The Psychiatrist As An Expert Witness

The Psychiatrist as
Expert Witness
Second Edition
This page intentionally left blank
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 stan-
dards, and that information concerning drug dosages, schedules, and routes of ad-
ministration 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 re-
sponse not included in this book. For these reasons and because human and me-
chanical 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.
Contents
About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi

Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
1 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
2 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
3 First Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Initial Negotiations With the Retaining Attorney . . . . . . . . 24
The Stage of Case Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4 Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Psychiatric Malpractice Cases . . . . . . . . . . . . . . . . . . . . . . . . . 43
Criminal Responsibility Cases . . . . . . . . . . . . . . . . . . . . . . . . . 48
Evaluation of Emotional Injuries. . . . . . . . . . . . . . . . . . . . . . . 49
High-Profile Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Spotting the Other Side’s “Hired Gun” . . . . . . . . . . . . . . . . . 52
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5 Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57

Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
The Video Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
After the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
6 The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Trial Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
The Daubert Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Practical Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Crises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
The End of the Affair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
7 Some Pointers on Expert Witness Practice . . . . . . . . . . . 91
Scheduling Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Trial Time Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Your So-Called Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
8 Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95

The Forensic Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
The Experience Factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
The Criminal Report: An Example . . . . . . . . . . . . . . . . . . . . 101
Suggested Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
9 Developing and Marketing a Forensic Practice . . . . . . 103

The Key Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
The Delicate Balance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
What About Web Sites? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Additional Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Suggested 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
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 Fel-
low of the American Psychiatric Association. He is the first professor of
psychiatry in the history of Harvard Medical School to be board certi-
fied 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 be-
tween psychiatry and the law. Recipient of every major award in the fo-
rensic field, he has received local and national writing and teaching
awards; the textbook, Clinical Handbook of Psychiatry and the Law, co-
authored with Paul S. Appelbaum, M.D., and now in its fourth edition,
received the Manfred S. Guttmacher Award as the outstanding contri-
bution to forensic psychiatric literature.
xi
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 te-
dious stretches of waiting and inactivity, interspersed with frenzied
bursts of action; it is refreshingly free of managed care and its con-
straints on good treatment but presents many new and complex restric-
tions 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 edi-
tion—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 edi-
tion 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
xiv THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
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 ma-
terial 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 in-
struction 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 mentor-
ing and guidance that were not readily available in the past; whenever pos-
sible, concrete advice replaces abstract theorizing, and informal discussion
in a user-friendly tone replaces scholarly discourse. I hope you find this ap-
proach 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 Massa-

chusetts Mental Health Center, Harvard Medical School, for the ongo-
ing 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 as-
sistance 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.
xv
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 de-
fined, is a psychiatrist who uses particular skills, both clinical and nonclini-
cal, 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 ex-
perience; 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
2 THE PSYCHIATRIST AS EXPERT WITNESS, SECOND EDITION
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 mecha-
nism 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 tes-
timony 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, opinion-
phrased 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 per-
form its decision-making function.
Under this model, the court system needs expert witnesses in a bur-
geoning variety of technical fields, from ballistics to the temperature of cof-
fee 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 be-
cause 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 tes-
tifying about....I do not want someone who [merely] teaches others about it.
Introduction: What Makes an Expert? 3
Another scholar, a law professor, went even further by listing the func-
tions 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 enti-
ties, 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 sto-
rytelling 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.
Compare how treatment planning might occur in the inpatient setting. Al-
though there may be as many views of the patient as there are team mem-
bers, the team is expected to reach some sort of consensus about the treat-
ment 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 sit-
uation 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 physician-
patient relationship (i.e., in the clinical context, you usually work for the pa-
tient; 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 cus-
tody 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 evalua-
tor, 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, mean-
ing 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-
munications from the retaining attorney to the expert are generally discov-
erable, 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 nondiscover-
able 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). There-
fore, 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 rep-
resents 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, re-
ports, correspondence, my own or others’ interview notes, and relevant lit-
erature. 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 the-
ory or whim, fantasy, or impression. Although therapy usually transpires
within the patient’s self-reported data, the forensic perspective almost al-
ways 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 da-
tabase 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 nov-
ice expert accustomed to seeking all possible input for the care of the patient.
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 clin-
ical 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 le-
gal process. Yet the court may be driven by principles of fairness, which pre-
clude 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 con-
siderations of precedent, prejudice, hearsay, fundamental fairness, and the like
(4). The witness should be guided by the maxim: when entering the court-
room, 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 testi-
mony, 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 in-
centives 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
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 tes-
timony at the requisite standard of proof called reasonable medical certainty
(sometimes described as reasonable psychiatric certainty, reasonable medi-
cal 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 vari-
ant. Deciding where this level of certainty lies for the expert is one of the crit-
ical 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 psychia-
trists, 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 va-
lidity. Such individuals can be recognized not only by the baselessness of
their opinions but also often by their use of 1-800 telephone numbers. Al-
though 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 broker-
age organizations that specialize in matching willing experts with attor-
neys. As a general rule, honest experts should avoid these approaches to
finding work, if only to avoid guilt by association and possible caricature by

opposing attorneys (see also Chapter 9, “Developing and Marketing a Fo-
rensic Practice,” in this volume).
The importance of having a salaried “day job” or a private clinical prac-
tice 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 opin-
ions (instead of recognizing that experienced, ethical experts can disagree)
may view anyone’s opinion that opposes their own as hired gun material. Of-
ten no absolute standard exists by which to measure opinion testimony, so
this question may be difficult to resolve in any objective sense without anal-
ysis of that expert’s database, reasoning, case materials, and corroborating
data.
A valuable development in this area has been the introduction of peer re-
view 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 pa-
tient 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
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 incompatibil-
ities, 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 serv-
ing 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 ex-
pert’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 pro-
found scholarship and dazzling testimony on the stand (8). Some attorneys
report that their only use of experts is to neutralize or cancel out the tes-
timony (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 psychia-
trist Robert Simon, M.D., has expressed it thus: “The expert witness is a
hood ornament on the vehicle of litigation, not the engine.” This provoca-
tive 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.
References
1. 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
2. Gutheil TG, Dattilio FM: Practical Approaches to Forensic Mental
Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins
(Wolters Kluwer), 2007
3. Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington,
DC, American Psychiatric Press, 1998
4. Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the ad-
missible truth”: an ethics dilemma for expert witnesses. J Am Acad Psy-
chiatry Law 31:422–427, 2003
5. Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: role con-
flict in serving as both psychotherapist and expert witness. Am J Psychi-
atry 154:448–456, 1997
6. Schouten R: Pitfalls of clinical practice: the treating clinician as expert
witness. Harv Rev Psychiatry1:4–5, 1993
7. Appelbaum PS: A theory of ethics for forensic psychiatry. J Am Acad
Psychiatry Law 25:233–247, 1997
8. Gutheil TG, Simon RI: Narcissistic dimensions of expert witness prac-
tice. 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, Deposi-
tions, Testifying and Everything Else You Need to Know. New York,
Guilford Press, 2002
Bronstein DA: Law for the Expert Witness. Boca Raton, FL, Lewis Publish-
ers, 1993
Buchanan A: Psychiatric evidence on the ultimate issue. J Am Acad Psychi-
atry 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
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 exper-
tise. Int J Law Psychiatry 13:281–307, 1990
Gutheil TG, Hilliard JT: The treating psychiatrist thrust into the role of ex-
pert witness. Psychiatric Services 52:1526–1527, 2001
Quen JM: The psychiatrist as expert witness, in The Psychiatrist in the Court-
room. 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
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 direc-
tions at every fork in the road, while a judge alternately stomped on an un-
reliable 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 chap-
ter, I address these ethical concerns and the means by which to keep your in-
ternal compass pointing to “ethical north.”
The Nonconfidentiality Warning

