide you cannot support the retaining attorney’s position. (Note that even if you cannot support all of the claims proffered in the case, 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.) For example, in a psychiatric malpractice case for which you have been retained by the plaintiff’s attorney, your review of the database may lead you to the conclusion that the treaters all practiced within the standard of care. Therefore, this case might be called a defense case because the actions of the defendants are, indeed, defensible. You pass this information on to your retaining plaintiff’s attorney, who—in the ideal situation—accepts this view, thanks you for your help, indicates the intention of explaining your information to the client, and states, understandably, that the firm will not be using you as an expert. After settling up any monetary adjustments, this case is over and has been turned down. In a not-so-ideal situation, the attorney curses your name, denounces your integrity, impugns your ancestors, scoffs at your qualifications, and slams down the telephone. This fortunately rare emotional response is a powerful argument for obtaining a retainer in advance. Most experts find it helpful to note what percentage of the time they turn a case down as an ethical orienting device. Turndown rates between 10% and 30% are not uncommon. If you take every case you review, you must consider whether your threshold for case validity may be too low. If you turn down most cases you get, either your threshold for validity is too high or you need to meet a better class of attorneys. For symmetry, 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?

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Note also that you may be in a position to refer cases to colleagues who are known to you as having perspectives different from your own on, for example, inpatient care. Although these referrals are not strictly turndowns, they do represent cases in which you have elected not to participate. The turndown decision is often difficult to evaluate because you have no control over the kind of cases referred to you, only over those you elect to accept. Consequently, you could receive a number of good cases, all of which you might accept, or a number of invalid or meritless cases, all of which you should turn down. Nevertheless, 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.

Ethics and the Oath Taking the oath at deposition or trial is another ethical threshold. You are agreeing from that point on to offer only that testimony that you can swear to rather than what you think, guess, speculate about, and so on. An author described the special sensitivity to what one can swear to in this way: You are asked, “What color is that house over there?” The novice answers, “White.” Your correct answer would be, “White on this side.” Once under oath, that is, you take nothing for granted. Scholars in forensics have discussed two models of apparent equal integrity concerning the practical meaning of taking the oath (2). One model holds that once the oath is taken, the only touchstone is absolute truth as you know it or understand it. Partisan pressures from the adversary are put aside, and the expert becomes the fully neutral observer and reporter. This model is sometimes called the advocate for truth model. 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. Consequently, it is fully acceptable to advocate for the side that retained you by testifying as effectively and persuasively as you are able, as long as 1) you are frank about the limits of your data (including contrary data) and therefore of your testimony, and 2) you answer cross-examination truthfully (see the following discussion). This model has been called the honest advocate model. The third model and the one probably in most common use might be called advocacy for your opinion (rather than, say, for a particular case outcome); that position is always acceptable. In forensic practice, most experts use a combination of these models as a means of arriving at the critical ethical posture of “honest expert.”

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

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

However, many expert biases are not detected either by the adversary system or even by the experts themselves; bias can be exceedingly subtle. The

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topic is covered more extensively elsewhere (6, 7), but a summary listing of possible biases may illustrate the point. As Table 2–1 indicates, there are numerous potential biases covered in the article, many self-explanatory; here I select only the most common for a brief review. The treater bias is addressed in the treater-expert conflict noted earlier; the dual role should be avoided. Money is the most problematic bias, in that to be diverted from necessary objectivity by the fee is to become a venal hired gun. Attorney pressures are an expected potential influence to be resisted, with withdrawal from the case serving as a last resort (7). The potential hindsight bias—the belief that an outcome is more likely because it has already occurred—bedevils all forensic work, since almost all litigation (except possibly contracts) occurs after the fact. Personal bias, when a case hits too close to home, and professional beliefs or ideologies, when you approach a case from a particular perspective or school of psychiatry, also threaten objectivity. Finally, the advocacy bias, where the expert advocates for the side of the case rather than for his or her own opinion, is a universal pitfall in forensic work. How should possible bias be addressed? In terms of useful approaches we recommend 1) not denying bias; 2) resisting attempts to compensate for possible bias (since attempts to correct one’s own biases may constitute disingenuousness); and 3) directly addressing bias on direct examination, while allowing each attorney to point out the potential for bias of the other side’s expert. For example, in a suicide malpractice case, an expert might respond on direct, “I am biased in favor of the belief that everyone is an autonomous agent; but in this case it is my expert opinion based on the data that the treater’s negligence was the proximate cause of the plaintiff ’s decedent’s suicide”; or, in an insurance challenge, “I do not believe that every patient who commits suicide is mentally ill or insane by the relevant criteria, but I believe in this case the decedent was sufficiently mentally ill to meet criteria for unsound mind in this jurisdiction” (8, pp. 73–74).

The Ultimate Ethical Test The ultimate test of expert witness integrity is honesty under cross-examination. On direct examination, the lawyer will take you through your credentials, what you have reviewed, your opinion, and its basis. A competent attorney and expert will have prepared for this stage of the proceedings by reviewing the questions that the attorney plans to ask, clearing up any dubious issues, anticipating relevant cross-examination, and so on. Cross-examination is new territory, spontaneous and unrehearsed. During the cross-examination, the holes and limits of your side of this case will

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The Expert’s Ethical Universe

TABLE 2–1.

SOURCES OF POTENTIAL BIAS

External sources of potential bias

Internal sources of potential bias

Treater bias

Narcissistic

Money

Competitive

Entrepreneur

Transferential

Attorney pressures

“Love me”

Political

Gender

Extra-forensic relationships

Research

“Limelight”

Writing

Hindsight

Personal

Confirmatory

Professional belief Religious/moral Advocacy Traumatic experience

Source.

Gutheil and Simon (6), p. 261.

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

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References 1. 2. 3.

4.

5. 6. 7.

8.

Baker TO: Operator’s Manual for a Witness Chair. Milwaukee, WI, Defense Research Institute, 1983 Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Williams & Wilkins, 2007 Gutheil TG, Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington, DC, American Psychiatric Publishing, 2002 Gutheil TG, Commons ML, Miller PM: Withholding, seducing and threatening: a pilot study of further attorney pressures on expert witnesses. J Am Acad Psychiatry Law 29:336–339, 2001 Slovenko R: Discrediting the expert witness on account of bias. Psychiatric Times, December 2004, pp 33, 36, 38, 39 Gutheil TG, Simon RI: Avoiding bias in expert testimony. Psychiatric Annals 34:260–270, 2004 Gutheil TG, Simon RI: Attorneys’ pressures on the expert witness: early warning signs of endangered honesty, objectivity and fair compensation. J Am Acad Psychiatry Law 27:546–553, 1999 Commons ML, Miller PM, Gutheil TG: Expert witness perceptions of bias in experts. J Am Acad Psychiatry Law 32:70–75, 2004

Suggested Readings Appelbaum PS: Ethics and forensic psychiatry: translating principles into practice. J Am Acad Psychiatry Law 36:195–200, 2008 Appelbaum PS: The parable of the forensic psychiatrist: ethics and the problem of doing harm. Int J Law Psychiatry 13:249–259, 1990 Brodsky SL, McKinzey RK: The ethical confrontation of the unethical forensic colleague. Prof Psychol Prac Res 33:307–309, 2002 Candilis PJ, Weinstock R, Martinez R: Forensic Ethics and the Expert Witness. New York, Springer Science & Business Media, 2007 Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am Acad Psychiatry Law 36:181–184, 2008 Katz J: The fallacy of the impartial expert. Bull Am Acad Psychiatry Law 20:141–152, 1992 Lynett E, Rogers R: Emotions overriding forensic opinions? The potentially biasing effect of witness statements. J Psychiatry Law 28:449–457, 2001 Miller RD: Professional vs personal ethics: methods for system reform. Bull Am Acad Psychiatry Law 20:163–177, 1992

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

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CHAPTER 3

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

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The issue of not serving as expert when you are the treater is relevant but was noted earlier; the topic is extensively discussed in the companion volume, The Psychiatrist in Court: A Survival Guide, and in Appendix 1 (“Consent Form for Forensic Examination”) to that volume. If this issue is in question, refer to those sources.

Initial Negotiations With the Retaining Attorney Although psychotherapy is generally said to begin at the moment of eye contact between patient and therapist, an expert witness relationship usually begins with a telephone conversation between you and the attorney who is seeking an expert. This telephone call is far from a mere administrative formality. Instead, some vital information must be obtained to make the entire future relationship smoother and more valuable to both parties. In this chapter, the term your attorney will be used to refer to the attorney retaining you as an expert, not your personal counsel, though this distinction may be intentionally obscured as a cross-examination tactic. This point came up in an actual cross-examination in a distant state. I was asked, “Have you discussed this with your attorney?” This threw me, because my attorney (my personal counsel) was back in Boston and discussions with him about this case would be unethical. It became clear that the cross-examiner meant my retaining attorney, which—either by accident or, more likely, on purpose—he chose to characterize as “mine,” implying venality and bias. Watch for this ploy. How you communicate with your attorney is important from the outset. Novice experts sometimes believe that their goal in the first telephone call from the attorney is to impress the latter with their erudition, clinical experience, and mastery of professional jargon; this approach is self-defeating. Attorneys are looking for a psychiatrist who can communicate clearly and simply with them and lay juries. Friendly, informal discussion should be the format; politeness dictates that you call the attorney Mr. or Ms. 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.

The Retaining Attorney’s Request After the first forensic question, for whom am I working, 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-

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chiatrist actually has some knowledge about; that is, 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, as though by a simple examination of the plaintiff you can supposedly determine the truth of the claim. In general, such cases should be reality-tested for the attorney.

Your Fitness as an Expert Should you, personally, take on this case? Do you have some expertise in this general area or in this specific area? If you do not, but the attorney wishes to retain you anyway because of a recommendation from a peer or because of the high regard in which you are held by local physicians, it becomes your responsibility to be completely candid about the limitations of your knowledge and experience (e.g., “Look, I don’t know a great deal about this specific subject, but I am willing to become familiar with the issue”). The attorney can then take or leave this arrangement. Note that your special expertise should exist against a backdrop of your general competence in the field, as indicated by publication, experience, board certification, and so on.

The Question of Initial Bias The last chapter should raise the question: Is there an element of bias pro or con? Do you know the players, the hospital, and the setting? Are there personal resonances with the case that would interfere with your objectivity? For example, if your aged mother has just died in a nursing home, you should probably consider turning down an emotional injury case involving an elderly female nursing home resident. This example is fairly obvious, but subtler versions of personal resonance with a case are not uncommon. These issues go beyond mere conflict of interest, which is usually (but not always) clear-cut. I recommend hearing about the broad issues of the case first and only then asking for people’s names. Therefore, if you cannot or should not take the case, the attorney will not have revealed confidential information (the names) to you, yet you will have screened for bias before the attorney has taken you too deeply into trial strategy issues that should be kept privileged and private.

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. For example, have you been the defendant in a malpractice suit, however baseless? Are you now being investigated by the board of registration for some allegation, no matter how unfounded? Do you have a

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history of problems in the military, juvenile offenses, a criminal record (no matter how minor), credentialing problems in the past, and similar problems? You must be extremely candid with the lawyers about such facts at the outset. Belatedly surprising your attorney (e.g., for the first time while on the witness stand) is a major expert sin. 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, for instance, contradicts your present position, even if the issues are clinically or forensically totally different. Do your best to address this possibility early. Reviewing your own published work in a particular area is a worthwhile part of your preparation. If you write a lot, you realize that the more you write, the more words you might have to eat on cross-examination. Similarly, are there cases in which you have testified on behalf of the other side, have taken an opposite position or opinion, or have been retained by one side more than the other? Review this with the attorney. 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.

Time, Fees, and Other Embarrassments A judge in a recent case had this to say about experts: It has been the experience and observation of this court that in all the medical malpractice trials over which it has presided, the ultimate beneficiaries, in an economic sense, are truly the physicians who demand and usually obtain exorbitant compensation for their testimony [sic] as expert witnesses. .. .In too many medical malpractice cases, unfortunately, the Hippocratic Oath has been supplanted by opportunism and greed by those who participate as medical expert witnesses. (1)

This quote is interesting from several viewpoints. As is often the case, attorneys are invisible within the court record; for example, the court record chidingly notes, “Smith failed to plead . . .” when everyone, including the speaker, knows that it was Smith’s lawyer who was derelict. Thus, in the preceding quote, 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, who are the strangers in the courtroom. Second, the judge commits the technical error that yet captures perfectly the public perception: the experts are being paid for their testimony (i.e., they are all corrupt), not for their time and clinical expertise. This issue is further discussed later in this chapter. Finally, the invocation of the Hippocratic oath reveals the judge’s confusion about the treater-expert distinction: that oath applies to the treatment,

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

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a deposition, for instance, or for reading a one-paragraph letter. Then, when asked about your fees on the stand, you can calmly state them without guilt, shame, or other conflict. Urge your attorney to bring up your fees on direct examination to get it out of the way. How much work or time should you devote to the case? This depends on your schedule. Keep your vacations in mind, and give the dates to the attorney. If you don’t have enough time, don’t take on the case; it is unfair to your attorney. Beware of taking on so many cases that you do not have sufficient time and attention to pay to each one. 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. Owen Marshall, Perry Mason, the good folks on L.A. Law or Law and Order—these paragons would never think of failing to pay an expert’s legitimate expenses, but in my experience, failure to pay is reality. Many experts starting out in the forensic field do not bother with fee agreements until they are “stiffed” (i.e., defaulted on payment) by their first attorney. To novice experts, it comes as a surprise that it is not an ethical violation for an attorney to stiff his or her expert for a legitimate fee if there is nothing in writing (and in some cases, even if there is). I took my first major “stiffer” to court eventually and received some of my money; in addition, I reported him to the Massachusetts Board of Bar Overseers, the organization in charge of attorneys’ ethical issues, among others. That august body opined that this was not an ethical problem but a business issue or a contract issue; they referred me to small claims court. Standard and detailed fee agreements are supplied in Appendixes 2 (“Standard Fee Agreement”) and 3 (“Detailed Fee Agreement”), respectively, at the end of this book; when you design your own fee agreement, you will discover that every subordinate clause in each new version will be poured out in blood from your previous failure to anticipate duplicity by some attorney. Ethically speaking, your fee should never be contingent; you are charging for time regardless of the outcome of the case. The attorneys, of course, are free to employ contingent fees, but your consultation must be free of investment in any form in the outcome of the case. It should, ideally, be a matter of indifference to you who wins a case—a posture often difficult for the novice expert to grasp. You give only testimony. You sell only time. Refuse any other arrangement.

Roles of the Expert What exactly will be your role in the case at hand? Experts may be retained for a range of legitimate, basically consultative services, some of which never

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lead to the courtroom. You simply may be a consultant to the attorney on the merits of the case at the outset. You may be needed to evaluate a plaintiff (or a defendant, for that matter). You may consult to the attorney on matters of clinical reasoning to determine whether the complaint makes clinical sense. You might advise the attorney on how to cross-examine the other side’s experts or litigants. You may provide rebuttal material for use by others. You may play some combination of the foregoing roles or all of these roles and then serve as expert witness in the courtroom. The exception would be the expert whose consultation to the requesting attorney is intentionally partisan in strategizing the case; that role would be ethically incompatible with the objective testifying role. Do one or the other. Will you be expected to testify at trial, or is the matter likely not to go to trial? Are you going to be a reporter, that is, someone who has to generate a written report, or will your opinion be used by the attorney to strategize without a report, 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. If you are, at some point, going to testify, is a tentative trial date known? How do your vacations fit in? This information allows you to allot more time and spread your cases so that you are not testifying on consecutive days for different cases—the expert’s nightmare.

The Final Decision Putting together everything that you now know—what you charge, what your time permits, what your skills or knowledge support, how you feel about the attorney, how free from bias or conflict the situation is—finally ask, 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, rarely, an individual client. As a rule, working for the attorney or insurer is a far better idea than working for the client alone. Among other things, your consultative, nontreatment role is clearer. Moreover, your attorney, as a professional, is more accountable.

The Stage of Case Review Let us assume you have agreed to take the case and that the retaining agreements are in place. The usual next step begins with your receipt of written materials on the case, often in orange-crate–sized lots. In other cases, your first task might be an evaluation of plaintiff, defendant, testator, or even witness. Which comes first boils down to a matter of individual preference.

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Some experts favor the unbiased (and perhaps uninformed) first look at the examinee after having read only the complaint, followed by review of the documentation; 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). Scheduling considerations may determine the first task; it may be easier to clear 3 hours for an interview than 6 hours to review a chart. In any case, the next task is clear.

Is the Case Valid? The Threshold Question The first question posed to the expert because of the very nature of your consultative role is, 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, attorneys would call you only for ironclad solid cases in which they have every confidence. In reality, the attorney may be employing you in a desperate attempt to clutch at some faint hope; for that matter, you may be the ninth expert the attorney has consulted, though you would not necessarily know this. There is nothing inherently wrong with this desperation, because the attorney is obligated by ethical concerns to exert every effort to represent a client zealously and vigorously, including by obtaining expert consultation. However, the emotional pressure of the attorney’s desperation should not alter your objectivity.