Although forensic nonconfidentiality has been broached in Chapter 1 (“Intro-
duction: 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 be-
13
gins with warnings about the differences between the forensic and clinical in-
terview and, if necessary, repeats those warnings if the examinee appears to be
slipping into a state of therapeutic self-disclosure. The warnings (carefully doc-
umented, of course) are especially important in capital criminal cases in which
a life may literally hang in the balance. The warnings in the appropriate lan-
guage 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 turn-
down 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 per-
centage 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 informa-
tion 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?
The Expert’s Ethical Universe 15
Note also that you may be in a position to refer cases to colleagues who
are known to you as having perspectives different from your own on, for ex-
ample, 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 ac-
cept. 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 in-
tegrity 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 sys-
tem 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 re-
tained 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 advo-
cate 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.”
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 re-
lationship pose potential ethical problems.
First, under the rubric of loyalty, just what does the expert owe the re-
taining 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 sur-
prise 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 limita-
tions, 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 identifi-
cation 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 testi-
mony or both. This difference is significant.
Extending this idea, might extensive socializing with the retaining attor-
ney—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 vary-
ing forms of bias are discussed below.
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 re-
tentions, and may add blandishments such as dinners at expensive restau-
rants and the like. The situation does reveal some complexity, of course. As-
suming 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 ap-
propriate 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 ca-
seload that now seem tailor-made for this expert’s qualifications. The chal-
lenge for the expert is to distinguish such reasonable and appropriate events
from venal attempts at swaying the expert into a favorable opinion in the in-
stant 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 ex-
aminer. 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 overidentifi-
cation with the judge or the “system.”
Note also that, as a clinician, you are expected to manage your coun-
tertransference toward the examinee or the examinee’s actions; if the coun-
tertransference is unmanageable, you should refer the case. If you are a vic-
tim 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 pur-
pose 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 sys-
tem or even by the experts themselves; bias can be exceedingly subtle. The
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 hind-
sight bias—the belief that an outcome is more likely because it has already
occurred—bedevils all forensic work, since almost all litigation (except pos-
sibly 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 objectiv-
ity. 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) re-
sisting attempts to compensate for possible bias (since attempts to correct
one’s own biases may constitute disingenuousness); and 3) directly address-
ing 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 malprac-
tice 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 rele-
vant 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-exami-
nation. On direct examination, the lawyer will take you through your cre-
dentials, 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 dubi-
ous issues, anticipating relevant cross-examination, and so on.
Cross-examination is new territory, spontaneous and unrehearsed. Dur-
ing the cross-examination, the holes and limits of your side of this case will
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 en-
amored 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 differ-
ent. Such candor may well enhance their credibility. Again, none of this in-
formation 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.
References
1. Baker TO: Operator’s Manual for a Witness Chair. Milwaukee, WI, De-
fense Research Institute, 1983
2. Appelbaum PS, Gutheil TG: Clinical Handbook of Psychiatry and the
Law, 4th Edition. Baltimore, MD, Williams & Wilkins, 2007
3. Gutheil TG, Simon RI: Mastering Forensic Psychiatric Practice: Ad-
vanced Strategies for the Expert Witness. Washington, DC, American
Psychiatric Publishing, 2002
4. Gutheil TG, Commons ML, Miller PM: Withholding, seducing and
threatening: a pilot study of further attorney pressures on expert wit-
nesses. J Am Acad Psychiatry Law 29:336–339, 2001
5. Slovenko R: Discrediting the expert witness on account of bias. Psychi-
atric Times, December 2004, pp 33, 36, 38, 39
6. Gutheil TG, Simon RI: Avoiding bias in expert testimony. Psychiatric
Annals 34:260–270, 2004
7. Gutheil TG, Simon RI: Attorneys’ pressures on the expert witness: early
warning signs of endangered honesty, objectivity and fair compensa-
tion. J Am Acad Psychiatry Law 27:546–553, 1999
8. 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 prob-
lem of doing harm. Int J Law Psychiatry 13:249–259, 1990
Brodsky SL, McKinzey RK: The ethical confrontation of the unethical foren-
sic colleague. Prof Psychol Prac Res 33:307–309, 2002
Candilis PJ, Weinstock R, Martinez R: Forensic Ethics and the Expert Wit-
ness. New York, Springer Science & Business Media, 2007
Dike CC: Commentary: is ethical forensic psychiatry an oxymoron? J Am
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
Norko MA: Commentary: compassion at the core of forensic ethics. J Am

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
CHAPTER 3
First Principles
IN CLINICAL WORK, the patient is your employer; that is usu-

ally 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 ex-
aminee, 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 opin-
ions. That relationship is also a source of certain pitfalls of bias, discussed in
the previous chapter and later in this chapter. Consultative experience sug-
gests that the failure to ask the basic question of agency is the frequent cause
of inadequate examination, ineffectual testimony, and compromised work-
ing 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 examina-
tion 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 rep-
resentation (such as a tort case concerning toxins, or some kind of class ac-
tion), you still work only for your retaining attorney and, indirectly, that at-
torney’s client, regardless of what is going on with other experts or treaters.
23
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 vol-
ume, The Psychiatrist in Court: A Survival Guide, and in Appendix 1 (“Con-
sent Form for Forensic Examination”) to that volume. If this issue is in ques-
tion, refer to those sources.
Initial Negotiations
With the Retaining Attorney
Although psychotherapy is generally said to begin at the moment of eye con-
tact between patient and therapist, an expert witness relationship usually be-
gins with a telephone conversation between you and the attorney who is
seeking an expert. This telephone call is far from a mere administrative for-
mality. Instead, some vital information must be obtained to make the entire
future relationship smoother and more valuable to both parties. In this chap-
ter, 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 in-
tentionally 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-exam-
iner 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 expe-
rience, 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-
First Principles 25
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 knowl-
edge 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 per-
sonal 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 eld-
erly 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 malprac-
tice suit, however baseless? Are you now being investigated by the board of
registration for some allegation, no matter how unfounded? Do you have a
history of problems in the military, juvenile offenses, a criminal record (no

matter how minor), credentialing problems in the past, and similar prob-
lems? 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 med-
ical malpractice trials over which it has presided, the ultimate beneficia-
ries, in an economic sense, are truly the physicians who demand and usu-
ally 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 pre-
ceding 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 fo-
cuses on the experts, who are the strangers in the courtroom.
Second, the judge commits the technical error that yet captures per-
fectly 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 confu-
sion about the treater-expert distinction: that oath applies to the treatment,
First Principles 27
not the forensic context, since the doctor-patient relationship is not perti-
nent 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 testi-
mony, only for my time.” Other witnesses may take this further: “My testi-
mony 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 de-
livered.
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 (pref-
erably 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 fo-
rensic assessment is part of the work.
Extensive experience has indicated to me that if a potential retaining at-
torney 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
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 attor-
ney. 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 vi-
olation 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 re-
ported 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 antic-
ipate duplicity by some attorney.
Ethically speaking, your fee should never be contingent; you are charg-
ing 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 in-
vestment in any form in the outcome of the case. It should, ideally, be a mat-
ter 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
First Principles 29
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 ex-
perts 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 parti-
san 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 with-
out 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 consecu-
tive 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 agree-
ments 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.
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 con-
sultative 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 settle-
ment 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 at-
torney’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 ex-
ample, I was once retained to perform an independent examination of a pa-
tient 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
First Principles 31
the old record, however, I found an earlier evaluation by a friend and col-
league 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 sig-
nificant violence.
Somewhat annoyed, I telephoned the attorney and demanded to know
why he had withheld this history. The attorney’s response was pathogno-
monic: “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 ex-
ample 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 conclu-
sions, 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 knowl-
edgeable group of attorneys will be educated by your discussion.
Some attorneys, however, will argue with you at this point, and the ar-
guments fall into two categories. In the first, the benign category, the attor-
ney 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 at-
torney 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
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. Al-
though 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, multimil-
lion-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 at-
torney 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 dis-
cussion moved into argument; finally, I said I would change nothing, hung
up, and withdrew from the case. The case illustrates the variety of negotia-
tions ethically possible and the point at which lines must be drawn.
It is important to ask for everything from the attorney, even if some ma-
terial is irrelevant and other parts are inadmissible. Your request should be
global, regardless of what may be precluded by rules of evidence and discov-
ery. One attorney nearly drove me mad by releasing dribs and drabs of ma-
terial, 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, “withhold-
ing” 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.
First Principles 33
The “I’ve Got Nothing” Problem

Although you prefer to work on a case in which your opinion is robustly sup-
ported 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 eval-
uation on him anyway, because I’ve got nothing. He was photographed doing
the crime.” It is perfectly appropriate for the attorney (who is obligated zeal-
ously 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 con-
sider 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 attor-
ney. 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 at-
tempt to persuade you to amplify or distort your conclusions. Referral to an-
other 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 ev-
erything you should. As you go through the documents, develop a list of doc-
uments 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 docu-
ment has not been provided.
My own approach is as follows; feel free to use it if it suits your own pref-
erences. 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 el-
ement of which may be confirmed or disconfirmed by other material in the
database. Recall that a plaintiff can claim anything at first.
Second, I read the medical records and clinical material or the equiva-
lent; 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 re-
ported the facts under oath and explained their rationale) or other docu-
ments (such as witness reports to review what others observed). At this
point, you also may want to review relevant literature on the subject, includ-
ing your own.
I strongly recommend reading large chunks of material at a single sit-
ting, 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 contradic-
tions 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 ap-
proaches). Note for completeness that some experts like to start by exam-
ining 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 fo-
cus 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 prob-
ably 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 attor-
ney 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 lim-
itation, and be prepared to acknowledge this constraint as a limitation on the
data.
First Principles 35
If the witness lives locally, it might be effective and appropriate to exam-

ine 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 fac-
tored 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 ben-
efit 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 video-
taped. Jurisdictional rules may make one or all of these procedures manda-
tory, 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, exag-
gerating symptoms, focusing on making a recording, or consciously at-
tempting 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 opti-
mum compromise among choices. Experts whose handwriting is truly hi-
eroglyphic 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 record-
ing devices out of direct sight (although you should obtain on the tapes them-
selves verbal permission to record) and attempt to have the attorney or para-
legal 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 of-
fense 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 attor-
ney in Los Angeles was overheard telling his clients that he was not sug-
gesting 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 Mich-
igan Law School reports that some attorneys consider it part of attorney-
client 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 frame-
work 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 dif-
ferent 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?
First Principles 37
“Alibi” Issues or External Consistency

Is there material from somewhere else that challenges or refutes the claim?
Does the defendant claim to have been totally psychotic and out of control,
whereas the arresting officers and other disinterested witnesses describe a
calm and rational person just after the crime? Do other parts of the total data-
base 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 pa-
tient claimed to have been sexually molested during a particular time and
date in her psychiatrist’s office. She had apparently established these refer-
ents 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 incom-
ing 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 eval-
uations 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 dis-
ability due to an actual mental disorder or an avoidance of work for defensive
reasons? Is the examinee attempting some sort of retaliation against the de-
fendant 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 recommen-
dations to your examinee, even if asked to do so or tempted by medical ne-
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 da-
tabase. 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, un-
like 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 vis-
ible 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 enti-
tled 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 re-
semblance of the above paragraph to informed consent; compare the con-
sent form in Appendix 1.
As you are interviewing the examinee, you are attending to his or her de-
meanor and its relation to credibility. Is the patient convincing and plausi-
ble? 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 inter-
view 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
First Principles 39
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 ill-
ness 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 back-
ground. 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., partic-
ular 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 condi-
tion must be deducted from the damages, because the defendant is not caus-
ally 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 di-
minish) 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
were of a particular deviation, event, or incident; what the results were of

subsequent events; and what the exacerbations were of preexisting condi-
tions. 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 sex-
ually abused by a treater, and then has other symptoms or more of the same
symptoms. Or, consider a veteran of combat with posttraumatic stress dis-
order 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 ma-
terials.
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. Kirby v Ahmad, 63 Ohio Misc 2d 533 at 534, 1994
2. Gutheil TG, Simon RI: Mastering Forensic Psychiatric Practice: Ad-
vanced Strategies for the Expert Witness. Washington, DC, American
Psychiatric Publishing, 2002
3. Gutheil TG: Reflections on coaching by attorneys. J Am Acad Psychia-
try Law 31:6–9, 2003
First Principles 41
4. Lees-Haley PR: Attorneys influence expert evidence in forensic psycho-

logical and neuropsychological cases. Assessment 4:321–324, 1997
5. Pittman RK, Orr SO: Psychophysiologic testing for post-traumatic
stress disorder: forensic psychiatric application. Bull Am Acad Psychia-
try Law 21:37–52, 1993
6. Bursztajn HJ, Feinbloom RI, Hamm RM, et al: Medical Choices, Medi-
cal Chances: How Patients, Families and Physicians Can Cope With Un-
certainty. New York, Routledge, Chapman, & Hall, 1990
Suggested Readings
Borum R, Otto R, Golding S: Improving clinical judgment and decision-
making 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 Re-
port 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 Assess-
ment 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 foren-
sic 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
CHAPTER 4
Types of
Typical Cases
TO ILLUSTRATE SOME of the principles highlighted in pre-