Does the Attorney Have Merit? The clear majority of attorneys are unquestionably competent and ethical; the minority are the ones who pose the problems. Regrettably, you must ask the question, does the attorney have merit? As a rule, you should determine what kind of attorney you will be working with: is this someone to whom you wish to be linked, even in a consultative sense? In the initial telephone call, I recommend listening for indexes of venality, a tendency to assume you will give the “desired” opinion no matter what the material shows, or a tendency to want to withhold information. Two of the most powerful red flags that warn you to divest yourself of this relationship are lying and arguing. The point is perhaps an obvious one, but one of the best indicators about the integrity of retaining attorneys is whether or not they lie to you. For example, I was once retained to perform an independent examination of a patient who was considered for involuntary commitment, in relation to which, of course, his dangerousness was the crucial issue. The attorney presented the case to me by telephone, stating that the patient’s dangerousness flowed from his being charged with slashing tires, a behavior that certainly did not seem all that threatening, compared with some other behavior. On perusing

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

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

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The “I’ve Got Nothing” Problem Although you prefer to work on a case in which your opinion is robustly supported by the database, a situation sometimes occurs that requires special mention. This ethical dilemma arises when the attorney says, for example, “Look, I think this guy is probably not insane, but I’d like you to do this evaluation on him anyway, because I’ve got nothing. He was photographed doing the crime.” It is perfectly appropriate for the attorney (who is obligated zealously to defend the client) to request your aid as long as he or she levels with you about the facts, but you have to make your own ethical decision about the circumstances under which you as a forensic expert should take on a case in such an “I’ve got nothing” scenario. Either undertaking or turning down such a case is a defensible position; it is up to you. However, you should consider some important points. First, 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, even data of dubious validity. This problem is a variant of a countertransference issue, if you will, directed not toward the patient or examinee but toward the attorney. Forensic countertransference is further discussed in reference 2. Second, after your report, 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. Referral to another or an additional expert also may be indicated.

Reviewing Cases Critically When the attorney sends you a crate of records and you review them, check the documents you receive against the cover letter to be sure you have everything you should. As you go through the documents, develop a list of documents that need to be supplied and devise a way to check these off once you have received them. I have found that attorneys for some reason often fail to send the exhibits to depositions; long pages of deposition testimony drone on about the exhibit, but you can only imagine it because the actual document has not been provided. My own approach is as follows; feel free to use it if it suits your own preferences. In general, I find it helpful first to read the complaint so that you know what the basic issues are. As you read the complaint, look critically for claims, facts, and connections that can be checked against the primary record data and flag those in some way; you are creating a checklist, each element of which may be confirmed or disconfirmed by other material in the database. Recall that a plaintiff can claim anything at first.

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Second, I read the medical records and clinical material or the equivalent; third, the depositions or witness reports. The logic of this procedure in terms of shaping your thinking is to start with what is being complained of (civil) or questioned (e.g., insanity in a criminal context), then to check the record to determine whether the complaint or issue has any validity, 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). At this point, you also may want to review relevant literature on the subject, including your own. I strongly recommend reading large chunks of material at a single sitting, no matter how difficult the scheduling might be. 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. Given the complexity of many psychiatric malpractice cases, you may find it worthwhile and cost-effective to create timelines for various events occurring during the same period; you may also request that the attorney’s office create the timeline, perhaps by a paralegal. This permits, for example, matching medication changes to symptom reduction or an increase in social withdrawal to assessed suicide risk. A laptop computer for this task may be quite helpful.

The Interview After reading the materials, if you have not already done so, you will want to interview the plaintiff, the defendant, the testator, the witness, or whoever is involved in the case (presumably, you are familiar with basic interview approaches). Note for completeness that some experts like to start by examining the litigant first, cold, or with only the complaint reviewed. Doing so provides a potentially valuable tabula rasa on which examinees may write what they will; your interview queries would thus arise directly out of the material. Such an examinee-first approach, however, makes it harder to focus on hot spots of the case or areas of contradiction in the database. Some discretion, advance screening, and selection of a safe environment may be required for examining potentially dangerous examinees. It is probably wisest to allocate several hours for an initial examination and smaller blocks of time for later follow-up. The attorneys on either side of the case may limit the interview time available; exert every effort through your attorney to obtain enough time to do an adequate examination. If the appropriate amount of time for your examination cannot be obtained, accept it as a limitation, and be prepared to acknowledge this constraint as a limitation on the data.

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

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selves verbal permission to record) and attempt to have the attorney or paralegal sit silently out of vision (e.g., behind the examinee). If the attorney attempts in any way to cue or coach the examinee, warn once; a second offense should lead you to terminate the interview and report this interference to your retaining attorney. I must urge the expert examiner to be alert for signs of coaching of the examinee by the attorney. This subject is addressed extensively elsewhere (3), but the following vignettes make the point clearly: For example, in the unpublished 1996 case of Lailhengue v. Mobil, a mass tort in Louisiana, a psychiatrist interviewed plaintiffs with an attorney present, and gave them copies of the post-traumatic stress disorder (PTSD) criteria from the DSM-IV to review prior to a second meeting....An attorney in Los Angeles was overheard telling his clients that he was not suggesting that they lie, 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... .Attorney Larry Cohen (personal communication, March, 1997) at the University of Michigan Law School reports that some attorneys consider it part of attorneyclient privilege to instruct the client to deny that the coaching ever took place. (4, p. 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. The following are four of the principles that I apply as a generic framework for this purpose.

Plausibility The first question to ask of the case, be it civil or criminal, is whether the case is fundamentally plausible. Do the deviations from standard of care sound hokey, as when the complaint boils down to, “I could tell by the expression on my doctor’s face that he was having sexual thoughts about me, and I want to sue him,” or when a defendant with no history of mental illness whatsoever is advancing a case for legal insanity based on, “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, 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, distortion, and so on?

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“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, 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, observations, 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, a patient claimed to have been sexually molested during a particular time and date in her psychiatrist’s office. She had apparently established these referents by calling the office and receiving no answer; she assumed the doctor was not present and could not refute her claim. As it turned out the doctor was catching up on paperwork and had turned off his beeper and ignored incoming calls; however, he had made several outgoing calls during the time period of the alleged molestation. The phone records aided in challenging the claim by providing a time stamp.

Alternative Scenario In the film The Great Train Robbery (Crichton M, MGM/UA, 1978), about the historic English crime, the following dialogue occurs between the trial judge and Edward Pierce, the defendant and chief planner of the robbery: Judge: On the matter of motive we ask you: why did you conceive, plan and execute this dastardly and scandalous crime? Edward Pierce (a pause while he thinks it over): I wanted the money.

This excerpt warns the forensic witness to consider the possible scenario of a crime that does not involve a psychiatric component. The notion of the alternative scenario can be essential for assessing civil claims, such as sexual misconduct, or for some criminal claims of insanity, as well as disability evaluations and similar tasks. If the situation did not occur in the manner claimed, how might it have occurred alternatively? Is there another way of explaining what happened, the outcome, or the alleged damages? For example, 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, all of the foregoing questions can be kept in mind to aid in probing each case as you examine the database. Finally, remember not to offer any treatment or treatment recommendations to your examinee, even if asked to do so or tempted by medical ne-

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cessity as treatment issues emerge in the interview. The relationship is not a medical one, and treatment offers are inappropriate.

Fitting Together the Interview Commonly, in both civil and criminal cases, you will interview the subject (plaintiff, defendant, and others) as part of your exhaustive review of the database. You will be challenged to weave interview data into the totality of the case, and you must keep several issues in mind. First—you can’t be reminded of this too often—is warning the examinee about nonconfidentiality, as noted early in this text. Other warnings, such as informing the examinee which side has retained you, seem to be called for out of fundamental fairness to your examinee. The following is an extended review of warnings that I give to examinees (you may want to craft your own) just after “hello, please sit down” but before anything substantive has been said: Before we start, there are some things I need to inform you about. First, unlike what you may be familiar with from other doctors or therapists, what we talk about here is not confidential because I am not your treater; what you say may come out in a report, in a deposition, or in an open courtroom, possibly with reporters present. Second, I have been retained by (your side, the other side of the case, the court), but since I can only be useful if I am objective, my testimony may help your case, hurt your case, or have no visible effect on your case—only time will tell. Third, you can ask for a break (water, restroom) at any time. And finally, you do not have to answer any of my questions, although I hope you will do so, and if you do not, I am entitled to make note of that. Do you have any questions about what I have told you so far?

If the person has questions, answer them as best you can; if not, move on to the substance of your interview. Note the fully intentional structural resemblance of the above paragraph to informed consent; compare the consent form in Appendix 1. As you are interviewing the examinee, you are attending to his or her demeanor and its relation to credibility. Is the patient convincing and plausible? Do the words match the music; that is, 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, recall that anyone can really be fooled. I remember a particular case of alleged sexual misconduct in which the plaintiff on interview absolutely convinced me with every single word she said. Her emotions were strong and appropriate to the content; she had plausible answers for all my questions. Only when I subsequently read her deposition did her entire

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case fall apart. Besides serving as a valuable lesson in humility, the case was highly instructive: interviewees can be extremely convincing, especially when they themselves, because of their psychopathology, believe deeply in their position. Remember the ancient received wisdom: if you are dealing with a classic psychopath and you think you are not being conned, it only means that you’re being conned into thinking that you’re not being conned.

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

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were of a particular deviation, event, or incident; what the results were of subsequent events; and what the exacerbations were of preexisting conditions. A familiar example is the case in which a plaintiff has been the survivor of severe sexual abuse in childhood with consequent symptoms, then is sexually abused by a treater, and then has other symptoms or more of the same symptoms. Or, consider a veteran of combat with posttraumatic stress disorder from wartime experience who is injured in an automobile accident sometime later. What portion (usually, 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, work by Pittman and Orr (5) on differentiating serial trauma shows promise, although it has not yet gained broad enough acceptance to be generally admissible as evidence. These authors have devised a psychophysiological test protocol that offers some hope of distinguishing among traumas. 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. Even if a case seems “over,” there may be subsequent posttrial motions, appeals, mistrial claims, and so forth that require revisiting the materials. If you are discarding case materials, two major approaches apply: 1) shred or have a reputable company shred the paperwork; or 2) return the materials to the retaining agency. Another good rule is to discard, with permission, all case materials except your reports, if any, and your interview notes; keep the latter indefinitely, because they would be hard to replace. In addition, they may serve you to recall the case at a later point for research or publication purposes.

References 1. 2.

3.

Kirby v Ahmad, 63 Ohio Misc 2d 533 at 534, 1994 Gutheil TG, Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington, DC, American Psychiatric Publishing, 2002 Gutheil TG: Reflections on coaching by attorneys. J Am Acad Psychiatry Law 31:6–9, 2003

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First Principles 4. 5.

6.

Lees-Haley PR: Attorneys influence expert evidence in forensic psychological and neuropsychological cases. Assessment 4:321–324, 1997 Pittman RK, Orr SO: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Bull Am Acad Psychiatry Law 21:37–52, 1993 Bursztajn HJ, Feinbloom RI, Hamm RM, et al: Medical Choices, Medical Chances: How Patients, Families and Physicians Can Cope With Uncertainty. New York, Routledge, Chapman, & Hall, 1990

Suggested Readings Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the Law, 4th Edition. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Borum R, Otto R, Golding S: Improving clinical judgment and decisionmaking in forensic evaluation. J Psychiatry Law 21:33–76, 1993 Deaton JSD: Toward a critical forensic psychiatry. J Am Acad Psychiatry Law 31:232–238, 2003 Group for the Advancement of Psychiatry, Committee on Psychiatry and Law: The Mental Health Professional and the Legal System (GAP Report 131). New York, Brunner/Mazel, 1991 Lees-Haley PR, Williams CW, Zasler ND, et al: Response bias in plaintiffs’ histories. Brain Injury 11:791–799, 1997 Resnick PJ: Malingering of posttraumatic stress disorder, in Clinical Assessment of Malingering and Deception, 3rd Edition. Edited by Rogers R. New York, Guilford Press, 2008, pp 84–103 Rogers R: Clinical Assessment of Malingering and Deception, 3rd Edition. New York, Guilford Press, 2008 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. J Psychiatry Law 24:3–25, 1996 Wettstein RM: Quality and quality improvement in forensic mental health evaluations. J Am Acad Psychiatry Law 33:158–175, 2005

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CHAPTER 4

Types of Typical Cases TO ILLUSTRATE SOME of the principles highlighted in preceding chapters, in this chapter, I provide several examples of cases—and some of the nuances unique to each type of case—that illustrate and clarify the spectrum of the expert’s work. The discussions within this chapter should be considered an introductory survey.

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

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

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

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

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

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

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

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Although the more information gathered, the more helpful it would be in forming your opinion, it is inappropriate to call or write directly to the opposing attorney, litigant, 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, 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. These unethical conversations usually have an informal tone: “So, Doctor, what do you think about this amazing case, eh?” Presumably, you are lulled by this informal, friendly approach into letting your guard down and discoursing freely on your opinions, your attorney’s confidential trial strategy, and so on. The appropriate response is, “I think you should talk to the retaining attorney.” Attorneys who push this issue should be reported to their local bar association’s ethics committee. Because of the flow of material and its often fascinating content, while reading a deposition, you can be drawn into the prose by the unfolding drama therein recorded. To read critically, exert the effort to stand back from the process, weighing the logic of the deponent’s responses.

Criminal Responsibility Cases In cases of criminal responsibility, you may confront the classical poles of the issue, namely, a case wherein the defendant had or has a major, credible mental illness (and therefore a likely defense) versus a case with none of these qualities, but for which application of the insanity defense represents a desperate attempt by the attorney because all other defenses are precluded. The truly challenging case lies between these extremes. For example, you may have a palpably mentally ill individual whose illness still does not meet the statutory criteria, or you may have an apparently mentally healthy individual whose subtle disorder impinges precisely on the requisite capacities. In those jurisdictions where the issue exists, remember to consider diminished capacity as an intermediate condition. Out of the entire panoply of available material on a criminal responsibility case, data gathered at the time of the alleged act, in my (and almost everyone’s) view, are the most significant. These would include witness and victim reports, statements of the arresting officers, and records of any treating clinicians from points close in time to the alleged acts. Of second-rank importance, but still relevant, is historical material, especially that which establishes the presence of persistent and relevant patterns of behavior or disorder. Is this defendant someone who seemed to show

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for the first time the presence of schizophrenia at age 54 just after he or she committed the bank robbery, or did he or she have a long history of mental illness with recurring hospitalizations and delusional symptoms that relate directly to the alleged act? Recall that mental illness may bear a wide variety of relationships to crime: a factor in responsibility, the cause of the crime, the result of the crime, an unrelated accompaniment to the crime, and so on. Finally, although mandatory and irreplaceable, 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. 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. All the interview data must be fitted to the totality of the database, as with all forensic evaluations (6). Because of the seriousness of criminal penalties, malingering is especially common and problematic in this assessment. The novice expert should become familiar with useful publications on the subject (7,8). Courses on detection of malingering are offered at national meetings of the APA and the American Academy of Psychiatry and the Law.

Evaluation of Emotional Injuries In contrast to the interview for a criminal responsibility case, I find the interview for an emotional injury case to be of primary value. Nothing but the interview can give you a feeling for the malingering dimension and the selfserving aspects of the patient’s claim. The interview also gives you a chance to assess what might be called a sense of proportion. 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. This issue of proportion is a common pitfall for the novice plaintiff ’s expert, who may be tempted out of sympathy for the injured examinee to extend damages excessively from a limited injury. In one case, for example, a plaintiff drank from a chemically contaminated bottle and burned his mouth, an injury from which he recovered rapidly without lasting effect. The plaintiff ’s expert opined that being burned by an ostensible cooling drink had shaken the plaintiff’s faith in a benign universe. Although plaintiffs have an obligation to mitigate (reduce or ameliorate) their damages, a surprising number of individuals avoid treatment, some on

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

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knew this because, without warning, the heat abruptly went on with a loud “WHOOOMPP!” making a considerable racket right next to our chairs. I myself jumped in my chair, but I couldn’t help noticing that my allegedly startleprone examinee sat quietly in his chair.

This observation was potentially valuable and worth recording. It is, of course, not totally probative, because the examinee clearly might have been more accustomed and therefore conditioned to the noise of the heat going on, yet the observation is valid; the jury ultimately decides. The Case of Cockroach Harm Can infestation by cockroaches be a trauma? At low levels, usually not, but at incredibly high levels, perhaps so. One of my cases raised this issue. An apartment dweller sued her landlord for failing to respond to the infestation. A powerful factor in the assessment was a series of photos of the hordes of dead vermin lying about after the apartment in question had been gassed—a picture that was highly convincing.

The Story of the Stoic Fisherman This case addresses the question of whether all traumas are traumatic. In a famous incident, an airplane skidded on an icy runway and broke in half at Boston’s Logan Airport; the nose of the plane fell into the harbor. A passenger from that plane came to me for an examination in relation to a lawsuit for emotional injuries against the airline. This passenger, it turned out, had been in the front row of seats just behind the break in the plane. He was strapped into his seat, and, looking straight down past his toes, he saw a jagged metal edge and below that edge, Boston Harbor with freezing, dying, fellow passengers. On the surface of his story, it seemed to me that this incident would induce PTSD in a stone statue; therefore, the case certainly seemed meritorious in theory. On detailed examination, however, the former passenger was revealed as a serious, unimaginative, stoic fisherman, who, on careful inquiry, had no signs of trauma whatsoever. He slept like a log, ate like a lumberjack, and did not dream. He gave the impression on interview that if you fired off a .357 Magnum close to his ear, he would have said calmly, “What was that noise?” I had to explain to his baffled attorney that I found no evidence of damages. This case also illustrates the maxim, don’t assume—examine, to get the actual data.