ceding 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 caus-
ing 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. Gener-
ally, 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 ap-
pears as though it had been far more foreseeable, once you know it has al-
ready 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 fore-
43
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 oc-
cur. 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 re-
spect 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 unique-
ness 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 observa-
tions 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 infor-
mation than usually makes it onto the chart page: tone of voice, body lan-
guage, 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 afore-
mentioned subjective observations are practically unheard of.
Although there is some variation annually, the leading issues in mal-
practice 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 rec-
ords a careful mental status examination without reference to depression. Of
Types of Typical Cases 45
course, it is quite a different matter if the on-site treater’s conclusions are in-
ternally 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, nondocu-
mented 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 mal-
practice; 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 word-
ing 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) publica-
tions articulating diagnostic and treatment guidelines, how are these guide-
lines 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 cer-
tain recommendations, those are not the standards of care. Those rec-
ommendations 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-
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 profes-
sional 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 fac-
tor. 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 mal-
practice defense but also for rendering clinical care that the records are read-
able, 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 cri-
teria 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 por-
tions 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 diffi-
cult to determine after the fact, but looking for consistency among the parts
of the record is usually helpful to determine that factor. Timeliness is af-
fected 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 minimi-
zation of symptomatology may suggest some countertransference issues that
may cloud clinical judgment.
However, the forensic level of scrutiny requires deeper probing. For
example, is there symmetry between the clinician’s notes and his or her
orders, and the clinician’s notes and the nurses’ notes, the laboratory slips,
the 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 re-
actions, 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 pa-
per 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 every-
thing 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 writ-
ten 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 com-
prehensive family history than does the psychiatric history. It is useful to
compare the perceptions of the social worker (who often has worked exten-
sively 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 dis-
torts 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’ ques-
tions 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.
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 op-
posing attorney, litigant, or expert. All communications beyond the most
mechanistic (giving the opposing attorney’s secretary directions to your of-
fice 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 appro-
priate 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 men-
tal illness (and therefore a likely defense) versus a case with none of these
qualities, but for which application of the insanity defense represents a des-
perate 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 capac-
ity as an intermediate condition.
Out of the entire panoply of available material on a criminal responsi-
bility case, data gathered at the time of the alleged act, in my (and almost ev-
eryone’s) view, are the most significant. These would include witness and
victim reports, statements of the arresting officers, and records of any treat-
ing 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 pat-
terns of behavior or disorder. Is this defendant someone who seemed to show
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 ill-
ness with recurring hospitalizations and delusional symptoms that relate di-
rectly 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 re-
sult of the crime, an unrelated accompaniment to the crime, and so on.
Finally, although mandatory and irreplaceable, the interview in a crim-
inal 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 his-
tory 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 foren-
sic evaluations (6).
Because of the seriousness of criminal penalties, malingering is espe-
cially common and problematic in this assessment. The novice expert should
become familiar with useful publications on the subject (7,8). Courses on de-
tection 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 in-
terview 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 self-
serving 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 com-
partment 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
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 proble-
matic (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 ex-
ample, 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., pre-
existing 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 neces-
sary 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 com-
pany 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
knew this because, without warning, the heat abruptly went on with a loud
“WHOOOMPP!” making a considerable racket right next to our chairs. I my-
self jumped in my chair, but I couldn’t help noticing that my allegedly startle-
prone 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 infes-
tation. 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 pas-
senger from that plane came to me for an examination in relation to a law-
suit 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 in-
cident 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 in-
terview 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 ex-
tensively covered in the media before you have been retained; that is, the al-
leged 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 under-
stand. Initially, the plaintiff or prosecutor can say anything. As the “moving
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 obvi-
ous 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 what-
soever 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 sce-
nario they think they can prove. Ninety-nine percent of the time, however, the
defense attorneys cannot answer the media’s questions. The defense attor-
neys 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 per-
ception.
Even though you may try to tune out the media, you simply may be read-
ing 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 out-
lined 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 mat-
ter 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 mal-
practice cases, for example, the standard references the average reasonable
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 be-
gins with the phrase “Well, in the real world...” Many “good ideas” theoret-
ically 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 partic-
ular expert does is irrelevant to determining the standard of care of the av-
erage 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 precipi-
tously terminated treatment with a stalker (but made an appropriate referral
and transfer) to embark—despite the psychiatrist’s personal fears—on a se-
ries of termination meetings with the stalker. I personally have never heard
of or read that standard anywhere; the likely explanation is that the treater-
expert 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 incon-
clusive verbiage. The following is a real-life sample:
Examining attorney: Does the standard of care require restraint of this pa-
tient?
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 sit-
uation.
Examining attorney: But does the standard of care require that this pa-
tient 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 ma-
terial.
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 con-
sider 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 an-
swer 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, ac-
tually, of unpredictability; he gets frightened, he has taken in despair 10 lithi-
ums 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 opin-
ion from the thicket of prose.
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 ele-
ments 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 ex-

amples. I would prefer never to assume malice when incompetence would
serve as an alternative scenario. Conceivably, we may be dealing with an in-
competence issue, whereby the deponents simply do not know how to focus
on a forensic question and then articulate a coherent or comprehensible re-
sponse. Yet, for better or for worse, a trend of such waffling answers in dep-
osition 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. Gutheil TG, Bursztajn H, Brodsky A, et al: Decision-Making in Psychi-
atry and Law. Baltimore, MD, Williams & Wilkins, 1991
2. Fischhoff B: Hindsight, foresight: the effect of outcome knowledge on
judgment under uncertainty. J Exp Psychol 1:288–299, 1975
3. Tversky A, Kahneman D: The framing of decisions and the psychology
of choice. Science 211:453–458, 1981
4. Gutheil TG, Bursztajn H, Brodsky A: Subjective data and suicide assess-
ment in the light of recent legal developments, I: malpractice preven-
tion and the use of subjective data. Int J Law Psychiatry 6:317–329, 1983
5. Bursztajn H, Gutheil TG, Brodsky A: Subjective data and suicide assess-
ment 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
6. Gutheil TG: Assessment of mental state at the time of the criminal of-
fense: 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
7. Rogers R: Clinical Assessment of Malingering and Deception, 3rd Edi-
tion. New York, Guilford Press, 2008
8. Gothard S, Viglion DJ, Meloy JR, et al: Detection of malingering in com-

petency to stand trial evaluations. Law and Human Behavior 19:493–
505, 1995
9. Gutheil TG: Preventing “critogenic” harms: minimizing emotional in-
jury from civil litigation. J Psychiatry Law 28:5–18, 2000
10. Goldstein RL: Hiring the hired guns: lawyers and their psychiatric ex-
perts. Legal Studies Forum 9:41–53, 1987
11. Gutheil TG: The problem of evasive testimony: the expert “waffle.” J Am
Suggested Readings
Binder RL: Sexual harassment: issues for forensic psychiatrists. Bull Am
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 objectiv-
ity. J Am Acad Psychiatry Law 34:215–223, 2006
Simon RI: Post-Traumatic Stress Disorder in Litigation, 2nd Edition. Wash-
ington, 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 pe-
riod known as discovery. Attorneys probe and define the limits of their
cases, preparing for what to expect from the various witnesses and docu-
ments. Note that some jurisdictions practice “trial by ambush” without ex-
pert 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 wit-
nesses 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
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 for-
mality and to pay it little heed, reasoning that they can always modify their
opinions at trial when the right questions are asked. However, the interrog-
atory is sworn testimony, and an opposing attorney may make a major issue
out of any deviation between your trial testimony and what your interroga-
tory 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 infor-
mation or documents will be objected to or refused, based on his or her in-
terpretation 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 ob-
jectionable 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 ad-
vise 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 un-
ethical.
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 com-
bination of the three: getting your opinion, obtaining admissions, and paint-
ing you into a corner.
Discovery and Depositions 59
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 in-
stance, 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 supple-
mental 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 re-
sponse to questions does not obligate you, however, to empty your word-
hoard, 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 tes-
timony 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 tes-
timony 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
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 be-
tween 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, un-
der 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, Doc-
tor? 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 gen-
eralize 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 attempt-
ing 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. Ac-
curacy addresses the clarity of your vision in relation to the known facts in
the case.
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. Un-
fortunately, several factors urge clearing substantial blocks of time for dep-
osition. 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 es-
sentials 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 se-
rious weakness of the substantive aspects of their case, will spend hours
inching through the expert’s credentials, looking for dirt before even address-
ing 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 Agree-
ment”), however, requiring a 2-hour fee in advance may encourage some op-
posing 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 con-
test to try to beat down your opinion by having fatigue erode your concen-
tration. Prepare for this. Get enough sleep the night before the deposition,
try to eliminate distractions, and insist on your freedom to take breaks as fre-
quently 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.
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 com-
pound question, but it is quite risky and may compromise clarity. The fol-
lowing 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 consid-
ered by the Program in Psychiatry and the Law, which I codirect, to be
an appropriate way of determining competence in the clinical situa-
tion. 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-stopped-

beating-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 understand-
ing 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 under-
standing of [patient’s] propensity for violence [and therefore are neg-
ligent 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 unre-
solvable 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
neither be foreseen nor be prevented.” Note how the question is incorpo-

rated 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, testi-
fying 5 years after a suicide, reveals the hazards of too effusive, too discur-
sive, 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 un-
less 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 re-
members 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 col-
leagues. 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 in-
voluntary commitment. When seen, the patient manifested rapid press of
speech, vulgarity, social obnoxiousness in various ways, paranoia, and gran-
diosity; moreover, a psychiatrist friend of the patient reported to the physi-
cian that she had long tried to get the patient treated for bipolar disorder. The
deposing attorney inquired, “Does speaking fast mean you have bipolar dis-
order?” 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.
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 al-
lows 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 use-
ful 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 can-
not 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 re-
porter, who cannot take down two simultaneous conversations and pro-
duce a clear record. Attorneys may sometimes interrupt your answer,
usually accidentally, in the belief that your pause means you have fin-
ished, 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
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 paren-
thetical 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 retain-
ing attorney in the middle of a pending question because this raises the spec-
ter 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 consul-
tation. 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 begin-
ning expert makes in a deposition is the failure to concede an obvious and ir-
refutable 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-
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 ar-
got 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 at-
tempt 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 an-
swer 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 mis-
guided 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 retain-
ing attorney may also get into the act.
Curious Questions
The absence of a jury and of a judge to rule on the appropriateness of ques-
tions sometimes gives deposing attorneys the feeling of freedom to ask ques-
tions that might be disallowed by a judge or be seen as impertinent by a jury.
Questions of morality and values—areas that are outside of forensic psychi-