High-Profile Cases At one point or another, you may be asked to review a case that has been extensively covered in the media before you have been retained; that is, the alleged malpractice, injury, or crime has generated publicity first, then you get the case. There is a fundamental asymmetry about media coverage in almost every case, which the average member of the public really doesn’t understand. Initially, the plaintiff or prosecutor can say anything. As the “moving

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parties,” the attorneys have to create the case from scratch; there is no case until it is brought. Some attorneys may try, consciously or unconsciously, to influence the public powerfully in advance, in hopes that some of that public will later become jurors. A plaintiff can say to the media, for example, “McDonald’s has an obvious duty to weld on the covers of coffee cups with Krazy Glue so that people can’t hold the cups in their laps, rip off the covers in moving cars, and spill hot coffee over their thighs and sue McDonald’s.” In another case, 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. None of this trumpeting means anything, of course, until it is proven in a court of law, but this principle may be readily overlooked in a media frenzy. In short, plaintiffs and prosecuting attorneys can create any possible scenario they think they can prove. Ninety-nine percent of the time, however, the defense attorneys cannot answer the media’s questions. The defense attorneys must say “no comment” each time, because they don’t want to give away trial strategy. This response creates asymmetry whereby the plaintiff and prosecutor totally dominate the media, pushing the case for all it is worth. By doing this, the plaintiff and prosecutor inevitably bias the public’s perception. Even though you may try to tune out the media, you simply may be reading your newspaper before you are asked to consult on a case. Therefore, you have to be alert to this potential biasing factor and be aware of the media asymmetries, lest your review should begin with a one-sided perspective.

Spotting the Other Side’s “Hired Gun” The hired gun problem is a cross borne by the forensic professions, as is outlined in Chapter 1 (“Introduction: What Makes an Expert?”) in this book. 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). Does advertising your services in Lawyers’ Weekly automatically make you a hired gun? This controversial question skirts perilously close to a matter of guilt by association. Probably a certain number of totally ethical people do advertise in Lawyers’ Weekly, but so do a number—perhaps a greater number—of venal witnesses, selling testimony instead of time. (Chapter 9, “Developing and Marketing a Forensic Practice,” in this volume provides more reliable methods of publicizing your practice.) Another stigma of the hired gun is the counsel of perfection. In malpractice cases, for example, the standard references the average reasonable

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

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION Examining attorney: But does the standard of care require that this patient be restrained? Hired gun witness: I’ve already answered that.

That was the answer in toto. Is that a yes or a no? In fact it is neither—it is a waffle, and that is frequently the hallmark of the hired gun. Getting the feel for how the waffle works takes a certain amount of reading of case material. 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], he should have been [that is, the standard of care required that he be] involuntarily admitted to a hospital before [month] of [year]? Answer: It is my opinion that one of the possibilities that should have been seriously considered would have been an involuntary hospitalization. It certainly should have been considered. I am not in a position to tell you that that would be the only choice.

Note how that witness actually avoids responding; “should have been seriously considered” is not an opinion that commitment in this case was a required action under the standard of care. Also note that the failure to consider a valid option indeed may constitute negligence, but that is the answer to a different question. In the following example, a patient had escaped from the hospital, then committed suicide. The plaintiff ’s expert answers the query as to the bases for his opinion that treatment was below the standard of care. The entire answer took four full deposition pages, but this excerpt is representative: The standard of care in my professional opinion was breached in that once the patient left, the mental state and what’s gone on in that patient’s mind is very uncertain, that this is a patient with some history of a, a reasonable history, actually, of unpredictability; he gets frightened, he has taken in despair 10 lithiums some years back, took some blood pressure pills one time in [city], goes all the way to [another city], we don’t know whether he stops or doesn’t stop and get [drug] or not, but, specifically, there is a lot of despair and a great deal of thought disorganization in the patient, and where I believe the standard of care was breached was that the patient, an emergency petition ideally would have been, reasonably would have been, rather than ideally, 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, an hour before that or less signs a 3-day statement and then just disappears.

Note that this entire chunk of testimony is one run-on sentence; parsing its grammar would be an excellent torture for an evil grammarian consigned to hell. More to the point, it seems nearly impossible to extract the actual opinion from the thicket of prose.

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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, which makes sure the patient is safe within a structured environment, and that includes they would be safe within or without the community, because the treatment will eventually take place if it can at all within a less restrictive alternative that is community based, but that doesn’t mean that it’s without supervision.

In fairness, we must consider another possibility regarding the above examples. I would prefer never to assume malice when incompetence would serve as an alternative scenario. Conceivably, we may be dealing with an incompetence issue, whereby the deponents simply do not know how to focus on a forensic question and then articulate a coherent or comprehensible response. Yet, for better or for worse, a trend of such waffling answers in deposition does set off my hired gun detector. Finally, note that one cannot, with impunity, refer to another expert as a “hired gun” outside of a private conversation with one’s retaining attorney.

References 1. 2. 3. 4.

5.

6.

7.

Gutheil TG, Bursztajn H, Brodsky A, et al: Decision-Making in Psychiatry and Law. Baltimore, MD, Williams & Wilkins, 1991 Fischhoff B: Hindsight, foresight: the effect of outcome knowledge on judgment under uncertainty. J Exp Psychol 1:288–299, 1975 Tversky A, Kahneman D: The framing of decisions and the psychology of choice. Science 211:453–458, 1981 Gutheil TG, Bursztajn H, Brodsky A: Subjective data and suicide assessment in the light of recent legal developments, I: malpractice prevention and the use of subjective data. Int J Law Psychiatry 6:317–329, 1983 Bursztajn H, Gutheil TG, Brodsky A: Subjective data and suicide assessment in the light of recent legal developments, II: clinical uses of legal standards in the interpretation of subjective data. Int J Law Psychiatry 6:331–350, 1983 Gutheil TG: Assessment of mental state at the time of the criminal offense: the forensic examination, in Retrospective Assessment of Mental States in Litigation: Predicting the Past. Edited by Simon RI, Shuman DW. Washington, DC, American Psychiatric Press, 2002, pp 73–99 Rogers R: Clinical Assessment of Malingering and Deception, 3rd Edition. New York, Guilford Press, 2008

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8.

Gothard S, Viglion DJ, Meloy JR, et al: Detection of malingering in competency to stand trial evaluations. Law and Human Behavior 19:493– 505, 1995 9. Gutheil TG: Preventing “critogenic” harms: minimizing emotional injury from civil litigation. J Psychiatry Law 28:5–18, 2000 10. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric experts. Legal Studies Forum 9:41–53, 1987 11. Gutheil TG: The problem of evasive testimony: the expert “waffle.” J Am Acad Psychiatry Law 35:112–117, 2007

Suggested Readings Binder RL: Sexual harassment: issues for forensic psychiatrists. Bull Am Acad Psychiatry Law 20:409–418, 1992 Gutheil TG: A confusion of tongues: competence, insanity, psychiatry and the law. Psychiatric Services 50:767–773, 1999 Gutheil TG: Fundamentals of medical record documentation. Psychiatry 1:26–28, 2004 Knoll J, Gerbasi J: Psychiatric malpractice case analysis: striving for objectivity. J Am Acad Psychiatry Law 34:215–223, 2006 Simon RI: Post-Traumatic Stress Disorder in Litigation, 2nd Edition. Washington, DC, American Psychiatric Press, 2003 Simon RI: Standard-of-care testimony: best practices or reasonable care? J Am Acad Psychiatry Law 33:8–11, 2005 Simon RI, Gold LH: Textbook of Forensic Psychiatry: The Clinician’s Guide to Assessment. Washington, DC, American Psychiatric Press, 2004 Slovenko R: Legal aspects of post-traumatic stress disorder. Psychiatr Clin North Am 17:439–446, 1989 Stone AA: Post-traumatic stress disorder and the law: clinical review of the new frontier. Bull Am Acad Psychiatry Law 21:23–36, 1993

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, if any, there is the period known as discovery. Attorneys probe and define the limits of their cases, preparing for what to expect from the various witnesses and documents. Note that some jurisdictions practice “trial by ambush” without expert discovery, whereby the other side learns for the first time who is serving as the expert only when that individual is called to the stand. Paralegals in those locales may call all major hotels the night before the trial to check on some likely names. From the viewpoint of the expert, the two most common mechanisms for the other side to discover projected expert testimony are interrogatories and depositions.

Interrogatories Interrogatories as part of the discovery process are written responses under oath to a series of often standardized questions from the other side that may be used to elicit the names of witnesses and parties to a legal proceeding and an outline of what they might be expected to say. Under some circumstances, 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. In both cases, the attorney will likely write the actual prose of the 57

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answers for you, the expert, guided by your input as to what you expect to testify to at trial. Novice experts are sometimes tempted to regard this step as a mere formality and to pay it little heed, reasoning that they can always modify their opinions at trial when the right questions are asked. However, the interrogatory is sworn testimony, and an opposing attorney may make a major issue out of any deviation between your trial testimony and what your interrogatory disclosure states that you will say. The obvious prophylaxis and remedy is to attend carefully not only to the content of what your lawyer puts down as your expected testimony but also to the specific choice of words being used. It is critical that everything in your interrogatory be something that you have already decided you are able to support, either from clinical evidence or experience or from facts in the database; read every such document before it is turned in. This approach saves you from having to retract misstatements on cross-examination. Resist any temptation to predict sweeping conclusions you might draw that go beyond your data; hyperbole hurts you. In addition, your attorney will advise you as to what requests for information or documents will be objected to or refused, based on his or her interpretation of the rules of evidence. For example, attorneys sometimes ask you for your tax returns of the last 5 years, to which they are not entitled (although they are usually allowed to ask what percentage of your income comes from forensic work) (1). Do not attempt to decide what is or is not objectionable yourself; that is an attorney’s function. On occasion, an ethically challenged attorney will provide the other side with your interrogatory opinions without reviewing them with you or, even worse, without retaining you at all. If you discover this to have occurred, I advise you to withdraw from (or refuse to take) the case; you do not want to be associated with this attorney. This is referred to as the “phantom expert” dodge and has a number of variations noted elsewhere (2); it is always unethical.

Depositions The second major area of discovery is the deposition. If you have never given a deposition or you feel a bit shaky about the procedure, review Chapter 5 in the companion volume to this book, The Psychiatrist in Court: A Survival Guide. Opposing attorneys usually follow one of three agendas, or some combination of the three: getting your opinion, obtaining admissions, and painting you into a corner.

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

Obtaining Admissions The second major agenda for the deposing attorney is to obtain from you, during the course of the deposition, admissions and concessions of points or

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views detrimental to the other (i.e., your) side of the case. The points may relate to guilt, competence, insanity, negligence, or damages—the entire gamut of forensic possibilities. Indeed, 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. Their rationale for this effort is that a jury may not be able to distinguish between is and sounds like. For example, A patient was committed because of threats, based on paranoid-sounding content, to kill coworkers. On arrival at the hospital, however, he denied to the admitting physician that he had any violent intent. His mental status was not particularly demonstrative of symptoms of mental illness, although the history, of course, raised many possibilities. In a wrongful commitment case against the hospital, the deposing attorney asked the hospital’s defense expert whether the mental status indicated the presence of serious mental illness. The answer was no. At trial, much was made of this testimony, even though it was the preadmission history, not the mental status by itself, that justified the admission.

Painting You Into a Corner The third common agenda for the deposing attorney is to paint you into a corner, conceptually, so that your opinion is constrained or limited in a way that decreases its impact. This procedure elicits sworn testimony, that is, under oath. You are locked in to that testimony. When you later give testimony in court, also under oath, any contradiction is obviously damaging to your credibility: “You swore this now and that then; what are we to believe, 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. 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, attempting to get you to describe what you would do rather than focusing on what the standard of care requires, and attempting to get you to authenticate quotes from your published articles as though the present case were governed by those excerpts.

Your Goals for the Deposition One scholar has described the witness’s goals as truth, fairness, and accuracy (3). Truth, of course, is the final standard. Fairness indicates the need not to distort or exaggerate on either side of the issue but to maintain balance. Accuracy addresses the clarity of your vision in relation to the known facts in the case.

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You should state that you want the written record of the deposition to do justice to your views, your opinions (and their limitations), and your planned testimony. For these reasons you ask in every case to review and sign the deposition transcript and note errors on the errata sheet. More details about this necessity are discussed later in this chapter.

Some Practical Points Time Considerations For most civil cases a competent attorney can obtain a perfectly suitable deposition in 2 to 3 hours, using the expert’s curriculum vitae to cover the credentials matters and moving right to the core elements of the case. Unfortunately, several factors urge clearing substantial blocks of time for deposition. A small number of attorneys attempt to wear down the expert by sheer passage of time, hoping that—as the expert tires—caution will slip and the expert will allow concessions to be made uncritically; this also takes a toll on the court reporter. 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, hoping to hit the key points if only by accident. Still others, aware of the serious weakness of the substantive aspects of their case, will spend hours inching through the expert’s credentials, looking for dirt before even addressing the instant case. The expert should clear a full day for the deposition to be on the safe side; if more time turns out to be required, another deposition date can be scheduled. As noted on the fee agreement in Appendix 2 (“Standard Fee Agreement”), however, requiring a 2-hour fee in advance may encourage some opposing attorneys to try to fit within that limit.

The Need for Concentration The concepts previously mentioned should make clear that a deposition is not a mere formality to be gotten out of the way and over with. Rather, it is an essential part of the evolution of a case and thus your role in it. To do your job, you must be rested, focused, alert, and vigilant at all times. Occasionally, as noted above, an attorney will turn the deposition into an endurance contest to try to beat down your opinion by having fatigue erode your concentration. Prepare for this. Get enough sleep the night before the deposition, try to eliminate distractions, and insist on your freedom to take breaks as frequently as you need to maintain your attentive edge. Beware of the natural tendency to dissociate during droning questioning over prolonged periods. If you do not go home after a deposition feeling tired and drained, you were probably not paying sufficiently close attention; intense concentration sustained over hours is hard work.

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Listen to the Question Make sure the question you are answering is the one you were actually asked. If there is the slightest doubt, ask to hear it again or have it read back. If the question is compound or complex, ask that it be broken down. On rare occasions, you can give a useful compound answer to a compound question, but it is quite risky and may compromise clarity. The following example illustrates that you may be playing with fire when offering compound answers: Question: Now, 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, in order to determine competence, they have to enter into a dialogue with their patient, that this is one of the ways in which you go about determining competence? Is that your testimony? Answer: Well, let me answer all three components. First, yes, it is serious. I am serious. Second, the capacity to enter into a dialogue is considered by the Program in Psychiatry and the Law, which I codirect, to be an appropriate way of determining competence in the clinical situation. And the third part of your question is, yes, 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.

Note, in the following example, the subtlety of the have-you-stoppedbeating-your-wife dimension of the dialogue. The case involved a sudden brutal murder of a staff member by a patient who gave no advance indicators or warnings whatsoever. Question (attorney for staff member): Knowing what we know today, can we agree that on [date of murder] you did not have a clear understanding of [patient’s] propensity for violence? [Questioner assumes there was a propensity in the patient—a hindsight view—hence, the case manager’s lack of understanding might be negligent.] Answer (by case manager): I don’t think I would agree with that, no. I don’t—I wouldn’t agree with you there. Question: So, it’s your testimony that on [date] you did have a clear understanding of [patient’s] propensity for violence [and therefore are negligent because you did nothing about it]?

By imputing to the patient a hindsight-based propensity for the violence only now known to have occurred, the questioning attorney bypasses the critical issue of assessment and hangs the witness on the horns of an unresolvable dilemma: you didn’t know, so you were negligent, or you knew and didn’t act, so you were negligent. A more effective answer might have been, “The patient gave no sign, warning, or evidence of a propensity for violence; therefore, his act could

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neither be foreseen nor be prevented.” Note how the question is incorporated into the answer so that the answer stands alone and is difficult to quote out of context. Obviously, the witness should decline to answer yes or no to such a question. The following excerpt of testimony given by a naive fact witness, testifying 5 years after a suicide, reveals the hazards of too effusive, too discursive, and too extensive an answer to deposition questions. Question: Did you observe [patient] attending those meetings, or did you make that entry based on information given to you by others? [These are, of course, not the only possibilities.] Answer: Gee, I sure hope I saw him because I usually don’t write things unless they are true. [This is not an answer to the question. It is unlikely, 5 years and hundreds of patients later, that the witness specifically remembers such a detail; the answer, “I don’t recall,” would be perfectly okay. In addition, making a chart entry based on what you were told by other staff —for example, from a previous shift—is universal practice. But this witness has set a standard for herself: “hope for truth.”] Question: Is that the procedure in which you make notes; you write down what you have observed, not what others have told you? [The attorney tightens that very screw.] Answer: Right, right. Gee, any good nurse does that. [The witness sets her own standard of care, which might be used against her nursing colleagues. Her answer ignores the fact that the record does not always note the source of the clinical data.]

Yet another deposition tactic is what I call gerrymandering the data. The gerrymander was a mythical beast from a political cartoon about cutting up voting districts into tiny pieces to manipulate election patterns. Clinical data also can be cut into discrete segments to attempt to refute, challenge, or weaken certain conclusions (4). For example, a patient with apparent bipolar disorder challenged an involuntary commitment. When seen, the patient manifested rapid press of speech, vulgarity, social obnoxiousness in various ways, paranoia, and grandiosity; moreover, a psychiatrist friend of the patient reported to the physician that she had long tried to get the patient treated for bipolar disorder. The deposing attorney inquired, “Does speaking fast mean you have bipolar disorder?” Each microsymptom was examined similarly but separately to show that any one symptom, in a vacuum, did not constitute sufficient evidence of bipolar disorder (although, of course, the totality of symptoms did so). Note that an excellent and self-contained answer to such a question or line of questions is, “In a vacuum, no.” This answer responds directly to the question at hand but preserves the conclusion that the total gestalt made the diagnosis, not the individual element.

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The Pregnant Pause After the question is asked, pause a moment. Pausing allows you to replay the question in your head and to think about your answer. The pause also allows other attorneys to object, instruct you not to answer, insist on a time frame, and so on. Also remember to listen carefully to the objection; your attorney may be trying to call your attention to something, or you might infer something useful from the type of objection posed. If your attorney says, “Objection, lack of time frame,” reflect a moment on why the time frame might be important in relation to that particular question.

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

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it on the record. To err is human, but leaving the error on the record means having to retract it on cross-examination. Baker makes an excellent point about the precision of an answer in the following excerpt: The opposing lawyer may ask: “Doctor, have you [a radiologist] ever seen an X-ray fracture like this one?” The radiologist knows that every fracture is slightly different. Therefore, he could accurately answer in the negative. However, this would permit the opposing attorney to infer that the witness was not qualified to testify concerning this type of fracture. Therefore, the doctor might answer: “Well, in all my years of practice I have probably seen between 400 and 500 fractures similar to this one, but I can’t say that any of them were [sic] precisely like this one, because no two fractures are exactly alike.” (3, pp. F8–F9)

Certain locutions that are perfectly acceptable in casual conversation are either problematic or downright damaging in the deposition setting. An inexperienced expert inserted into the deposition testimony these parenthetical musings: “To be honest with you. . . . No, I tell a lie. . . .To tell the truth....If I said that, I’d be lying.” Of course, the entire deposition takes place under oath and under penalty of perjury. Therefore, these otherwise colorful colloquialisms must dismay the listener and raise questions about either the testimony or the seriousness with which it was delivered—both unfortunate concerns. As a deponent witness, you are not supposed to consult with the retaining attorney in the middle of a pending question because this raises the specter of coaching. Two points about this problem should be kept in mind. First, if you are concerned specifically about a matter of privilege that may govern your answer, most jurisdictions will allow you to raise that issue for advice from your retaining attorney before you answer. Second, you may at any point consult with your own personal attorney if you have any questions whatsoever about an answer; the deposition may be paused for that consultation. When in doubt, exercise this option. (The question of coaching is more extensively addressed elsewhere [5,6].)

When to Throw It Away In my consultative experience, 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; this may be phrased as when to throw away the “throwaway” questions. In a suicide malpractice case, for example, where you are retained by the defense, the deposing attorney may ask, “Doctor, would you agree that a patient’s sui-

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cidal ideation should be recorded in that patient’s record?” The answer is yes. Quibbling over the possible exceptions or equivocating in some way helps no one. Remember that the failure to write something down may be below the standard of care, but the lack of the note did not cause the suicide. When the answer is that clear, make the concession; throw it away, and move on. It is not the defendant’s negligence that is at stake in this situation but your credibility.

Blows After the Bell After a deposition has been going on for a while and you have maintained your concentration throughout, an attorney may look ostentatiously at his or her watch and say, “Just a few more questions, Doctor, and we’ll be done.” At that point, the novice witness relaxes and loses focus, thinking about dinner and work to do later. But the witness is also in danger of making concessions and giving poor answers to the subsequent slew of questions that the attorney, having inexplicably found his or her second wind, now begins to fire rapidly at the witness, still, of course, on the record. The moral here, in the colorful argot of the national pastime, is “It ain’t over till it’s over.” Wait to relax only after the stenographer has put away the machinery. Occasionally, an attorney, influenced by the TV show Columbo, may attempt to get some off-the-record insight literally in the doorway, not unlike some patients in psychotherapy whose doorway pauses—“oh, by the way, just one more thing”—contain vital material; but you know enough not to get involved in that “thing.”

The Silent Treatment The deposition tactic of the silent treatment draws upon the deponent’s good-faith wish to be responsive. The attorney asks a question, and you answer it. With an encouraging smile the attorney looks expectantly at you without saying anything. The naive witness experiences a pressure to say something—anything—to fill the increasingly uncomfortable void of silent expectation; this context can produce counterproductive babbling and misguided attempts to qualify to death a perfectly good previous answer. Subjected to the silent treatment, have some water, check your watch, wait until it gets ridiculous, then ask: “Did you have any further questions for me or are we through?” This will usually prompt the next query. Your retaining attorney may also get into the act.

Curious Questions The absence of a jury and of a judge to rule on the appropriateness of questions sometimes gives deposing attorneys the feeling of freedom to ask questions that might be disallowed by a judge or be seen as impertinent by a jury.

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Questions of morality and values—areas that are outside of forensic psychiatric expertise—fall into this category: “Doctor, 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). The only valid answer is that those questions are outside your area of expertise, and this response is perfectly appropriate. A surprising number of expert witnesses appear to have no qualms about tackling moral questions about which they have firmly fixed ideas; they often fail to realize that they do not have forensic evidence to back up those notions. Some questions are curious because the attorney appears to be flailing at, rather than asking about, the subject matter. Responding to such flails is a challenge: Question: In that case [of suicide in an alcoholic man], using categorization, if you’re grossly suicidal and you have access to guns and drugs and alcohol, 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... 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, that we can’t isolate ourselves with notions of “I’m not part of our society,” in a manner to ignore those feelings, those underpinnings? Isn’t that sensitivity what separates a real doctor from a phony doctor? Answer: Well, I find your question a little confusing, but I’m in favor of sensitivity.

Note how the first question was a total loss and had to be rejected completely. The answer to the second question illustrates a sometimes useful technique: extract that fragment of usable answer from the chaos if you can, and answer that part. This method sometimes involves carefully answering the question that the attorney should have asked; make sure you include the question in your answer on those occasions so that no one is misled. For example, “I understand you to be asking me...and the answer to that question is ...”

The Limits of Expertise Acknowledging the limits of what you can say constitutes one of the ethical benchmarks for the expert. No expert is expected to be an expert in everything or to remember everything; therefore, “I don’t know” or “I don’t remember” is a fully appropriate answer, as is “That is outside my area of expertise.” Avoid the narcissistic trap of “I can answer anything.”

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Deposition Demeanor The ideal demeanor for the deponent expert is only slightly different from that on the witness stand: calm, firm, clear, unfailingly polite, never losing your cool. The only vital difference is the way in which you speak. Because the stenographer (and not the jury) is your audience, you will be addressing him or her in slow, clear, careful speech that may be more formal, more technical, more pedantic, more boring, and far less friendly and instructional than it would to a jury. That is as it should be. As noted, clearing enough time for the deposition so that you are neither pressured nor distracted by external commitments or deadlines is important; this implies arranging coverage for your patients should a crisis occur. Your attitude should convey, “I can continue until midnight, should that become necessary.” This position of timeless patience puts the onus appropriately on the attorney to move things along. A situation that, fortunately, occurs rarely may throw the novice witness: a roaring fight between attorneys. The two sides, heretofore quiet and almost appearing bored by the proceedings, scream at each other, stand up in their chairs, threaten to go before the judge to plead their points, and demonstrate other regressive behavior. In one deposition, 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. Clinicians may be tempted to call on their clinical skills to temper violence, mediate the debate, or facilitate calm negotiation. Do not do anything; you will make it worse. This fight is an attorney-to-attorney matter, authentic or merely theatrical; stay seated and keep quiet until it is over. When everyone is through, the next question will be coming your way.

Assumptions The deposing attorney may ask, “Did you make any assumptions about the case before you began?” You may be tempted to say, “Well, I know that’s a good hospital, so I assumed that they knew what they were doing.” This assumption is dangerous because it suggests bias, no matter how generic or basic it may seem. There are good hospitals out there, and you might well know some of them, but your belief might interfere with your detection of negligence in this case. The only assumption you should make is good faith, meaning that you assume that the documents are what they seem to be, the parties are really the parties in the case, and so on. If the admission note turns out to be a forgery, that is not your problem; you assumed it was a medical record in good faith. In the specific malpractice context, for example, an appropriate additional assumption is that reasonable care was given (“innocent until proven guilty,” as it were), after which the expert examines for evidence either way.

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Failure to begin from that essentially neutral position may suggest bias. In a criminal context, the parallel assumption would be “Sane, competent, and innocent until proven otherwise.” For the above reasons the answer to the question as to whether you made assumptions should not be “no.”

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

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION When quoting the literature, be balanced and accurate. Give both (or several) points of view if they exist....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. (8, p. 571)

Final Predeposition Preparations Before the actual deposition, you will need to review a wide array of information. Obviously, review your files as diligently as if you were going to trial. In addition, it is wise to review—and if necessary, rehearse—the details of the links between your conclusions and the facts, statements, record notes, police reports, laboratory values, and so on so that you can buttress all your conclusions with specific elements from the database. Also, check the accuracy of any numbers (9). In some cases, actually visiting a site may be important. Arrange to do so with the attorney sufficiently early, well before the deposition. Meet with the attorney and review the issues. Under some circumstances, you also may want to meet one more time with the attorney’s client before the deposition, especially if details remain unclear or if over time the clinical condition has changed or evolved. You must exercise some care in these discussions as they may be discoverable. If you are really unsure about something, consult your own attorney; this conversation is protected. Your attorney then can communicate with the retaining attorney. Have your attorney review your case file for any items that might be considered work product and thus under a privilege. Many attorneys anticipate this problem and send only bland correspondence; some discuss details of trial strategy in their letters to you. The latter may be privileged, but this is not your problem. Frankly admit if anything has been removed from your file; let the attorneys determine whether it is discoverable. Any notes, summaries, or “cheat sheets” (i.e., outlines or summaries for quick reference) may be subject to subpoena for the deposition, and you may have to furnish copies to opposing counsel. Above all, remember to go to bed early.

The Video Deposition A modern wrinkle on the procedure is the video deposition, an increasingly popular mechanism for preserving not just the content of the deposition but the appearance of the deponent. The usual audience of the standard deposition is the stenographer, whose transcript will endure and be used for any impeachment possible. In contrast, in the video deposition, the camera is

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the audience, representing the jury, who may see the video displayed in addition to—or, at times, instead of—your personal appearance in court. If the expert is known to be unavailable for the trial dates, the video may also serve as the vehicle (in this case, the only vehicle) for the expert’s testimony. In the current economy, a video deposition from a remote attorney’s office has definite economic advantages compared with plane travel to your office. The video deposition presents a number of possible pitfalls. As in the trial described in the next chapter, you are under constant scrutiny, this time in a permanent record, and must beware of inappropriate gestures and personal bodily attentions. Despite the fact that there may be movement of various sorts by others in the deposition room or studio, you should try to direct your gaze toward the camera lens, since allowing your eyes to follow the local movement will create a shifty-eyed look that some jurors may interpret as consistent with evasiveness or dishonesty. Remember to keep your language level, not at the ponderous, careful, and pedantic level of the ordinary deposition but in basic, juror-friendly, jargon-free, trial-suited English.

After the Deposition Always ask to read and sign the deposition. Most court reporters are extremely good at their jobs, but errors can creep in. When you receive the deposition transcript, read it very carefully, checking for errors and typos. Recall that omission of a comma, of the word “not,” and rendering, say, “irresponsible” as “responsible” are small changes with profound results. My personal favorite is when the phrase, “It’s an us-and-them situation” was rendered “It’s an S and M situation.” 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, but under some circumstances the notarization can be waived, and the deponent signs under pains and penalties of perjury. At least one copy of the transcript is returned either to the court reporter, the retaining attorney, or the deposing attorney for distribution to the parties; the deponent expert should always ask for a personal copy to review in preparation for trial. If the deposition has been particularly instructive or noteworthy, the expert may wish to retain a copy for teaching purposes after the case is over. This approach risks eventually being papered out of house and home.

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References 1.

2.

3. 4.

5.

6. 7. 8. 9.

Gutheil TG, Simon RI, Simpson S: Attorneys’ requests for complete tax records from opposing expert witnesses: some approaches to the problem. J Am Acad Psychiatry Law 34:18–22, 2006 Gutheil TG, Simon RI, Hilliard JT: The phantom expert: unconsented use of the expert’s name/testimony as a legal strategy. J Am Acad Psychiatry Law 29:313–318, 2001 Baker TO: Operator’s Manual for a Witness Chair. Milwaukee, WI, Defense Research Institute, 1983 Gutheil TG, Mills MJ: Legal conceptualization, legal fictions, and the manipulation of reality: conflict between models of decision-making in psychiatry and law. Bull Am Acad Psychiatry Law 10:17–27, 1982 Gutheil TG, Dattilio FM: Practical Approaches to Forensic Mental Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins, 2007 Gutheil TG: Reflections on coaching by attorneys. J Am Acad Psychiatry Law 31:6–9, 2003 Kaplan HI, Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI, 6th Edition, Vols 1 and 2. Baltimore, MD, Willliams & Wilkins, 1995 Oates RK: Three do’s and three don’ts for expert witnesses (editorial). Child Abuse Negl 17:571–572, 1993 Malone DM, Hoffman PT: The Effective Deposition: Techniques and Strategies That Work. South Bend, IN, National Institute for Trial Advocacy, 1996

Suggested Readings Babitsky S, Mangraviti JJ: How to Excel During Depositions: Techniques for Experts That Work. Falmouth, MA, SEAK, 1999 Babitsky S, Mangraviti JJ: Depositions: The Comprehensive Guide for Expert Witnesses. Falmouth, MA, SEAK, 2007 Harrel PA: A new lawyer’s guide to expert use: prepare your expert so you don’t have to prepare for disaster. The Practical Lawyer 39:55–63, 1993 Linder RK: Preparing expert witnesses for hard questions at deposition. Defense Counsel Journal 4:174–179, 1991 Resnick PJ: Do’s and don’t for depositions: how to answer 8 tricky questions. Current Psychiatry 7: 25–28, 36, 39–40, 2008 Rice B: Malpractice: how to survive a deposition. Med Econ 82:45–48, 2005 Suplee DR, Woodruff MS: Deposing experts. The Practical Lawyer 33:69– 78, 1987

CHAPTER 6

The Expert in Trial BECAUSE ONLY ABOUT 6% of all cases ever go to court—the rest are dismissed, settled, pled out, or otherwise resolved—the amount of trial time that an expert witness usually spends is often overrated by other clinicians and the public. Nevertheless, trials do come around every so often, and they are the subject of this chapter. For experts who have spent little or no time in court, examining the companion volume, The Psychiatrist in Court: A Survival Guide, is recommended as an orientation. In this chapter, I review some of the basic courtroom procedures. If you are testifying away from home, review Chapter 10 (“The Expert on the Road”) in this volume before setting out.

Trial Preparation In Chapter 6 of The Psychiatrist in Court: A Survival Guide, I addressed the six Ps of trial preparation. If you are uncertain about the guidelines for trial preparation, review that chapter. For the expert witness, the same six Ps should be reviewed but with a slightly different emphasis. 1. Preparation. For the expert, 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; reviewing and analyzing opposing expert testimony and planning responses or rebuttal; and devising means of locating key passages in the database quickly. 2. Planning. The importance of clearing your schedule and arranging coverage and postponement of commitments cannot be overemphasized. 73

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3.

4.

5.

6.

7.

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

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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, a screening device known as a “Daubert hearing” has entered the expert witness’s knowledge base. Such a hearing, named for the plaintiff in an important U.S. Supreme Court case, may occur prior to trial (occasionally, in the middle of trial) if an opposing attorney elects to challenge the bases of the expert’s expected testimony (1). 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, and whether the testimony will fulfill the legally required expert function in the court. Regrettably, this kind of potentially valuable hearing and screening device can also be abused (2). From the viewpoint of the expert, the best approach is to exercise care about the methods used to reach conclusions, to be able to articulate the bases and reasoning behind those conclusions, and to ensure that recognized approaches to the subject matter are chosen. Attention to these principles will usually allow the expert to prevail if the testimony is subjected to a Daubert challenge.

Practical Matters Preparing to Go On Many courts sequester witnesses, particularly experts; that is, experts are not allowed to be present in court for the testimony of any other witnesses. When you are allowed to hear the testimony of other witnesses, much valuable information can be gained and the tone of the room determined. Before going into the courtroom, you will find it valuable to locate the restrooms and telephones, which are sometimes in obscure locations in older courthouses. Once in the courtroom, rise for the judge’s entrance. It is a mark of respect in many jurisdictions to rise for the jury’s entrance as well, but if you are the only one standing, sit down. Wait in the public seats until actually called to the stand. 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. 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. Doing so is supposed to decrease anxiety and give you a feel for the setting (i.e., where the jury will be and what

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the room looks like from the hot seat). Note that some anxiety is normal, even for experienced experts.

What to Bring Experts and their retaining attorneys vary in whether they prefer, while the experts are testifying, to have on the witness stand the entire stack of documents pertinent to the case or whether they prefer to have nothing on the stand or almost nothing (e.g., only a copy of the expert report that is already in evidence or only a curriculum vitae). Each preference has its pros and cons. Recall that in almost every case, the entire database is usually present at both the attorneys’ tables and therefore is immediately available. When no documents are before you on the stand, the opposing attorney cannot search through them for something with which to impeach your testimony. The expert is not peeking out from a daunting mound of paperwork and can face the jury directly with an unimpeded view. The expert appears more confident and knowledgeable about the case, because his or her opinion is being given from memory, as are all the substantiating data. The downside is the need to remember a vast amount of detail and to recall where, in an often extensive chart or deposition, a particular citation is. Groping for such data in the cross-examining attorney’s unmarked chart—or merely recalling incorrect data—can seriously weaken your credibility. On the other hand, having the whole database on the stand permits greater support of your testimony with specific data from the documents, allows you to read the full context from which the cross-examiner may have extracted a misleading snippet, and ensures the accuracy of your recollection by direct verification. These goals are usually achieved or facilitated by some sort of quick-reference system such as highlighted text, dog-eared pages, tabs, yellow self-stick notes, or your own table of contents devised for more extensive documents. Note again the importance of having and practicing a plan of organization. Downsides to having the entire database on the witness stand include the following: 1) you may have to lug vast tomes into court; 2) as noted, 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); and 3) you may become lost in excessive data. The expert should determine which of these two approaches is more suitable. My own preference is to strip down what is brought, so that I have only key documents on the witness stand (you almost never need to have the original complaint on the stand; if needed, the attorneys will have it). Key documents might include my report and interview notes, essential medical records

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(pruned to relevant periods if needed), depositions, affidavits, and similar data. 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. For depositions of less central players in the case, I take to the stand a one-page table of contents (i.e., a list of pages on which important points are made and the gist of those points) generated earlier when I reviewed the depositions. This table of contents enables speedy reference to key facts. If I need the actual page or quote, I can use my table together with the attorney’s copy of the deposition. A handy pen or pencil, highlighting marker, and scratch pad allow you to jot unobtrusively those relevant thoughts that occur to you during your direct or cross-examination. Finally, testifying is thirst-provoking work. Arranging for a cup, glass, or carafe of water is an excellent idea; the bailiff usually will keep it filled. 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.