atric 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 psy-
chiatrist).
The only valid answer is that those questions are outside your area of ex-
pertise, 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 categoriza-

tion, 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 sen-
sitivity.
Note how the first question was a total loss and had to be rejected com-
pletely. 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 ex-
ample, “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.”
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 tech-
nical, 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 impor-
tant; this implies arranging coverage for your patients should a crisis occur.
Your attitude should convey, “I can continue until midnight, should that be-
come necessary.” This position of timeless patience puts the onus appropri-
ately on the attorney to move things along.
A situation that, fortunately, occurs rarely may throw the novice wit-
ness: 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 dem-
onstrate 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 facili-
tate 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 as-
sumption is dangerous because it suggests bias, no matter how generic or ba-
sic 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 negli-
gence in this case. The only assumption you should make is good faith, mean-
ing 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 addi-
tional assumption is that reasonable care was given (“innocent until proven
guilty,” as it were), after which the expert examines for evidence either way.
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 au-
thoritative 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; ines-
capably, then, these publications are not uniform in authoritativeness. How-
ever, you cannot take the position that no text is authoritative. Acknowledge
that the Comprehensive Textbook of Psychiatry (7) has many authoritative en-
tries, but ask to be shown to which one the attorney is referring. After read-
ing 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 anti-
manic anticonvulsants may not include information about that specific us-
age; this is a matter of risk management for the pharmaceutical companies.
Comparably, to make an informal clinical diagnosis, one may suspect a dis-
order 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 stan-
dard of care. Some experts respond that the DSMs are not authoritative,
merely official. Moreover, the disclaimer at the front disavows its applicabil-
ity 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 tes-
timony regarding the professional literature:
When quoting the literature, be balanced and accurate. Give both (or sev-
eral) points of view if they exist....A good rule to work by is that the state-
ments 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 infor-
mation. 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 accu-
racy 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 dis-
cussions 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 con-
sidered 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, sum-
maries, 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 deposi-
tion is the stenographer, whose transcript will endure and be used for any
impeachment possible. In contrast, in the video deposition, the camera is
the audience, representing the jury, who may see the video displayed in ad-
dition 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 def-
inite 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 per-
sonal bodily attentions. Despite the fact that there may be movement of var-
ious 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 dep-
osition 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 ex-
tremely good at their jobs, but errors can creep in. When you receive the dep-
osition transcript, read it very carefully, checking for errors and typos. Recall
that omission of a comma, of the word “not,” and rendering, say, “irrespon-
sible” 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 tes-
timony usually should not be changed without notification of your retaining
attorney) is customarily signed and notarized, but under some circum-
stances 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 dis-
tribution 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.
References
1. Gutheil TG, Simon RI, Simpson S: Attorneys’ requests for complete tax
records from opposing expert witnesses: some approaches to the prob-
lem. J Am Acad Psychiatry Law 34:18–22, 2006
2. Gutheil TG, Simon RI, Hilliard JT: The phantom expert: unconsented
use of the expert’s name/testimony as a legal strategy. J Am Acad Psy-
chiatry Law 29:313–318, 2001
3. Baker TO: Operator’s Manual for a Witness Chair. Milwaukee, WI, De-
fense Research Institute, 1983
4. 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
5. Gutheil TG, Dattilio FM: Practical Approaches to Forensic Mental
Health Testimony. Baltimore, MD, Lippincott, Williams & Wilkins,
2007
6. Gutheil TG: Reflections on coaching by attorneys. J Am Acad Psychia-
try Law 31:6–9, 2003
7. Kaplan HI, Sadock BJ (eds): Comprehensive Textbook of Psychiatry/VI,
6th Edition, Vols 1 and 2. Baltimore, MD, Willliams & Wilkins, 1995
8. Oates RK: Three do’s and three don’ts for expert witnesses (editorial).
Child Abuse Negl 17:571–572, 1993
9. Malone DM, Hoffman PT: The Effective Deposition: Techniques and
Strategies That Work. South Bend, IN, National Institute for Trial Ad-
vocacy, 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 Ex-
pert 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 of-
ten, 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 recom-
mended as an orientation. In this chapter, I review some of the basic court-
room 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 de-
vising means of locating key passages in the database quickly.
2. Planning. The importance of clearing your schedule and arranging cov-
erage and postponement of commitments cannot be overemphasized.
73
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 possibil-
ity 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.
3. 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 ar-
rangements, 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.
4. Practice. You should rehearse ways of expressing information to the jury,
practice sketching any visual aids you will need for the courtroom black-
board, 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.
5. 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 con-
ferences as an essential part of preparing for your witness function.
6. Pitfalls. Review the weaknesses in your opinion, the contradictory evi-
dence, 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.
7. Presentation. Think about how to express your opinion and how to ex-
plain and buttress your reasoning with facts from the case. Choose some
likely analogies or metaphors (discussed later in this chapter) to illustrate
your points.
The Expert in Trial 75
The Daubert Challenge

In an effort to ensure the validity of expert testimony and its underlying
methodology and to prevent “junk science” (unsupported or idiosyncratic
theory) from entering into the court’s deliberations, 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 tes-
timony (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 screen-
ing 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 ap-
proaches 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 infor-
mation 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 tele-
phones, which are sometimes in obscure locations in older courthouses.
Once in the courtroom, rise for the judge’s entrance. It is a mark of re-
spect 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 cheer-
fully 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
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 docu-
ments 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 tes-
timony. 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 opin-
ion is being given from memory, as are all the substantiating data. The down-
side 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 re-
calling 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, al-
lows you to read the full context from which the cross-examiner may have
extracted a misleading snippet, and ensures the accuracy of your recollec-
tion 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 prac-
ticing 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 under-
mined 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 suit-
able. 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 orig-
inal complaint on the stand; if needed, the attorneys will have it). Key docu-
ments might include my report and interview notes, essential medical records
(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 depo-
sitions 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 di-
rect 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, eccen-
tricity, 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 in-
trusive 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 in-
trude 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
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 consis-
tent 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 un-
predictability flows from the fact that you are not sure of an emotional alli-
ance with the jury at all points along the way. Without such alliance, humor
may seem disrespectful, flip, obnoxiously facetious, or obtuse to the serious-
ness 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 discre-
tion, 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 low-
est 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 at-
tacks 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 in-
volved and therefore possibly biased, not credible. A witness with an appar-
ent chip on his or her shoulder (and in court, all such chips are apparent) is
particularly unconvincing.
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 usu-
ally 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 in-
structive, blunts your argument and weakens your credibility; concede a re-
mote 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, under-
standable 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.
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 blas-
phemy, 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 wit-
ness who faces the blackboard and mumbles the sound-track accompani-
ment to his micrographia is not only ineffective but also actively alienating,
possibly even insulting, the jury. The companion volume makes the follow-
ing 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
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 ques-
tion.
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 an-
ticipate, and seems unprepared for, an obvious line of questioning. For ex-
ample, 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 under-
standing the forensic issues involved.
The same judge cautioned against too facile a psychiatric or psycholog-
ical explanation of human behavior. The posture that everything can be ex-
plained (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 im-
pressed and perhaps even swayed by the fact that the only witnesses who
used the word ethical were I and the physician-defendant.
An especially sticky and dismaying problem, fortunately not that com-