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. It is unclear whether either strategy is superior to the other; perhaps comfort should rule. Regardless of whether you favor the charcoal pinstripe suit or the sport coat with slacks or skirt, your mode of dress should convey the fact that you are a professional in the courtroom on business. Avoid either ostentation, ornamentation, eccentricity, and cutting-edge high-drama fashion or excessive informality. Stick to the conservative business mien, and you will not go wrong. Above all, do not wear new clothes; what you wear should fit well and be well broken in. Do not wear or carry your cellular telephone or beeper, or if you must, ensure that they are turned off. Arrange appropriate coverage so that you do not have to worry about being reached, and check in, if you must, during breaks. Judges and juries find the shrill sound of the beeper or cell phone intrusive and annoying and interpret it as arrogance, showing off how busy you are and how court is taking you away from really important matters. Indeed, some judges get quite exercised and sarcastic when pagers or cell phones intrude on the court sanctum. If you are completely uncertain about what to wear to court, see also “Dressing for Success” in Chapter 6 in The Psychiatrist in Court: A Survival Guide.

Demeanor Being on the stand is not unlike being filmed, in the sense that you are usually under observation by someone—the bailiff, the bored juror, the defendant or

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plaintiff, an attorney—at all times, even when someone else is speaking. Such scrutiny begins in the courthouse parking lot and continues until you leave the courtroom. Avoid personal body attentions (such as scratching) as much as possible. Beware of “involuntary” gestures, such as rolling your eyes at the jury when a particularly fatuous question is asked. Such reactions may be misconstrued as disrespectful, not of the attorney in question, but of the jury or the entire process. Scholars recommend keeping the front of your body open (by not folding your arms, for example) as body language consistent with candor. Find a relaxed but alert position on the stand and settle into it to avoid shifting or squirming. Your identity on the stand is that of teacher. Be clear; get interested in what you have to say and stay interested. Make your point because it matters, it is important, and you want the jury to understand it. 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; however, in court it should be treated as a double-edged weapon likely to turn and cut the wielder. This unpredictability flows from the fact that you are not sure of an emotional alliance with the jury at all points along the way. Without such alliance, humor may seem disrespectful, flip, obnoxiously facetious, or obtuse to the seriousness of the issue, as the opposing lawyer will immediately try to point out (“So you think this tragic act of malpractice is funny, Doctor?”). With discretion, humor directed against yourself may show that you do not take yourself too seriously. A colleague reported the following: Attorney: What is your academic rank at Harvard Medical School? Witness: I am an instructor in psychiatry at Harvard. Attorney (with a slight sneer): Isn’t it true, Doctor, that instructor is the lowest rank in the academic system there? Witness: You sure know how to hurt a guy [general laughter; attorney moves on to another subject].

Three common demeanor pitfalls for the expert that negatively impinge on credibility are being huffy, fluffy, and stuffy, as follows. There is no reason for a teacher to get mad. Even when an attorney attacks you, demeans you, impugns you, or degrades you, you know or should know that it is not personal and has nothing to do with you. If the attorney is hostile, sneering, and sarcastic, and you are unfailingly polite, you win the exchange. If you become huffy or outright mad, you are likely to be too involved and therefore possibly biased, not credible. A witness with an apparent chip on his or her shoulder (and in court, all such chips are apparent) is particularly unconvincing.

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Being fluffy means being too abstract, theoretical, jargon laden, evasive, and “waffley.” Make your point as concretely as necessary and back it up with hard data from the database. If you must use, explain, or respond to jargon, adopt a self-deprecating or ironic attitude toward it that includes the jury in an alliance (i.e., what fools these jargonists be). In general, avoid discussing unconscious dynamics unless absolutely needed for your point; they are usually poorly received by juries. Finally, good teachers are lively and interesting, not stuffy. They are not excessively academic, pedantic, or prone to nit-picking. Haggling with the attorney over a tiny abstruse point, or waxing argumentative rather than instructive, blunts your argument and weakens your credibility; concede a remote possibility and move on. As occurs during the depositions noted in the previous chapter, the most common beginner’s error in the courtroom is the inability to “throw it away,” that is, to concede a point that really doesn’t mean much, to accept a possibility as such (almost anything is “possible,” but only a few things reach reasonable medical certainty), to agree that some things happen sometimes, and to admit that rules have exceptions. Remember that “reasonable medical certainty” is a standard of testimony that connotes “more likely than not”; the concept is sometimes rendered mathematically as a 51% certainty. It is not the same as “certainty” (100% sure). Because jurisdictions differ as to the precise definition, the expert should find out the relevant local standard and employ it (see also Chapter 6 in The Psychiatrist in Court: A Survival Guide).

Testimony Direct testimony should unfold in an organized manner, as a result of your careful and thoughtful preparation with your attorney. Direct your extended remarks to the jury, making roving eye contact with various jurors whenever possible, but without intimidating staring. 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, yet may ultimately give up on your testimony after straining to hear for too long. If a microphone is available, adjust its distance from your face to minimize annoying popping noises on plosives such as b and p. If no microphone is provided, project. If in any doubt about your speech volume, ask if you can be heard by the farthest ranks of jurors; even inhibited souls will nod if they can hear. Keep in mind the expert’s role in telling the story in a coherent, understandable manner that brings the details together in a recognizable gestalt. Although you are a teacher, the trial is a human process, not just a classroom exercise.

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

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

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

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

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

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

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(draw a barrier) this process, just like putting your hand over the vacuum nozzle; if you do that, the dirt stays on the floor. In the same way, the chemicals stay in the spark gap and keep working so that your mood is lifted. That is how this kind of antidepressant or mood elevator works.

Although this mode of explanation may seem cumbersome, the jury usually appreciates being given the “inside story,” but this appreciation is lost if the jury cannot understand or follow your description. Consider practicing such a description with your attorney or colleagues or friends. The hazards of lack of practice are revealed by this following segment from an actual murder trial. The expert is on direct examination by his own retaining attorney. Um—he went—um—a couple of days after that to the—um—[mental health center]—um—and—um—complaining of feeling stressed, depressed— um—and seeking help. Um—as the events became closer to the—um—incident itself [the murder],—um—I think that—um—[defendant] was—um— was very upset by the scene on [date] in which he observed his wife.

As you can grasp by merely reading this response aloud, it is numbing to a jury. 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. What will cross-examination be like? What is the jury to make of this apparent hesitancy and doubt? Remember also that—as is clearly seen in that excerpt—the court reporter is entitled to, and slavishly but perfectly appropriately, may record every pause, stutter, grunt, and throat clear that you emit on the stand. This is a powerful argument for at least organizing your thoughts before you begin to testify. Respect the juror; do not underestimate juries. Over the years, I have been impressed by their ability to grasp what is at issue, even if the technical details are lost in the shuffle. Respect their native intelligence by preparing clear ways of communicating the bases for your opinions.

Adventures in Cross-Examination For experienced experts, some scholars assert, the best cross-examination is, “I have no questions for this witness,” preferably said in a mildly contemptuous tone, as if to convey, “I don’t care to waste my time on this whore; any testimony from this witness would be bought and meaningless.” Realistically, such an avoidance of cross-examination is sound trial strategy, 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. The jury hears the testimony twice—an aid to both memory and persuasion.

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

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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. Practically, this type of questioning means that you have only three answers available: “yes,” “no,” and “that question cannot truthfully be answered yes or no” (some add: “without misleading the jury”). The key word is truthfully. You took an oath to tell the whole truth, and a mere yes or no may fail to convey the “whole truth.” Listen with intense attention to the question, and think seriously about whether yes or no will represent the whole truth. If either will do so, say it; if not, state that you cannot answer yes or no. Scholars liken agreeing to this either-or approach to signing a blank check; consequently, some sources suggest answering at the outset, when asked to answer only yes or no: “I could not possibly answer only yes or no in a case this complex.” This response may be foreclosed by the judge directing you to answer anyway.

Quotes On cross-examination, the attorney may quote something that you wrote or lectured on. Always ask to see the context if you do not immediately and completely recall it, because removing a remark from its original context is a common mechanism attorneys use to impeach you with your own words. Remember that you did not write the article or make the statement during a lecture with this particular case in mind.

After Rodin Pause briefly before answering each question to allow replay of the query in your mind, to be sure you are clear about the question, to consider your answer carefully, and to allow your attorney to object, if needed. At times, a question will require more time for prolonged thought or searching of your memory. Your thinking in silence may confuse the jury: are you paralyzed with dismay at the cross-examination, or have you dozed off? It is best to state, “I’m going to take a moment to think about that,” and do so. 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 such moments, a judge may even decide to declare a recess: “While you are thinking, Doctor, we are going to take our midmorning break right now. We’ll reconvene in 15 minutes.” The break gives you ample time to think.

Breaks During breaks that occur in the middle of cross-examination, some attorneys advise not discussing your testimony, because “What did you discuss?” may well be the first question when you are back on the stand (only discus-

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sions with your own personal lawyer are protected). Some experts want to call their offices during breaks; others find telephone calls distracting and let whoever is covering for them handle things. For the lunch break, I recommend avoiding eating heavily. 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. Use your own judgment and knowledge of your biorhythms.

The Final Opinion During the course of expert consultation, you may have written a report after reviewing some quantity of material. Later, you may have been deposed, and some additional material may have come your way just before the trial (which, had it changed your opinion, you would have been obligated to so inform your attorney, but let’s assume it did not). Now you must testify on the witness stand. The cross-examining attorney may make an issue of the fact that you had not seen a particular document or known a particular fact before you gave your opinions in your report or deposition. The thrust of this line of questioning is to convey that your opinion is premature, incomplete, or inadequately grounded in data. Remember that your opinion is steadily evolving as increments of material are conveyed to you and as your analysis proceeds. Your final opinion, the one that counts, is your actual trial testimony. In theory, your opinion, because it is based on data, could change with complete validity based on some new fact that you hear for the first time during the trial. This change is as it should be. If your opinion does not change under these circumstances of a novel and significant contradiction of previous data, you have confused loyalty to your attorney with the oath to tell the truth. An aid to this conceptualization is to label your first report, if requested, as a “preliminary” report. Subsequent communications may be labeled supplementary reports to keep the sequence clear. Writing reports for the court is discussed in Chapter 8 (“Writing to and for the Legal System”) of this volume.

Crises Various crises may strike while you are on the stand. These include biological and physiological crises or circumstantial ones, such as the discovery that you have left a key document in your suitcase across the courtroom or, even worse, in the trunk of your car.

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Do not hesitate to ask the judge to permit you to take a break for these reasons. Do not be inhibited by fears that, by needing to go to the bathroom, for example, you will appear inept, entitled, childish, sickly, or weak. Your job as expert is important to the case, and serious distractions impair your work. Deal with the problem and then continue with your task with restored focus. Ask the judge if you may take a brief break for personal reasons. The judge will almost always grant this. It is probably inappropriate to ask for a break only because the crossexamination is strenuous and effective and you wish to break the flow. Your attorney may recognize the problem and ask for a sidebar conference or other delaying tactic. If a delaying tactic is not used, it is preferable just to hang in there. Use breaks or the jury’s distraction by the attorneys’ wrangling as an opportunity to wipe sweat discreetly from your brow. Focus on slow, measured breathing; stretch your limbs behind the screen of the stand; and sit more upright to relieve tension.

The End of the Affair Finally, the seemingly interminable re-re-redirect and re-re-recross-examination have worn the two attorneys into a torpor, and both grudgingly acknowledge that neither has any more questions for you. The judge dismisses you by saying, “You (or the witness) may step down” or “Thank you, Doctor, that’s all.” At this point you say, “Thank you, Your Honor,” pack up your papers (being careful not to include and therefore abscond with any official case exhibits), get down from the stand, nod politely to the jury, and go. Some more extroverted experts thank the jury out loud, wave at the jury box (“So long, fans!”), or emit other social behaviors. No one knows the effect of these gestures; as always, conservativeness is probably better (the discreet nod rather than the glad-hand wave). Forensic etiquette requires that you just leave. Do not stop to chat or debrief with the attorney. Do not hang around to hear what other witnesses say, to see the outcome, or to learn of other subsequent activity. This behavior conveys too much interest in the outcome for someone who is not a party to the case. What do you care what happens? You only testify under oath; when you are through, you exit. On occasion as I have left the courtroom, one of the parties or even one of the attorneys reaches out to shake my hand. While this is a common and respectful courtesy, it invariably conveys the strong suggestion of partisanship, at odds with your objectivity. More troublingly, it poses a dilemma of a no-win situation. If you do shake hands, you seem to be acknowledged

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

References 1.

Gutheil TG, Stein MD: Daubert-based gatekeeping and psychiatric/ psychological testimony in court: review and proposal. J Psychiatry Law 28:235–251, 2000

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3. 4.

5.

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

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

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

CHAPTER 7

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

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

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

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for months without any forensic activity whatsoever, but during the very week that you have scheduled four weddings and a funeral, two trials in different states will be called simultaneously, with a deposition for a third case. This type of schedule is close to reality. Such a conjunction of scheduling conflicts requires a great deal of diplomacy, negotiation, and telephone calls to resolve them. As a rule of thumb, the hierarchy of urgency and therefore attempted postponement (or at worst, cancellation) is as follows. Trials take first priority. Large numbers of people are involved, court dockets are crowded and leave little flexibility, and serious matters hang in the balance. You may have a little room to maneuver in terms of the order in which you testify. An attorney who planned to have you “bat cleanup” (i.e., testify last in order to summarize) may be willing to move you earlier in the case and somewhat restructure your direct examination to compensate for this maneuver. In extreme circumstances, the other side may be willing to have your testimony inserted into their side of the case, with suitable preparation of the jury. The tension here is that some courts, attorneys, and other-side attorneys are reasonable, flexible, and accommodating; others are not. You must do the best you can with what you’ve got. Because your attorney has the most interest in your presence, he or she will be exerting the greatest efforts to make it all work out, but things happen. Travel glitches (discussed in Chapter 10, “The Expert on the Road,” in this volume), of course, add another layer of challenge. The second priority is depositions, which also require several people to synchronize their schedules, although obviously fewer persons and a shorter time frame are involved than are for trial. If a trial and a deposition are scheduled for the same time, the trial should take precedence. The last two priorities are interview and report. Because your reports can be done at any time of the day or night, theoretically, a forensic interview, requiring two parties to match schedules, comes before a report.

Trial Time Considerations A cheerful bit of dialogue that experts hear constantly is, for example: “Doctor, I know you have a busy schedule, so let’s put you on first at 9:00 A .M., sharp. I can’t imagine my direct examination taking more than an hour, tops. You’ll probably be cross-examined for 1, maybe 2, hours. You’ll be out of there by lunchtime.” Smile politely when you hear these words but make expansive plans. You can count on your eyeballs the number of times this clockwork model actu-

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ally occurs. Why? Although some judges are scrupulously punctual, some are not. Occasionally, a judge will treat the time between 9:00 and 9:30 A .M. 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.” In addition, the odd juror gets stuck in traffic. The attorneys wrangle over whether some document relevant to the next witness is admissible. The jury takes a long midmorning break. The judge assigns a long lunch and hears another few motions just afterward. Thus, it is not uncommon for an out-by-noon case to extend into the next day. 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. (More suggestions on scheduling are included in Chapter 10 in this volume.)

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. Although my colleagues and I tried to study this issue formally (2), no clear conclusions can be drawn. The subject may represent some kind of taboo because it is rarely discussed. However, negotiation may be possible for some scheduling conflicts but not always. In the end, difficult choices may have to be made. The best aid for peace of mind for the would-be forensic expert is an understanding spouse, partner, and family.

References 1. 2.

Gutheil TG: “Paraforensic” aspects of expert witness practice. J Am Acad Psychiatry Law 32:356–358, 2004 Kearney AJ, Gutheil TG, Commons ML: Trading forensic and family commitments. Bull Am Acad Psychiatry Law 24:533–546, 1996

Suggested Readings Gutheil TG, Simon RI: Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness. Washington, DC, American Psychiatric Publishing, 2002 Reid WH: Forensic practice: a day in the life. J Psychiatr Pract 12:50–54, 2006

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CHAPTER 8

Writing to and for the Legal System THE EXPERT WITNESS may provide many different kinds of written documentation to the legal system, an attorney, a court, or a quasilegal agency such as a board of registration or a bureau of motor vehicles. Examples of such writing include a letter providing an assessment of a person’s fitness to drive, to serve as a witness, or to serve on a jury; a description of an independent medical examination for a personal injury suit, for a worker’s compensation claim, or for a disability determination; or a full evaluation of a person’s competence to stand trial, a defendant’s criminal responsibility, or a physician’s deviation from the standard of care. In all such cases, attention to the preparation of the written document results in a product that assists the legal system in its efforts and goals and validates your contribution to the process. In The Psychiatrist in Court: A Survival Guide, some basic principles on letter writing to the court are described and are not repeated in this chapter. In this chapter, I focus on writing the full-fledged forensic report.

The Forensic Report Writing a forensic report is an important function of the expert for a number of reasons. The report may be the first time the attorney who retained you has had an opportunity to see your opinions in written form, allowing careful legal analysis and reflection on whether you will be helpful on the case. 95

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Alternatively, your report may open up entirely novel approaches to litigating the case or new issues to develop on cross-examination of the opposing experts. In other situations, your report may be the decisive factor in convincing the other side of the case to settle or drop the matter. These are all powerful arguments for careful thought, painstaking preparation, and meticulous proofing and review of any report you produce. Despite these useful functions, the report may present materials or approaches that the attorney does not wish to share with the other side. Consequently, the attorney may ask that you not furnish a report, which in that jurisdiction is discoverable by the other side. For similar reasons, the attorney may request a bare-bones report describing only the materials that you have reviewed and your concluding opinions, without detailed discussion of the bases or reasoning behind those conclusions. Forensic report writing, then, may take three major forms (with variations possible, of course): 1) no report, in which case you are asked to summarize your views in a nondiscoverable (work product) telephone call for the attorney’s benefit; 2) a summary report, which presents your database and conclusions only; and 3) the full, detailed report, which states all of your conclusions and the analysis of all the relevant substantiating data. In this chapter, I emphasize the third form, because the first is self-explanatory and the second is an extract of the third. Phillip J. Resnick, M.D., 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, has generously and graciously granted me permission to cite some of his advice on report writing, for which I am most grateful (where I cite his material, I refer to him explicitly in the text).

General Remarks The report as a whole should meet certain criteria. It should contain everything that you need to support your opinion and no irrelevant material. It should be just long enough to cover the essential information but not so long as to exhaust the reader. It should stand alone. According to Dr. Resnick, “Reports should be self-sufficient. Without referring to other documents, the reader should be able to understand how the opinion was reached from the data in the report. Critical documents should be briefly summarized within the report.” Dr. Resnick also identifies the “four principles of good writing”: clarity, simplicity, brevity, and humanity. Obviously, all should govern the form of the report.

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The Heading The first report should be titled “Preliminary Report,” and subsequent contributions, additions, or emendations should be titled “Supplementary Report.” The reasoning is that the “Final Report” would be your trial testimony itself (if the trial occurs), testimony which might theoretically be influenced by new information emerging for the first time during the trial testimony of other witnesses. The heading should also include your letterhead and the date of the report. Identifying data can be presented in a number of ways. One way is to provide the case citation or caption in whole or in brief (e.g., Smith v. Jones et al. or State v. John Johnson), the case or docket number if known, the charges in a criminal case, or the type of case in a civil matter (e.g., emotional injury or psychiatric malpractice). Some experts and their retaining attorneys prefer that the report be in the form of a letter addressed to the attorney. In that case, use a standard business letter format; otherwise, think of your report as a memorandum and use a standardized format. One model by Dr. Resnick is included at the end of this chapter.

The Occasion The occasion, sometimes called the referral, of the report should address the question of why you are writing this report; that is, 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), I examined (name of examinee) with regard to (forensic issue)...” • “I examined Ms. Susan Smith at her own request to document her competence to make a will on the occasion of her plans to alter her bequest ...” Some attorneys, reasoning that the occasion is obvious from context, may prefer that you simply plunge in: • “In preparing this preliminary report I have reviewed the following documents, ...”

The Database After identifying the occasion, the report should ordinarily present a listing of everything you have reviewed in preparing the report: medical records, police reports, legal pleadings, and depositions. Include any interviews per-

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formed and their date and length. This listing is best presented in tabular fashion to allow ease of checking whether you have reviewed all relevant materials. The documents may be listed alphabetically, chronologically, or according to some natural, logical grouping (e.g., all medical reports, all depositions).

The Conclusion or Opinion The great schism between schools of forensic report writing lies between the conclusion-first advocates and conclusion-last devotees. Although each group has a rationale, no convincing case has been made for the inherent superiority of either approach; you are free to choose your favorite. 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, attorney, or other) is free to stop there and make decisions about future directions in which the process should go, about the disposition, and so on. The remainder of the report is thus treated as optional reading. Such an approach appeals to busy judges who want to get to the punch line without having to listen to the long-winded joke. The rationale for placing the conclusion last is that such a structure allows the reader to develop an evolving (and therefore deeper) sense of the expert’s reasoning as it may (or may not) lead to the conclusion. The 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. 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. A typical conclusion in a malpractice case, for example, might take the following form: Conclusion Based on my review of the above materials (the database) and my own training and experience, it is my professional opinion, held to a reasonable degree of medical certainty, that, in the treatment of (plaintiff ), (defendant) failed to practice at the standard of care of the average reasonable practitioner in that specialty and that stage of training . .. (or, the treatment provided to [plaintiff ] by [defendant] comported well with [or within] the standard).

Note the wording. First, the overall basis is described as both the database (all the material reviewed in the case, including interview data) and your total clinical background of training (what you were taught) and expe-

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rience (what you have found for yourself by practicing in the field about which you are testifying). Second, you are voicing a professional opinion (rather than a casual or personal one) to a particular standard of testimony called reasonable medical certainty (i.e., usually, more likely than not). Third, you are explicitly stating your opinion in the statutory or other definition of malpractice used in that locality. Finally, you do not say “the defendant committed malpractice” because only the fact finder can address that ultimate issue. Your testimony is focused on and limited to the underlying criteria for the forensic determination you are making, be it competence, insanity, malpractice, or other.

Supporting Data After the conclusion, you can present the supporting material in several ways. If your conclusion is stated at the outset, 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). Dr. Resnick suggests using subheadings to organize the information and facilitate the flow of the report. It cannot be overemphasized how critical this phase of the report will be to the credibility and utility of your opinion. Remember that the conclusion, although representing the core of your opinion, is essentially boilerplate (i.e., standardized legal language). 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, effectiveness, and credibility as an expert witness. If your conclusion comes at the end of the report, this section should contain extracts of previous material directly supporting the points you are making. Dr. Resnick explains, “Reasons supporting opinions should be clearly and fully stated. The reader should not have to use his/her own inferences to understand the point.”

Multiple Realities In civil cases, it is predictable that plaintiff and defendant tell different stories, sometimes frankly contradictory, sometimes different spins on the truth. In criminal cases involving the insanity defense, the defendant usually has admitted the act for which he or she is charged, but occasionally, a case involves the attorney’s asking for a criminal responsibility assessment when the defendant denies even doing the criminal act. In these cases, the expert should scrupulously avoid assuming one side is correct. As Dr. Resnick states, “If there are two versions of the facts, offer alternative opinions.” In every case, your conclusions should be presented in

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the following form: “If the allegations are true, then ...” Flat contradictions may require bifurcated testimony: “If plaintiff ’s version is true, then ...if defendant’s version is true, then ...” This approach prevents your seeming to side with one party in the case.

Constraints, Limits, and Rebuttals If there have been any constraints of time, money, or data (such as inadmissible material, interview of plaintiff blocked by attorney, attorney will not pay for travel to see examinee) or limits imposed on the conclusions by any circumstances in the case, these should be recorded. These are not weaknesses of the report; on the contrary, it would be a weakness not to acknowledge these factors candidly. Opinions differ on whether the expert should present overt self-rebuttal possibilities to his or her own opinions, including evidence opposing those views (even if outweighed by other evidence supporting them) or alternative conclusions derived from some of the same data. 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. Other attorneys feel this is unnecessary or detrimental and assert that crossexamination should be left to the cross-examiner. Whichever approach you actually take in your written report, 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).

Postreport Negotiations After your report is finished and has been sent to the attorney, judge, or agency for which it has been prepared, you may receive requests to alter the report in some ways. Some requested alterations are fully ethical; some are not. A case example was discussed in Chapter 3 (“First Principles”) of this volume. Ethical alterations include changing the language of your conclusions to meet precisely the statutory wording, asking for the addition of new material not supplied to you earlier, and shortening the report by aggressive editing, summarizing, and deleting. (Remember you must be candid about everything you believe to be true, even if it has been removed from your report for brevity.) Unethical requests for alterations include asking you to reach opinions unsubstantiated by the data, to alter or misrepresent facts in the database, or to change the substance of your opinions. A challenging gray zone is negotiating about wording. There is no absolute guideline for this procedure, but generally there is no inherent problem

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in adjusting wording as long as the substance of your opinion is not changed thereby. Be careful about changing wording concerning issues of causation, intensity (likely, very likely, extremely likely), and effect of emotional injuries—three common problem areas. Attorneys who wax aggressive about the changes they wish to have occur in your report may precipitate your decision to withdraw from the case.

The Experience Factor This chapter alone cannot prepare you fully for forensic report writing, but it may get you started. There is probably no substitute for practice and feedback from your retaining attorney and peers in the field. I strongly recommend having an experienced colleague review your early reports and offer critiques and feedback. You also may ask to see a senior colleague’s report under an agreement of confidentiality.

The Criminal Report: An Example The following is Dr. Resnick’s outline for a typical criminal report.1 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

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.

102 18. 19. 20. 21. 22. 23. 24. 25.

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

CHAPTER 9

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

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All this effort did nothing. We received a few form announcements from two or three firms about their offerings, but the net effect for all this time, thought, and expense resembled our own responses to offers that come in the mail to sell us insurance. The result was tantamount to letting a drop of water fall into a large lake. Most recipients almost certainly awarded our announcement the coveted circular file disposition.

The Key Approach As time went on, it became absolutely clear that only one reliable mechanism among attorneys (and for that matter, clinicians) led to forensic referrals: word of mouth. Support for this theory came from Harvey Research in 1994, which revealed that 77% of attorneys got the names of expert witnesses from other attorneys (i.e., word of mouth). Based on this reasoning, an expert’s marketing strategy shifts to generating favorable word of mouth. Ordinary advertising in Lawyers’ Weekly, for example, is suspect and not reliable as an approach (see also Chapter 4, “Types of Typical Cases,” in this volume).

The Delicate Balance In all approaches to marketing, the expert must strike a delicate balance between honest and reasonable efforts to offer services to potential clients and sleazy, opportunistic, commercialized hustling for business—or the appearance thereof. The balance must be struck between dualities such as generating word of mouth versus hucksterism, sharing useful information versus being pushy, and pride and confidence in your work versus hired gun certainty or grandiosity. 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. Do most attorneys view the names of experts listed in a particular directory as proven hired guns? How could you find out honestly; that is, 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, inform, list, speak, write, and unspecialize.

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Announce If the circumstances call for an announcement (which is not common), the announcement should display the professionalism that you plan to bring to the work. Thus, it should be tasteful, informative, and factual. Avoid any hype, including listing services you are not truly expert in. Describe those services you can authentically offer, and send it to attorneys and clinicians, hand it out at a lecture, or use it in some other appropriate way. Some experts replace the announcement with a minibrochure: a single, trifold sheet of fine paper with a brief description of the expert and the services. It is unclear whether the brochure is superior to the announcement and may be better utilized as the second item of information sent after an initial communication.

Inform The information about your availability may be directed to four possible audiences: 1) your clinical peer group, 2) your forensic peer group, 3) attorneys, and 4) judges. For your clinical peers, it is appropriate to let them know in face-to-face or telephone encounters about your new interests in forensic work. Alumni bulletins and class reunions are also opportunities to get the word out. Although your forensic peers may seem to be your competition, they will be useful to you in several ways. First, they may turn away a case because of a conflict of interest, too little time, previous associations with the attorneys on the other side, or other reasons. If you inform your peer groups about your availability, they may think of you at that point. 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. Attorneys whom you can inform include your own attorney, if you have one, and lawyer neighbors and friends who might pass your name along. Opposing attorneys, of course, will see you in action in deposition or trial. Finally, judges may need your services. If you are moving into a new town, you may wish to send a short, polite letter informing local judges of your availability for forensic services. Serving as a guardian ad litem (GAL; in effect, a utility consultant to the court) is an excellent way to meet attorneys and judges who can evaluate your work and spread the word. Among other roles, the GAL may do a preliminary survey of the psychiatric aspects of a case, such as visiting a nursing home resident whose competence is challenged to see if there is a likelihood of a valid concern, then reporting to the court.

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List Listings can be effective as well. Consider listing yourself in your APA district branch’s directory as having special interest in forensic work and in the AAPL member directory. 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; however, these publications may be explored. In my opinion, the American Board of Forensic Examiners has not yet achieved sufficient credibility to be useful to you (1).

Speak Lecturing on relevant medicolegal or forensic topics is also an introduction to populations who may use your services, such as clinicians and lawyers. Your podium demeanor may convey at least a little about your expected performance on the witness stand. Do not attempt to schedule yourself for a freestanding lecture on new developments in the insanity defense or whatever; no one will show. Instead, sign up as an entry in an existing lecture series, such as hospital grand rounds, departmental conferences, or established continuing medical education programs. Become active in your district branch legislative committees and processes. You will be exposed to attorneys and legislators, both of whom may be potential referral sources. Finally, try to become involved in local media such as call-in shows, which are often seeking a stable of experts to comment on medicolegal stories of the moment. Admittedly, this skill is acquired, and media exposure may open you to crank calls, ambush journalism, and similar humiliations. The APA Public Affairs Office provides some guidance in dealing with the media, but the wounds of experience are probably and ultimately the best teacher. One reference, Beat the Press (2), may be helpful in dealing with the media.

Write In our computerized modern age, many referrals to psychiatrists come from publications, the topics of which appear on the screens of attorneys’ computer searches. Although it is useful exposure and a valuable resource to write an analysis, review, or commentary and have it published, 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.

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Unspecialize For the novice expert, the temptation to specialize from the outset is strong: “In my search to become a media darling and celebrity, I will work only on high-profile, widely publicized mass murders.” This is a losing strategy. Begin your career by unspecializing, wherein you follow the ancient maxim, No case too small. Even minor, trivial cases allow you to be observed in action by potential employers. The most gratifying outcome is when the attorney for the other side of a case retains you on a later case, based on your fine performance at the deposition. From the absolute onset of your career, integrity must be your watchword, a point that cannot be overemphasized. 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. It does not matter if the case is trivial or small potatoes. Do not bend the truth to satisfy the attorney; one turn to the Dark Side of the Force, and your course as hired gun may be marked. It may then take you years of work to unblemish your reputation. In the same vein, your forensic examinations and your first oral and written reports must be meticulous and carefully crafted, no matter how slight the issue. Consider taking on some pro bono work as well, even at the outset. You will derive no income, but you will obtain valuable exposure.

What About Web Sites? In the modern era the use of Web sites has increased for all professions, including this one. In fact, 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, some broker organizations guarantee your opinion, as it were—but the Web site is perhaps the most explicit. If you decide to use a Web site, some critical considerations are the following: 1. Have the site professionally designed with attention to taste, modesty, and interest. 2. Beware of making or seeming to make extravagant claims for your knowledge, training, skills, place in the profession, and other aggrandizing statements that are, by definition, extremely public. 3. Be extremely careful about posting your qualifications. Conservatively stating your incontrovertible credentials (actual appointments, certifica-

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tions, publications, etc.) is far better than less supportable claims (“The best expert south of the Mason-Dixon line!”).

Additional Pointers The issue may seem trivial, but its importance cannot be overstated: return telephone calls promptly. It is astonishing how often prompt telephone responses are ignored as somehow demeaning or conveying inappropriate eagerness, but every attorney whose call you return promptly will greatly appreciate it and be pleasantly surprised. The difficulty of reaching most practitioners is legendary and exceeded only by the problem of getting them to call back. Return telephone calls are the easiest marketing device and one of the most effective. Remember how your parents tried to impress on you during elementary school the value of thank-you notes? It’s still true. Remember to thank your referral sources, including attorneys and fellow clinicians, for referrals. Consider sending a curriculum vitae even to those attorneys whose cases you do not have the time to review. Finally, recall the value of brokering. You are saying to the calling attorney, “I can’t take this case (because of time, conflict, specific required expertise), but I will take it upon myself to find somebody good who can.” Although you are feeding the competition, you are also revealing yourself as a good first stop on the search for a good expert. In analogy with clinical referrals, whereby you would refer someone only to a practitioner whom you would trust treating a member of your family, choose only those experts whom you would be confident to have on your side if you were being sued for something. Building a practice on word of mouth is slow, at times trying, and demanding of patience, but no other method is as reliable, sound, and effective. 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.

2.

Dattilio FM, Sadoff RL, Gutheil TG: Board certification in forensic psychiatry and psychology: separating the chaff from the wheat. J Psychiatry Law 31:5–19, 2003 Fulton S, Guyant A: Beat the Press. Salt Lake City, UT, American Book Business Press, 2002

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Suggested Readings Berger SH: Establishing a Forensic Practice: A Practical Guide. New York, WW Norton, 1997 Feder HA: Succeeding as an Expert Witness. Glenwood Springs, CO, Tageh Press, 1991

Suggested Attendance I personally recommend attending the various conferences in diverse locales put on by SEAK, Inc., out of Falmouth, Massachusetts; these are invariably helpful in such specialized areas as curriculum vitae preparation and marketing. I disclose that I have lectured for SEAK numerous times over the years.

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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, mockery, and opprobrium; the large number of commentaries that mocked and reviled the chapter for obviousness and redundancy were almost balanced by expressions of gratitude for useful tips. This edition features a somewhat trimmed-down list of suggestions that may be especially helpful to novices. As always, seasoned travelers may skip the chapter entirely.

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. In this chapter, I address some tips and strategies for the expert who is inexperienced in traveling to cases, examinations, or interviews.