mon, is the situation wherein the attorney has misunderstood some funda-
mental 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 examina-
tion, 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 mispercep-
tion 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, pa-
tients 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 al-
ways 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 mecha-
nism 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 chemi-
cals 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 elec-
trical 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
(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 chem-
icals 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—inci-
dent 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 man-
ner. What will cross-examination be like? What is the jury to make of this ap-
parent hesitancy and doubt?
Remember also that—as is clearly seen in that excerpt—the court re-
porter is entitled to, and slavishly but perfectly appropriately, may record ev-
ery 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 contemp-
tuous 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.
Most often, however, attorneys do not perform this simple but effective
maneuver. Attorneys will not avoid cross-examining the expert for several rea-
sons: the attorney’s narcissism (“I can handle this expert on cross-examina-
tion, 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 op-
posing attorney or firm; and even the attorney’s competitive feelings di-
rected toward the expert.
Even those attorneys who opt to engage in cross-examination are usu-
ally (but, surprisingly, not always) aware of two fundamental principles that
should guide this activity. First, never ask a question to which you do not al-
ready 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 ob-
vious 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 at-
torney 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-examin-
ing 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.”
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 an-
swer 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 re-
sponse 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 an-
swer 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 rec-
ommend 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 min-
utes.” The break gives you ample time to think.
Breaks
During breaks that occur in the middle of cross-examination, some attor-
neys 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-
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 postpran-
dial 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 in-
form 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 com-
plete 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 un-
der 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.
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 cross-
examination 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, mea-
sured 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-exami-
nation have worn the two attorneys into a torpor, and both grudgingly ac-
knowledge 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 (be-
ing careful not to include and therefore abscond with any official case ex-
hibits), 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 ges-
tures; 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 de-
brief 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 parti-
sanship, 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
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 at-
torney 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 ac-
knowledging 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 demo-
graphics of juror selection, “juror countertransference” toward the attor-
neys, 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 cross-
examination? 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
2. Gutheil TG, Bursztajn HJ: Attorney abuses of Daubert hearings: junk

science, junk law, or just plain obstruction? J Am Acad Psychiatry Law
33:150–152, 2005
3. Gutheil TG: The Psychiatrist in Court: A Survival Guide. Washington,
4. Gutheil TG: Borderline personality disorder, boundary violations and
patient-therapist sex: medicolegal pitfalls. Am J Psychiatry 146:597–
602, 1989
5. 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 Com-
munity Psychiatry 45:9–10, 1994
Babitsky S, Mangraviti JJ: How to Excel During Cross-Examination: Tech-
niques 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 Wit-
ness. Washington, DC, American Psychological Association, 1991
Brodsky SL: The Expert Expert Witness: More Maxims and Guidelines for
Testifying in Court. Washington, DC, American Psychological Associ-
ation, 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 Psychia-
try Law 27:289–312, 1999
Gutheil TG, Hauser MJ, White MS, et al: The “whole truth” vs. “the admis-
sible truth”: an ethics dilemma for expert witnesses. J Am Acad Psychi-
atry Law 31:422–427, 2003
Gutheil TG, Bursztajn H, Hilliard JT, et al: “Just say no”: experts’ late with-
drawal from cases to preserve independence and objectivity. J Am Acad
Psychiatry Law 32:390–394, 2004
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 Prac-
tical 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; oth-
ers flow empirically from experience. The aim is to help you meet the chal-
lenges 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 try-
ing to fit your other forensic activities (review, depositions, trial) into the in-
terstices 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
for months without any forensic activity whatsoever, but during the very
week that you have scheduled four weddings and a funeral, two trials in dif-
ferent 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 diplo-
macy, 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 prep-
aration 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 in-
terest 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 sched-
uled 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 inter-
view, 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: “Doc-
tor, 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-
Some Pointers on Expert Witness Practice 93
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. Gutheil TG: “Paraforensic” aspects of expert witness practice. J Am
2. 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 Psychi-
atric Publishing, 2002
Reid WH: Forensic practice: a day in the life. J Psychiatr Pract 12:50–54,
2006
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 quasi-
legal 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 per-
son’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 eval-
uation of a person’s competence to stand trial, a defendant’s criminal re-
sponsibility, 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 care-
ful legal analysis and reflection on whether you will be helpful on the case.
95
Alternatively, your report may open up entirely novel approaches to litigat-

ing 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 con-
vincing the other side of the case to settle or drop the matter. These are all
powerful arguments for careful thought, painstaking preparation, and me-
ticulous proofing and review of any report you produce.
Despite these useful functions, the report may present materials or ap-
proaches that the attorney does not wish to share with the other side. Con-
sequently, the attorney may ask that you not furnish a report, which in that
jurisdiction is discoverable by the other side. For similar reasons, the attor-
ney 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 attor-
ney’s benefit; 2) a summary report, which presents your database and con-
clusions only; and 3) the full, detailed report, which states all of your conclu-
sions 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 sec-
ond is an extract of the third.
Phillip J. Resnick, M.D., a leading forensic scholar who lectures on fo-
rensic report writing at the annual forensic review course of the American
Academy of Psychiatry and the Law and elsewhere, has generously and gra-
ciously 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 explic-
itly in the text).
General Remarks
The report as a whole should meet certain criteria. It should contain every-
thing 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.
Writing to and for the Legal System 97
The Heading
The first report should be titled “Preliminary Report,” and subsequent con-
tributions, additions, or emendations should be titled “Supplementary Re-
port.” 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 com-
petence 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-
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 dep-
ositions).
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 su-
periority 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 al-
lows 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 pro-
viding the steps and stages of reasoning that point to the outcome.
It is important to couch your conclusion in the explicit jurisdiction-
specific 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 med-
ical certainty (or its local variant) to render your report material and admis-
sible. 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 train-
ing and experience, it is my professional opinion, held to a reasonable de-
gree of medical certainty, that, in the treatment of (plaintiff ), (defendant)
failed to practice at the standard of care of the average reasonable prac-
titioner 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 data-
base (all the material reviewed in the case, including interview data) and
your total clinical background of training (what you were taught) and expe-
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 defi-
nition of malpractice used in that locality. Finally, you do not say “the defen-
dant 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 support-
ing 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 dep-
osition). 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 infer-
ences to understand the point.”
Multiple Realities
In civil cases, it is predictable that plaintiff and defendant tell different sto-
ries, 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
the following form: “If the allegations are true, then ...” Flat contradictions
may require bifurcated testimony: “If plaintiff ’s version is true, then ...if de-
fendant’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 inadmis-
sible 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 weak-
nesses of the report; on the contrary, it would be a weakness not to acknowl-
edge 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 credi-
bility and suggests greater objectivity, which make for a stronger report.
Other attorneys feel this is unnecessary or detrimental and assert that cross-
examination should be left to the cross-examiner. Whichever approach you
actually take in your written report, it is essential that you identify and re-
main 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 every-
thing 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 abso-
lute guideline for this procedure, but generally there is no inherent problem
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 inju-
ries—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 feed-
back from your retaining attorney and peers in the field. I strongly recommend
having an experienced colleague review your early reports and offer cri-
tiques and feedback. You also may ask to see a senior colleague’s report un-
der an agreement of confidentiality.
The Criminal Report: An Example

The following is Dr. Resnick’s outline for a typical criminal report.1
1. Identifying information:
2. Source of referral:
3. Referral issue:
4. Sources of information:
5. Qualifications of the examiner:
6. Statement of nonconfidentiality:
7. Past personal history:
8. Family history:
9. Sexual and marital history:
10. Educational history:
11. Employment history:
12. Military history:
13. Relevant medical history:
14. Drug and alcohol history:
15. Legal history:
16. Psychiatric history:
17. Prior relationship of the defendant to the victim:
1Used
with permission.
18. Defendant’s account of the crime:

19. Witness and/or victim accounts of the crime:
20. Mental status examination:
21. Physical examination and laboratory tests:
22. Summary of psychological testing:
23. Competency assessment:
24. Psychiatric diagnosis:
25. 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 per-
sonal 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 effec-
tively 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 prac-
tice 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 at-
torney 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 an-
nouncement 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
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 an-
nouncement 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 be-
tween honest and reasonable efforts to offer services to potential clients and
sleazy, opportunistic, commercialized hustling for business—or the appear-
ance thereof. The balance must be struck between dualities such as generat-
ing word of mouth versus hucksterism, sharing useful information versus
being pushy, and pride and confidence in your work versus hired gun cer-
tainty 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 di-
rectory 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 de-
velop and market your forensic practice: announce, inform, list, speak, write,
and unspecialize.
Developing and Marketing a Forensic Practice 105
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 ser-
vices. 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 ini-
tial communication.
Inform
The information about your availability may be directed to four possible au-
diences: 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 Associ-
ation [APA] and American Academy of Psychiatry and the Law [AAPL]) and
local chapters of other organizations offer additional opportunities for in-
forming 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. Op-
posing 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 chal-
lenged to see if there is a likelihood of a valid concern, then reporting to the
court.
List
Listings can be effective as well. Consider listing yourself in your APA dis-
trict 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 ad-
vertising; however, these publications may be explored. In my opinion, the
American Board of Forensic Examiners has not yet achieved sufficient cred-
ibility 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 per-
formance 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 pro-
cesses. 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 sto-
ries 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’ com-
puter searches. Although it is useful exposure and a valuable resource to
write an analysis, review, or commentary and have it published, good visibil-
ity 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.
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. Be-
gin 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 perfor-
mance at the deposition.
From the absolute onset of your career, integrity must be your watch-
word, 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 qualifi-
cation 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 fol-
lowing:
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 aggrandiz-
ing statements that are, by definition, extremely public.
3. Be extremely careful about posting your qualifications. Conservatively
stating your incontrovertible credentials (actual appointments, certifica-
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 re-
sponses 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. Con-
sider 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 confi-
dent 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 de-
manding 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. Dattilio FM, Sadoff RL, Gutheil TG: Board certification in forensic psy-
chiatry and psychology: separating the chaff from the wheat. J Psychia-
try Law 31:5–19, 2003
2. Fulton S, Guyant A: Beat the Press. Salt Lake City, UT, American Book
Business Press, 2002
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 mar-
keting. I disclose that I have lectured for SEAK numerous times over the
years.
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, mock-
ery, 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 neighbor-

hood (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 ex-
pert 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.
111
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 over-
night 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 ob-
tained from books, travel agents, the Internet, and your colleagues. I recom-
mend 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 toll-
free 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 out-
fit 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
The Expert on the Road: Some Travel Tips for Testifying Away 113
your connecting flight if you are late. If the trial runs longer than a day or so,
you may have to use the hotel’s laundry and dry-cleaning facilities or buy ad-
ditional 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 re-
taining 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 ap-
parently 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 re-
view the case, do not bill separately for that work because you are already be-
ing 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 suit-
case. 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
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 ex-
periment 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 econ-
omize 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 cosmet-
ics 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 prin-
ciple 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 shoe-
laces; 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 rou-
tine. 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 un-
der beds for lost items; extra eyeglasses or contacts if you wear them; eye-
glass screwdrivers and replacement screws; and extra combs.
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 sys-
tem 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 materi-
als 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 hav-
ing lunch or dinner until they reach their destination. If you have a disability,
call the airline early to check on facilities, procedures, and special arrange-
ments.
Secrets of Staying
If you are unfamiliar with the expert art of “fly in, testify, fly out,” this discus-
sion will be helpful; experienced travelers can skip this discussion.
The traveling expert is sometimes torn between staying at a cold, insti-
tutional hotel or motel and cadging free lodging with friends or relatives in
the area. The latter appears at first glance both socially desirable and eco-
nomical, because someone else is paying your way to the location.
I recommend the hotel or motel for several reasons. First, you are un-
distracted by social obligations and family strife or background noise. Sec-
ond, it is more professional to meet with your attorney the night before the
trial in a hotel room or conference room; this is, after all, a business trip. Af-
ter the trial, of course, you are free to visit friends and family at your own dis-
cretion.
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, ren-
dering 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 in-
coming 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 avail-
able 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 last-
minute 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 fa-
miliar to you. Experimenting with culinary exotica is asking for a case of tur-
ista 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 de-
sired, have your martini on the airplane home after it is all over.
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 al-
cohol 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 sun-
light 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 de-
livery 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 accompa-
nies 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
removal, or refreshment; cough drops, mints, or throat lozenges; and a head-

ache 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 obvi-
ous, I hope that these tips make your travel easier and less surprising. I wel-
come your suggestions and favorite travel tips.
References
1. 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.)
2. 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.)
3. 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
4. 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
5. 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 at-
tention to women’s packing challenges than most of these other refer-
ences.)
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 per-
forming your task successfully but also in helping you avoid some of the pit-
falls of beginning a new career sideline.
Although some forces in society, including our medical colleagues, de-
cry 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, effec-
tive, 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 por-
tion 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 re-
viewing 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 cor-
rect, expand, or render this text more useful.
119
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 consider-
ation. The main points about the form are the use of basic language; clarifi-
cation 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.
121
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 con-
nection with my legal case. The examination will be one or more personal in-
terviews. 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 num-
ber 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 ques-
tions, 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 un-
derstand and agree that Dr. Gutheil may talk or write about what we dis-
cuss 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 attor-
neys 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 un-
derstand that no one can know which one it will be in advance. I under-
stand 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” in-
terviews 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.
Appendix 1: Consent Form for Forensic Examination 123
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 assess-
ment, he/she appears competent to understand it. I certify that I have an-
swered any questions my client asked about the procedure.
Signed,
Attorney for examinee
Print name Date

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 ad-
dition, 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 ad-
vance; 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)
125
2. For out-of-state travel, the rate of payment shall be $ per day

and $ per half-day (4 hours or fraction thereof ) plus all ex-
penses, including travel by first-class conveyance and appropriate lodg-
ing if needed. Before such travel is undertaken, and as a condition for its
being undertaken, a retainer of $ specific to this travel is ex-
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 ac-
crue interest at 6% per annum, prorated (k). Failure to comply may void
this agreement except for duties of confidentiality (l), leaving the retain-
ing 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 obli-
gations 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 under-
stands that my forensic work is not the practice of medicine. (q)
6. Signature below indicates agreement with all (r) these terms; please re-
turn one copy to Dr. Gutheil.
Signed,
Attorney or firm representative as individual Date

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)