The author is indebted to Robert I. Simon, M.D., William Reid, M.D., 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.

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The basic situation I describe is one in which you travel by airplane to the city where the trial (or deposition or interview) is being held, stay overnight in a hotel or similar setting, testify or interview the next day, and return that day or the following one. For cases that involve land travel, you may make the appropriate adjustments.

Some General Recommendations Travel Information Travel guides are available everywhere, and general information can be obtained from books, travel agents, the Internet, and your colleagues. 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. Another useful reference is Jet Smart (2). Still other guides are provided in the suggested readings at the end of this chapter. 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. I strongly recommend enrolling in a 24-hour travel service with a tollfree number and a separate customer service number. These services can book flights, cars, and hotels directly and save you much time and stress on the telephone or online. Alternatively, the emerging online travel services (Expedia and the like) may prove useful.

Time Planning and Packing As noted in Chapter 7 (“Some Pointers on Expert Witness Practice”) in this volume, 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; on rare occasion, the process takes even longer. An effective strategy is to plan on at least a second day and to pack accordingly with a second complete outfit for court. Opt for crushproof fabrics and materials whenever possible. Try on everything before you pack it, especially if you have not worn it for a while, to ensure that it still fits, matches, looks professional, and is in good repair. Consult with significant others for their opinions if needed. You probably can get away with taking just one wrinkleproof suit or outfit if you guard it with paranoid vigilance, especially in flight, and one pair of shoes, although you may wish to wear running shoes on the airplane and pack the shoes you’ll wear to court (medium heels for women; polished shoes for men and women). Running shoes also allow you to sprint through airports to

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your connecting flight if you are late. If the trial runs longer than a day or so, you may have to use the hotel’s laundry and dry-cleaning facilities or buy additional items locally.

The Ethics of Billing Bill strictly according to your fee agreement. Consider negotiating a separate travel retainer per fee agreement to cover the time and costs (e.g., 1 day at your day rate, because some law firms are slow to reimburse hotel and plane expenses). It is considered appropriate to seek reimbursement from the retaining attorney for the cost of your hotel room or similar accommodation, for one or two telephone calls per day to the office to check on things, for one telephone call to the family, and for the regular three meals; but not alcoholic beverages, in-room movies, massages, or 2-hour long-distance calls to your paramour. Separate business from personal comfort; do not bill for sleep (you do it anyway). My colleagues and I have studied the ethical complexities of billing more than one retaining attorney for trips involving multiple cases. One striking finding was that in complex cases where it might make sense to divide the costs of a multistop trip between law firms, 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; the literature is relatively unhelpful (the issue of double billing, for example, is addressed nowhere in the forensic literature). Until data emerge, a useful principle is to avoid double billing in any form. For example, if you are flying to a case and use air travel time to review the case, do not bill separately for that work because you are already being paid a day rate. If you review a different case on the way back, you may bill for that time but not for the ticket because the first case paid the whole trip already. Seek equitable division of costs for multiple-case trips, which are, fortunately, rare but extremely stressful when they do occur.

Secrets of Packing The Travel Suitcase This device is the traveling expert’s best friend. A briefcase often is sold with the travel suitcase and can be snapped or hooked piggyback onto the suitcase. It is possible, then, 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. Avoid checking baggage if you can. You have enough to worry about

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without having your materials for the case arrive in Chicago while you are in Cleveland, not to mention the current airline custom of charging extra. In addition, these roll-alongs often fit either in the overhead compartment or, with a little applied topology, even under the seat in some cases. Some of these roll-along suitcases include a special compartment so that a suit can be folded and carried along inside. It is not clear if the bag keeps the outfit suitably wrinkle free as advertised, but you may wish to experiment with a friend’s suitcase. Alternatively, you may opt to wear the suit or outfit on the plane and guard it in transit. In general, do not skimp or economize on the roll-along suitcase.

The Kit Whether you call it a travel kit, Dopp kit, makeup bag, or toiletries case, it is indispensable to your successful travel ventures, preferably prepacked with duplicate goods rather than trying to fill it each time from your daily cosmetics and such. Current travel restrictions have shifted the allocation of liquids, lotions, and creams to quart-size plastic bags, which may also be prepacked. In psychoanalytic theory, the principle of multiple function is one of the basics of a dynamic understanding of mental life. It is definitely a basic principle for assembling your kit. What you take should have similar versatility. Remember also that your kit should contain items that permit repair, remedy, and cleaning. These should include sewing items, such as a variety of buttons and threads to match your clothes; stain-remover sticks that do not contain toxic petrochemicals; safety pins in various sizes; extra shoelaces; and rubber bands, a small roll of duct tape, and string. A small, multifunction “pharmacy” also should be included. It should contain not only your usual prescription medications but also emergency supplies such as headache remedies, antacids, decongestants, and similar medications. Antihistamine tablets and an antihistamine or steroid cream will be useful for unexpected allergic reactions.

Miscellaneous Suggestions Consider taking along a lightweight workout outfit if that is part of your routine. Wear your workout or running shoes on the plane, and pack the rest of the gear. 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. Other useful miscellaneous items include adhesive bandages of various sizes and types; a small, light flashlight for power outages and searching under beds for lost items; extra eyeglasses or contacts if you wear them; eyeglass screwdrivers and replacement screws; and extra combs.

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If you travel with a laptop computer, remember to carry light extension cords and voltage adapters, as well as extra disks and the instruction manual if not on the hard drive already.

Emergency Items Neurotic fears can certainly flower when you travel, but some precautions seem sensible. Besides a small flashlight, I carry a compact “smoke hood,” a device that comes in a packet or canister and that is placed over the head in the event of a hotel fire. You breathe through a filter that lasts long enough, in theory, for you to get out of the toxic smoke and gases to safety. This item is available through a number of catalogs. Almost all modern hotels in the United States have smoke detectors, but you can buy your own compact version, often hooked to a travel alarm clock. This latter item also is probably quite vital as a backup for the wake-up system used by the hotel (which rarely, although occasionally, fails).

Secrets of Flying Consider upgrading to first class to allow you to spread out the case materials for in-flight review. Drink water steadily to avoid travel dehydration; on very dry flights, try breathing through a moistened towel for short periods. A decongestant before flight may be helpful if you are the least bit stuffy or have a cold. Seriously consider avoiding airline food entirely, or order special low-fat meals. Some experts nibble an “energy bar” during flight and postpone having lunch or dinner until they reach their destination. If you have a disability, call the airline early to check on facilities, procedures, and special arrangements.

Secrets of Staying If you are unfamiliar with the expert art of “fly in, testify, fly out,” this discussion will be helpful; experienced travelers can skip this discussion. The traveling expert is sometimes torn between staying at a cold, institutional hotel or motel and cadging free lodging with friends or relatives in the area. The latter appears at first glance both socially desirable and economical, because someone else is paying your way to the location. I recommend the hotel or motel for several reasons. First, you are undistracted by social obligations and family strife or background noise. Second, it is more professional to meet with your attorney the night before the

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trial in a hotel room or conference room; this is, after all, a business trip. After the trial, of course, you are free to visit friends and family at your own discretion. My first move on entering a hotel room, after I put down my luggage, is to make a beeline to adjust the hotel’s alarm clock or clock radio. This move ensures that some eager-beaver salesperson who had to rise at 4:00 A .M. 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, rendering you bleary-eyed and incoherent on the stand the next day and giving rise to unfounded rumors about your substance abuse. My second move often is to arrange a do-it-yourself humidification of the room. Whether the room’s air system is heating in winter or cooling in summer, the air is invariably dry in most hotels, a situation that can leave you hoarse, congested, and headachy on the stand. A simple but effective method is to soak a washcloth or hand towel in cold water, wring it out thoroughly so that it doesn’t drip, and fasten it over the air inlet in your room so that the incoming air blows through the damp cloth. If a paper clip or safety pin does not suspend the cloth or towel well, you can often wad up the corners and jam them between the top louvers of the inlet so that the cloth or towel hangs across the incoming air inlet. Remoisten it as needed. Don’t forget to set the room thermostat to your accustomed household temperature. Hang up everything and spray items that need it with commercially available wrinkle-smoothing liquid, or hang clothes from the shower rod over a tub of hot water so that the “sauna effect” steams clothes smooth. Some, but not all, hotels provide irons. Arrange your wake-up call so that it allows ample time for an unrushed breakfast and last-minute case review; back up the call with your travel alarm. Finding a hotel that is close to the courthouse saves you much lastminute rushing and buys you some morning time as well. 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, an essential part of effective testimony.

Secrets of Eating In traveling to court, obviously you should eat lightly and stick to what is familiar to you. Experimenting with culinary exotica is asking for a case of turista at worst; nausea on the witness stand also may be misinterpreted. It is probably safest to avoid all alcohol during the trip before testimony; if desired, have your martini on the airplane home after it is all over.

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At court during the lunch break, as noted, also eat lightly. Consider only coffee or iced tea or a fruit drink to avoid afternoon sluggishness of thought and energy level. After court, you can have a serious meal without ill effect.

Secrets of Sleeping One of the greatest pitfalls for the traveling expert is dealing with the stress of sleeping in a different place, or even a different time zone, by using either alcohol or sleeping pills (barbiturates, benzodiazepines, or others) at bedtime. These have ill effects, including hangovers, and with sleeping pills, actual memory loss can occur—the last thing you need. Far better results accrue from sleep hygiene maneuvers, hot baths, breathing techniques, and similar relaxants. Melatonin in low doses (about 1–3 mg) appears to be reasonably effective without ill effects, but all the data are not in. When possible, of course, plan your trip to allow time for recovery from jet lag. Many travelers find it helpful to block out morning sunlight with the drapes, either by closing them completely or fastening gaping fabrics with safety pins. When you are up and awake, spending some time in direct sunlight may be helpful in adjusting your biologic clock. A useful approach to dealing with the problem of ambient noise (such as the flushing of the toilet next door at 4:00 A .M., the roar of early morning delivery or garbage trucks in the hotel parking lot or airplanes overhead, the chatter of housekeeping staff just outside your door) is white noise. This term refers to sounds containing all frequencies, just as white light contains all color wavelengths. Ordinary AM radio static and the sound of surf are two examples of white noise. 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. Catalogs sell portable battery-operated white-noise generators, usually described in catalogs as “sound soothers,” sleep sound machines, or similar terms. White noise masks ambient noise effectively and creates a sensory monotony that is a significant sleep aid, without aftereffects; I recommend it.

What to Take to Court Courthouses are notably lacking in amenities, so you may have to carry some supplies in your pocket or purse. Examples include prescription medications that you need during the course of a long day; some alcohol wipes or other pocket-size cleansing products or hand sanitizers for hand cleaning, stain

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removal, or refreshment; cough drops, mints, or throat lozenges; and a headache remedy for the obvious problem. Note that anything in a metal pillbox or foil-wrapped packet may set off the sensitive metal detectors used in some courthouses. Although some of the pointers in this chapter probably state the obvious, I hope that these tips make your travel easier and less surprising. I welcome your suggestions and favorite travel tips.

References 1.

2.

3.

4.

5.

Gilford J: The Packing Book: Secrets of the Carry-On Traveler. Berkeley, CA, Ten Speed Press, 1994 (An excellent guide to what to take and how to pack it; sample wardrobes and general travel pointers included as well.) Fairchild D: Jet Smart: Over 200 Tips for Beating Jet Lag. Berkeley, CA, Celestial Arts Publishing, 1992 (A bit New Age but filled with useful tips from a former flight attendant who really knows the ropes.) Gutheil TG, Slater FE, Commons ML, et al.: Expert witness travel dilemmas: a pilot study of billing practices. J Am Acad Psychiatry Law 26:21–26, 1998 Gutheil TG, Commons ML, Miller PM: Expert witness billing practices revisited: a pilot study of further data. J Am Acad Psychiatry Law 29:202– 206, 2001 Simon RI, Gutheil TG: The forensic expert practicing on the road: new hazards along the way. Psychiatric Annals 33:302–306, 2003

Suggested Readings Greenberg P: The Travel Detective: Flight Crew Confidential. New York, Villard, 2002 McAlpin A: Pack It Up: A Book for the Contemporary Traveler. Seattle, WA, Flying Cloud Publishing, 1996 (Multiple packing tips with more attention to women’s packing challenges than most of these other references.) Savage P: The Safe Travel Book, Revised. San Francisco, Jossey-Bass, 1988 (Incredibly detailed, with the emphasis on safety and security issues.) St. James E: The Secrets of Simple Packing (VHS videotape). Santa Barbara, CA, Magellan’s International, 1996

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

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Appendix 1

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

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Consent for Forensic Examination by Thomas G. Gutheil, M.D. (“Dr. Gutheil”)

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

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Appendix 1: Consent Form for Forensic Examination

5. Any report in relation to my case will not go to me but will go directly to my attorney, Dr. Gutheil’s retaining attorney, a court officer, or the court as provided by law; that individual is, of course, free to show it to me. Signed this

day of

, 20

PRINT NAME SIGNED WITNESS Statement by examinee’s attorney: I have explained this consent procedure to my client and, to my assessment, he/she appears competent to understand it. I certify that I have answered any questions my client asked about the procedure. Signed, Attorney for examinee Print name

Date

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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). Each detail in this agreement emerged from an attempt at evasion of fiscal responsibility by some attorney or insurer; in addition, the radical revision presented here has evolved from that in the first edition for the same reasons.

Standard Letter of Agreement by Thomas G. Gutheil, M.D. (“Dr. Gutheil”)

1. In consideration of his agreeing (a) to serve as consultant/expert (b) to the undersigned, Dr. Gutheil shall be reimbursed for all time spent on the case, including portal-to-portal local travel (c), at a rate of $ per hour plus expenses; $ for depositions, with 2 hours fee due 3 business days in advance as a condition for scheduling the deposition, and the same due for cancellations that occur less than 72 hours in advance; and $ per hour for trial. Examinees who fail to appear for their duly scheduled independent medical examinations incur a charge of 2 hours; rescheduling is at mutual convenience. (d)

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

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). (s) Note: Please send all case materials to (address)

Date

Appendix 2: Standard Fee Agreement

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

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

Appendix 3

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

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

Appendix 4

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

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

Appendix 4: Suggested Readings and Web Sites

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Siegert M, Weiss KJ: Who is an expert? Competency evaluations in mental retardation and borderline intelligence. J Am Acad Psychiatry Law 35:346–349, 2007 Simon RI (ed): Post-Traumatic Stress Disorder in Litigation, 2nd Edition. Washington, DC, American Psychiatric Press, 2003 Simon RI, Gold LH (eds): The American Psychiatric Textbook of Forensic Psychiatry. Washington, DC, American Psychiatric Press, 2004 (Study guide available since 2006.) Simon RI, Shuman D: Clinical Manual of Psychiatry and Law. Washington, DC, American Psychiatric Press, 2007 Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ, Erlbaum, 1996 Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Expert Witness. New York, Wiley, 1993 Warren RA: The Effective Expert Witness: Proven Strategies for Successful Expert Testimony. Lightfoot, VA, Gaynor Publishing, 1997 Younger I: The Art of Cross Examination. Washington, DC, American Bar Association, Section of Litigation, 1976 Zobel HB, Rons SN: Doctors and the Law: Defendants and Expert Witnesses. New York, WW Norton, 1993

Other Media http://www.aapl.org: The main Web site for the American Academy of Psychiatry and the Law, the national forensic psychiatric organization. All experts should join. http://www.SEAK.com: A host of resources by two top attorneys, publishing a vast range of information and offering excellent training courses. http://pipatl.org: Web site of the Program in Psychiatry and the Law, Beth Israel-Deaconess Medical Center, Harvard Medical School. A compendium of sources, articles, and links. Disclosure: This author is a founder. http://forensic-psych.com: Web site of author’s colleague HJ Bursztajn, MD, with multiple resources, links, and postings. http://www.reidpsychiatry.com: A resource-rich site with articles, discussions, and links. http://tncrimlaw.com/forensic/f_psych.html: Another multiple resource site. Gutheil TG, Kochansky J: The Complete Psychiatric Examination (videotape). Falmouth, MA, SEAK, 2001

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Glossary

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

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

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

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

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

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

Index Attire at trial. See Clothing; Dress and appearance Attorneys communication with opposing attorneys, 47–48 depositions, consulting with retaining attorney during, 65 fighting at depositions, 68 honesty of. See Ethics informing of availability as forensic expert, 105–106 loyalty to retaining attorney, 16 meeting with before deposition, 70 merit of retaining attorney, 30–32 misunderstanding of clinical issues, 82 negotiations with retaining attorney, 24–29 social relationships with, 16 work product privilege, 4–5, 70 “Attorneys’ Guide to Experts,” 106 Audiotaped interviews, 35

Accessibility airplanes, 115 courtroom, 74 Accuracy, 60 Addressing judge at end of testimony, 87–88 Admissions, 59–60 Advances minimum fee, 61 retainers, 14 Adversarial context, 3–4 Advertising, 7, 52, 104 Advocate for truth, ethical model, 15 Agency relationship, 4–5, 23–24 Air travel, 115 airline guides, 112 first class, 115 meals, 115 Alarm clocks, 116 Alcoholic beverages, 117 “Alibi” issues, 37 Alterations ethical, 100 of expert opinion, 32, 82 of reports, 100–101 Alternative scenarios, 37–38 Ambivalence, 4, 121 American Academy of Psychiatry and the Law (AAPL), 8, 49, 105–106 American Board of Forensic Examiners, 106 American Psychiatric Association (APA), 45, 49, 105–106 Analogies and metaphors, use of, 74, 82–83 Announcement of forensic practice, 105 Assumptions, 68–69

Background of expert, 25 Beat the Press (Fulton and Guyant), 106 Beepers at trial, 77 Bias, xiii, 4, 16–18, 52, 19 hindsight bias, 44, 62 needed for forensic functioning, 9 nonsexual seduction, 17 problems of loyalty and identification, 16 treater bias, 18 Billable time, 26–28, 113 Bipolar disorder, apparent, 63 Blackboard illustrations at trial, 80 Body language, 78. See also Demeanor

141

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

Borderline personality disorder (BPD), 82 Breaks and recesses depositions, 61 trial, 85–86 Brokerage organizations for expert witnesses, 7–8, 107 Brokering a case when unable to handle it personally, 108 Browbeating by retaining attorneys, 32 Building a practice, 103–108 Camera, 70–71. See also Video depositions gazing into the lens, 71 Candor, 19 Capital criminal cases, 14 Carry-on luggage, 113–114 Case name or citation in written report, 97 Case review, 29–40 documents, review of, 33–34 merit of attorney, 30–32 “nothing to go on” problem, 33 scheduling, 33–34 threshold question, 30 validity of case, 30 Causation, 39–40 Cellular telephones, 77 Change of opinion, 32, 82 Child abuse issues, 17, 40 Child custody cases, 4 Class action cases, 23 Clinical material, 34 misunderstood by attorney, 82 Clothing packing for travel, 113–115 trial appearance, 77 unpacking at hotel, 116 Coaching, questions about, 65, 74 Code language between attorney and expert, 81 Communication with opposing attorneys, litigants, or experts, 47–48 Competence issues, 62, 135

Complaint, 34 Compound questions at depositions, 62–63 Comprehensive Textbook of Psychiatry (Kaplan and Sadock), 69 Concentration at depositions, 61, 66 Concessions at depositions, 59–60, 65–66 Confidentiality breaches as basis for suit, 44 nonconfidentiality warnings, 5, 13–14, 38 Conflict of interest, 4, 25 Conflicting stories from parties in case, how to handle in written reports, 99–100 Consent Form for Forensic Examination, xiii, 24, 121–123 Constraints on time, money, or data, 100 Consultation services, legal, 28–29 Contingent fees, 28 Correction of answers at depositions, 64–65 Cough drops or throat lozenges at trial, 77, 118 Counsel. See Attorneys Countertransference, 16, 33 The court, letters to, 95 Court reporters, 83 Courtrooms, 73–79, 116–117 metal detectors at, 118 Criminal cases capital cases, 14 criminal responsibility cases, 48–49 involving the insanity defense, 48–49, 99, 137 report, example of outline, 101–102 Crises while testifying at trial, 86–87 Cross-examination, 18–19, 58–59 avoidance by attorney, 83 breaks and recesses during, 85–86 code language between attorney and expert, 81 delaying tactics, 86

Index demeanor during, 80–82 leading questions, 84 pauses before answering, 85 quotes, 85 reasons for, 83 trial, 83–86 “yes” or “no” questions, 85 Dangerous examinees, 34 assessing, 31 Database, 5–6, 34, 135. See also Interviews; Records leaving behind after trial, 88 trial preparation, 73 use during trial, 76–77 written documentation to give listing of, 97–98 Daubert challenge, 75 Decision to take case, 29 Defendant. See Parties in case Demeanor cross-examination, 80–82 of examinees during interviews, 38 of experts at depositions, 68 of experts at trial, 77–79 Departure from courtroom, 87–88 Depositions, 58–70, 135 admissions in, 59–60 assumptions, 68–69 breaks and recesses during, 61 compound questions or answers, 62–63 concentration during, 61, 66 concessions, 59–60, 65–66 consulting with retaining attorney during, 65 correction of answer, 64–65 curious questions, 66–67 demeanor of deponent expert, 68 fighting by attorneys at, 68 final preparation, 70 “gerrymandering” clinical data, 63 goals of expert being deposed, 58–60 goals of opposing attorney, 58–60 inappropriate questions, 66–67

143 interruptions, 64 language/word choice, 64–65 later evidence affecting opinion given at deposition, 59 limits of expertise, 66–67 locking in/limiting expert’s testimony, 60 malpractice suits, review of, 47 nonverbal responses, 64 objections, 64 opinions and their bases, 59 past, vast amounts of now stored online, 26 pauses before answering, 64 priority, 91–92 privileged information, 65 questions and answers, 62–63 reviewing, 34 stenographers in, 64, 68 treatises, questions about, 69–70 videotaping of, 70–71 Diagnostic and Statistical Manual of Mental Disorders (DSM), 69 Direct examination, 79–80 restructuring, 92 Disabled individuals access to airplanes, 115 access to courtroom, 74 Disclosure issues, 4–5, 135. See also Confidentiality; Privilege Discovery, 57–72, 135. See also Depositions interrogatories, 57–58 nondiscoverable material. See Privilege Documents. See Records; Reports; Written documentation Doing no harm, 8 Double billing, 113 Dress and appearance packing for travel, 113–115 trial, 77 unpacking at hotel, 116 Drinking, 117 Drugs, over-the-counter, 114

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THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION

Eating. See Meals Emotional injury cases, 49–51 examples, 50–51 interviews, 49–50 Employment relationship, 24 Entrance of judge, 75 Ethics, 13–21. See also Conflict of interest advocate for truth model, 15 altering reports, 100–101 billing, 113 contact with opposing attorneys, litigants, or experts, 47–48 cross-examination, 18–19 honest advocate model, 15 loyalty to retaining attorney, 16 marketing a forensic practice, importance, 107 new facts at trial, 82 nonconfidentiality warnings, 5, 13–14, 38 “nothing to go on” problem, 33 oaths, deposition and trial, 15 social relationships with attorneys, 16 turndown rates, 14–15 Etiquette at trial, 75–79, 87–88 Evidence, 67 Expenses. See Fees; Reimbursement for travel Expert witnesses. See also Hired guns definition, 1 functions, 1–3 Experts honesty of, 15 remaining neutral, 17 special expertise of, 25 External consistency of story, 37 Eye contact at trial, 80 Fabrics, for travel, 112 Failure of retaining attorney to pay fee, 28 Fairness, principles of, 6, 38, 60 False allegations, of sexual misconduct, 36 “False memory” cases, 44

Family or friends, staying with, 115 Feedback, always soliciting, 88 Fees, 26–28 detailed fee agreement, sample, 28, 129–130 standard fee agreement, sample, 28, 61, 125–128 travel costs, 113 Fitness as expert, 25 Flashlight, 115 Flip charts at trial, 80 Flying. See Air travel Food. See Meals Forensic countertransference. See Countertransference Forensic practice, xiii–xiv evidence in, 67 marketing, 103–108 Forensic reports, 95–96. See also Written documentation Forensics, scholars in, 2 Forms detailed fee agreement, sample, 28, 129–130 standard fee agreement, sample, 28, 61, 125–128 Gestures at trial, 78 Global requests, issuing, 32 Good writing, principles of, 96 Harm, doing none, 8 Hearsay, 6 High-profile cases, 51–52 Hindsight bias, 44, 62 Hired guns, 7–8, 136 spotting the other side’s, 52–55 History of expert, 25 Honest advocate, ethical model, 15 Honesty. See also Ethics of attorneys, 30–32 of experts, 82 Hotels, 112–113, 115–116 Humility factor, 9 Humor, 78

145

Index Identification with retaining attorney, 16 Insanity defense in criminal cases, 48–49, 99, 137 Insurance challenges, 18 Integrity, 18–19, 107 Interference of attorneys during interviews, 36 Internal consistency of story, 36 Interrogatories, 57–58, 137 Intervening causes, 39 Interviews, 34–38 “alibi” issues, 37 alternative scenario, 37–38 criminal responsibility cases, 49 demeanor of examinee, 38 emotional injury cases, 49–50 external consistency of story, 37 interference, 36 internal consistency of story, 36 nonconfidentiality warnings, 38 note taking, 35 order of, 34–35 plaintiff, 34–35 plausibility of case, 36 presence of attorney, 35 priority, 91–92 recording, pros and cons, 35 retention of records, 40 videotaping or recording, 35 Involuntary gestures at trial, 78 Jargon, 79, 82 Jet Smart (Fairchild), 112 Judges addressing, 87–88 dismissal by, 6 entrance of, 75 informing of availability as forensic expert, 105 Judgment, suspending, 45 Juries, 2 entrance, 75 respect for, 83 testimony before, 79–80 Jurisdiction-specific language, 98

Laptops, 115 Lawyers. See Attorneys Leading questions on crossexamination, 84 Leaving courtroom, 87–88 Lecturing as marketing tool, 106 Letters to attorneys, 97 to the court, 95 Likelihood principle, 7 Listings as a marketing tool, 106 Locality rules for standard of care, 45 Lodgings. See Hotels Loyalty to retaining attorney, 16, 86 Malingering, 6–7, 37, 49, 52 Malpractice suits, 43–48 creating timelines for, 34 depositions, review of, 47 elements of malpractice, 45 locality rules, 45 records, level of scrutiny, 46–48 social service history, 47 standard of care, 45–46, 53, 138 Marketing a forensic practice, 103–108 announcement of practice, 105 ethics, importance of, 107 lecturing, 106 listings, 106 publishing/writing, 106 specialization, 107 strategies, 104–107 Mastering Forensic Psychiatric Practice: Advanced Strategies for the Expert Witness (Gutheil and Simon), 119 Materials, for travel, 112 Meals airplane food, 115 during trial, 86, 116–117 Media coverage and cases, 51–52 Medical records, 34

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Medication issues as basis for suit, 44 Melatonin, 117 Metal detectors at courthouses, 118 Metaphors and analogies, use of, 74, 82–83 Microphone use at trial, 80 Misunderstanding of clinical issues by attorney, 82 Mitigation of damages, 49–51 Morality, questions of, 67 National Forensic Center, 106 Negligence, 45, 54, 66, 137 Negotiations with retaining attorney, 24–29 background of expert, 25 bias, 14, 16–18 clinical and forensic issues, 24 decision to take case, 29 fees, 26–28 fitness as expert, 25 initial contact, 24 request of retaining attorney, 24–25 timing and scheduling, 26–28 Networking, 104. See also Marketing a forensic practice New facts at trial, effect of, 82, 86 Nonconfidentiality warnings, 5, 13–14, 38 Nonsexual seduction, 17–18, 137 Note taking importance of, 47 during interviews, 35, 77 keeping notes, 40, 71 Oaths, 137 depositions, 15, 65, 82 interrogatories, 57–58 trial, 15 Objections depositions, 64 interrogatories, 57–58 Objectivity, not compromising, 16, 30 Occasions, writing for, 97

Online. See also Web sites storage of past depositions, 26 Opposing attorney, goals of, 58–60 Opposing expert witnesses, 52–55 contact with, 47–48 Outcome of case, 88 The Packing Book (Gilford), 112 Packing for travel, 113–115 Parties in case case name or citation in written report, 97 communication with opposing party, 47–48 plaintiff interviews, 34–35 Patience, 68 Pauses before answering cross-examination, 85 depositions, 64 Peer review for testimony, 8 Pens and pencils at trial, 77 Personal injury cases. See Emotional injury cases Physicians’ Desk Reference (PDR), 69 Plaintiff. See Parties in case Plausibility of case, 36 Politeness, unfailing, 81 Postreport negotiations, 100–101 Posttraumatic stress disorder, 49–51 Practice pointers, 91–93 Precautions, while traveling, 115 Preexisting illnesses or conditions, 39 vulnerability of plaintiff (“thin skull”), 50 Preliminary reports, 97 Preparation for trial. See Trial preparation Prescription medications, 114, 117 Pretrial conferences, 74 Prior testimony by expert, 25–26 Priorities, 91–92 Privilege, 138. See also Confidentiality deposition, consulting with retaining attorney at, 65 work product privilege, 4–5, 70

Index Pro bono work, xiv, 107, 138 Professional meetings, 106 Psychiatric malpractice suits. See Malpractice suits The Psychiatrist in Court: A Survival Guide (Gutheil), 24 Publications by expert, 25–26 as marketing tool, 106 Publicity and cases, 51–52 Quoted passages, review of, 85 Readings, suggested, 131–133 travel books, 112 Reality-testing, 25 Reasonable medical certainty, 7, 79, 138 Rebuttals, 100 Recesses. See Breaks and recesses Recorded interviews, 35 Records, 40 case review, 33–34 CATO model for, 46 criminal responsibility cases, 49 database of, 5–6, 34 malpractice cases, level of scrutiny, 46–48 medical records, review of, 34 retention of, 40 social service histories, 47 Referrals, 15, 33, 104–106, 108 written documentation, 97 Rehearsing testimony, 74 Reimbursement for travel, 113 Relatives, staying with, 115 Rental cars, 112 Reports, 31–32, 92, 95–102. See also Written documentation Reputation of expert, 25 Required action, 54 Resources for suggested readings, 131–133 travel books, 112 Respect, showing toward juries, 83 Retainer, obtaining in advance, 14

147 Retaining attorney, negotiations with. See Negotiations with retaining attorney Retention of records, 40 Returning calls, importance of, 108 Roles of expert, 28–29 Running shoes, traveling with, 112–113 Santayana, George, 6 Scheduling issues, 26–28, 73–74, 91–93 personal conflicts, 93 Seating at trial, 75–76 Seduction, nonsexual, 17–18 Self-serving behavior, 6–7, 49 Sequestration, 138 of witnesses, 75 Sexual misconduct cases, 36, 38–39, 44, 82 Silent treatment, 66 Simon, Robert I., 9, 119 Site visits, 70 Skepticism, maintaining appropriate, 6, 9, 48 Sleeping, 117 Social relationships with attorneys, 16 Social service history, 47 Socratic method, 6 Specialization, 107 Standard of care, 45–46, 53, 138 Standard of proof, reasonable medical certainty, 7, 79 Stenographers. See also Court reporters in depositions, 64, 68 Storytelling, power of, 3 Suicide malpractice cases, 3, 18, 43–45, 54, 82. See also Malpractice suits Suitcases, 113–114. See also Packing for travel Supplementary reports, 97–98 Supporting data for written reports, 99 Surprised expert, response to, 81 Sworn statements. See Oaths

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Tarasoff-type cases, 44, 55, 139 Taxicabs, 74 Teaching role, 78–80 Telephones calls during trial breaks, 86 cellular telephones, 77 courtroom, bringing into, 77 returning calls, importance of, 108 wake-up calls, 116 Testimony at trial, 79–80. See also Cross-examination prior testimony by expert, 25–26 roles of expert, 28–29 Third-party cases, 44 Throat lozenges or cough drops at trial, 77, 118 Time creating timelines, 34 for depositions, 61, 64 for interviews, 35 keeping track of, 26–28 travel time, 112 Traumas, 51 evaluating, 39–40 Travel books, 112 Travel expenses, 113 Travel service, 112 Traveling, 74, 92, 111–118 billing, 113 examinees, 35 flying, 115 lodgings, 115–116 meals. See Meals packing, 112–115 sleeping, 117 time planning, 112–113 travel information, 112 unpacking, 116 Treater, versus expert, 8–9 Treatises, questions about, 69–70 Treatment recommendations, 37–38 Trial, 73–90 beepers/cellular telephones, 77 breaks and recesses during, 85–86 conclusion of questioning, 87

cough drops or throat lozenges, 77, 118 crises while testifying, 86–87 cross-examination. See Crossexamination demeanor at, 77–79 departure from courtroom, 87–88 dress and appearance, 77 etiquette at, 75–79, 87–88 eye contact, 80 humor, 78 illustrations, blackboard, marker board, or flip chart, 80 language/word choice, 82–83 lunch during, 86, 116–117 microphone use, 80 new facts coming to light, effect of, 82, 86 pens and pencils, 77 pointers, 81–82 priority, 91–92 seating at, 75–76 supplies, 117–118 testimony, 79–80 timing and scheduling tips, 74 using database during, 76–77 water, 77 what to bring into court, 76–77, 117–118 Trial preparation, 73–74 language/word choice, 74 pitfalls, 74 planning, 73–74 practice sessions, 74 presentation, 74, 80 pretrial conferences, 74 rehearsing, 74 Truth telling, 8, 13, 19, 60, 80, 82, 85. See also Ethics; Honesty Turning down cases, 14–15, 139 Type of practice expert has, effect on standard of care, 45–46 Types of cases, 43–56 criminal responsibility cases, 48–49 emotional injury cases, 49–51

Index high-profile cases, 51–52 psychiatric malpractice cases, 43–48 “Ultimate ethical test,” 18–19 “Ultimate issue,” 2, 139 Understanding of clinical issues, misunderstanding by attorney, 82 Values, questions of, 67 Video depositions, 70–71 Videotaped interviews, 35 Visual aids, 74 Voltaire, 7 Waffling in answers, 79, 140 examples of, 53–54 Wake-up calls, 116 Water during air flights, 115 in courtroom during trial, 77 Web sites, 107 Weight to be given to on-site psychiatrist’s observations, 44 White noise, 117 Word choice depositions, 64–65 reports, 100–101 trial preparation, 74, 82–83

149 Word-of-mouth referrals, 104–105, 108 Work product privilege, 4–5, 70, 140 Written documentation, 95–102. See also Records; Reports case name or citation, 97 conclusion, 98–99 conflicting stories from parties in case, how to handle, 99–100 constraints on time, money, or data, 100 criminal case, example of outline, 101–102 database listing, 97–98 headings, 97 interviews/items reviewed, 97–98 jurisdiction-specific language, 98 letters to attorneys, 97 occasions, 97 opinion, 98–99 postreport negotiations, 100–101 preliminary report, 97 principles of good writing, 96 rebuttals, 100 referrals, 97 supplementary reports, 97–98 supporting data, 99