Appendix 2: Standard Fee Agreement 127
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 accept-
ing 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, “por-
tal-to-portal.”
d. Some experts charge differing rates, others the same, for review, deposi-
tion, 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 con-
tinuance or rescheduling, take a videotaped deposition, or even retain
another expert.
g. You have the right to request timely payment to prevent excessive back-
balance 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 cli-
ent, 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.
o. On rare occasions, attorneys may attempt to tie up (legally bind) an ex-

pert 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 re-
tainer (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. More-
over, 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, iden-
tifies 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 consult-
ing 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 ren-
dered, 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 re-
sponsibility 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 in-
terview 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
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 appoint-
ments 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 out-
of-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 compen-
sated 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 compen-
sated 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 ad-
equate preparation. There shall be on deposit with me a retainer in the amount
of $ 5 working days prior to commencement of testimony. If no-
tification of cancellation is made less than 2 working days before the sched-
uled 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 re-
lieve 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 ser-
vices 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 pro-
vided 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: Tech-

niques 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 Wit-
nesses. 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
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 (Focus-
es 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 Psychi-
atric 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 recommen-
dations for expert witness testimony, in Learning Forensic Assessment. Ed-
ited 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 Edi-
tion. 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 133
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,
Tsushima WT, Anderson RM: Mastering Expert Testimony. Mahwah, NJ,
Erlbaum, 1996
Veitch TH: The Consultant’s Guide to Litigation Services: How to Be an Ex-
pert 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 Witness-
es. New York, WW Norton, 1993
Other Media
http://www.aapl.org: The main Web site for the American Academy of Psy-
chiatry 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 compen-
dium 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, discus-
sions, and links.
http://tncrimlaw.com/forensic/f_psych.html: Another multiple resource site.
Gutheil TG, Kochansky J: The Complete Psychiatric Examination (video-
tape). Falmouth, MA, SEAK, 2001
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 vali-
date 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. Compe-

tence is decision-specific and usually based on criteria; there is no generic
“competence,” it is always “competence for what?” The criteria for the differ-
ent 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, in-
terview data, lab results, legal documents such as depositions and interrog-
atories, 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 un-
der 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
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 ac-
complish some of this phase; less ordinary procedures might include co-
vert 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 estab-
lished term.
Finding See “Opinion.”
Guardian ad litem (GAL) The lit in litem is the same as the one in litiga-
tion. 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 at-
torney, 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 dis-

covery 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 attor-
neys; if so, this limitation constrains the data gathering and the conclusions
that may be drawn from the database.
Glossary 137
Insanity The legal concept whereby a person who did an otherwise crim-
inal 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 re-

taining (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 ex-
pert offers an opinion derived from the database and training and experi-
ence; 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 intimi-
date or persuade the other side to drop or settle the case, but without actually
retaining, sometimes without even informing, the expert. There are several
variations on this ploy. See Gutheil et al. 2001: “The Phantom Expert,” in sug-
gested readings, Appendix 4.
Privilege A legal concept that holds that the patient (or examinee) has cer-
tain rights to bar statements or testimony from appearing in legal or quasi-
legal 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 usu-
ally 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 psy-
chological 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 testi-
mony, on the theory that this might inappropriately influence or contami-
nate the witness’s future testimony.
Standard of care The benchmark or yardstick by which professional per-

formance 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 fa-
miliar 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.
Glossary 139
Stipulate To concede or agree to a challenged issue, such as whether a wit-

ness 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 (usu-
ally 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 pa-
tient, 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 mer-
itorious 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 stan-
dards 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 testi-
mony. (See also “Opinion.”)
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 at-
torney’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
Accessibility Attire at trial. See Clothing; Dress and

airplanes, 115 appearance
courtroom, 74 Attorneys
Accuracy, 60 communication with opposing
Addressing judge at end of testimony, attorneys, 47–48
87–88 depositions, consulting with
Admissions, 59–60 retaining attorney during, 65
Advances fighting at depositions, 68
minimum fee, 61 honesty of. See Ethics
retainers, 14 informing of availability as forensic
Adversarial context, 3–4 expert, 105–106
Advertising, 7, 52, 104 loyalty to retaining attorney, 16
Advocate for truth, ethical model, 15 meeting with before deposition, 70
Agency relationship, 4–5, 23–24 merit of retaining attorney, 30–32
Air travel, 115 misunderstanding of clinical issues,
airline guides, 112 82
first class, 115 negotiations with retaining
meals, 115 attorney, 24–29
Alarm clocks, 116 social relationships with, 16
Alcoholic beverages, 117 work product privilege, 4–5, 70
“Alibi” issues, 37 “Attorneys’ Guide to Experts,” 106
Alterations Audiotaped interviews, 35
ethical, 100
of expert opinion, 32, 82 Background of expert, 25
of reports, 100–101 Beat the Press (Fulton and Guyant),
Alternative scenarios, 37–38 106
Ambivalence, 4, 121 Beepers at trial, 77
American Academy of Psychiatry and Bias, xiii, 4, 16–18, 52, 19
the Law (AAPL), 8, 49, 105–106 hindsight bias, 44, 62
American Board of Forensic needed for forensic functioning, 9
Examiners, 106 nonsexual seduction, 17
American Psychiatric Association problems of loyalty and
(APA), 45, 49, 105–106 identification, 16
Analogies and metaphors, use of, 74, treater bias, 18
82–83 Billable time, 26–28, 113
Announcement of forensic practice, Bipolar disorder, apparent, 63
105 Blackboard illustrations at trial, 80
Assumptions, 68–69 Body language, 78. See also Demeanor
141
Borderline personality disorder (BPD), Complaint, 34

82 Compound questions at depositions,
Breaks and recesses 62–63
depositions, 61 Comprehensive Textbook of Psychiatry
trial, 85–86 (Kaplan and Sadock), 69
Brokerage organizations for expert Concentration at depositions, 61, 66
witnesses, 7–8, 107 Concessions at depositions, 59–60,
Brokering a case when unable to 65–66
handle it personally, 108 Confidentiality
Browbeating by retaining attorneys, 32 breaches as basis for suit, 44
Building a practice, 103–108 nonconfidentiality warnings, 5,
13–14, 38
Camera, 70–71. See also Video Conflict of interest, 4, 25
depositions Conflicting stories from parties in case,
gazing into the lens, 71 how to handle in written reports,
Candor, 19 99–100
Capital criminal cases, 14 Consent Form for Forensic
Carry-on luggage, 113–114 Examination, xiii, 24, 121–123
Case name or citation in written Constraints on time, money, or data,
report, 97 100
Case review, 29–40 Consultation services, legal, 28–29
documents, review of, 33–34 Contingent fees, 28
merit of attorney, 30–32 Correction of answers at depositions,
“nothing to go on” problem, 33 64–65
scheduling, 33–34 Cough drops or throat lozenges at trial,
threshold question, 30 77, 118
validity of case, 30 Counsel. See Attorneys
Causation, 39–40 Countertransference, 16, 33
Cellular telephones, 77 The court, letters to, 95
Change of opinion, 32, 82 Court reporters, 83
Child abuse issues, 17, 40 Courtrooms, 73–79, 116–117
Child custody cases, 4 metal detectors at, 118
Class action cases, 23 Criminal cases
Clinical material, 34 capital cases, 14
misunderstood by attorney, 82 criminal responsibility cases, 48–49
Clothing involving the insanity defense,
packing for travel, 113–115 48–49, 99, 137
trial appearance, 77 report, example of outline, 101–102
unpacking at hotel, 116 Crises while testifying at trial, 86–87
Coaching, questions about, 65, 74 Cross-examination, 18–19, 58–59
Code language between attorney and avoidance by attorney, 83
expert, 81 breaks and recesses during, 85–86
Communication with opposing attor- code language between attorney
neys, litigants, or experts, 47–48 and expert, 81
Competence issues, 62, 135 delaying tactics, 86
Index 143
demeanor during, 80–82 interruptions, 64

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

Emotional injury cases, 49–51 Feedback, always soliciting, 88
examples, 50–51 Fees, 26–28
interviews, 49–50 detailed fee agreement, sample, 28,
Employment relationship, 24 129–130
Entrance of judge, 75 standard fee agreement, sample, 28,
Ethics, 13–21. See also Conflict of 61, 125–128
interest travel costs, 113
advocate for truth model, 15 Fitness as expert, 25
altering reports, 100–101 Flashlight, 115
billing, 113 Flip charts at trial, 80
contact with opposing attorneys, Flying. See Air travel
litigants, or experts, 47–48 Food. See Meals
cross-examination, 18–19 Forensic countertransference. See
honest advocate model, 15 Countertransference
loyalty to retaining attorney, 16 Forensic practice, xiii–xiv
marketing a forensic practice, evidence in, 67
importance, 107 marketing, 103–108
new facts at trial, 82 Forensic reports, 95–96. See also
nonconfidentiality warnings, 5, Written documentation
13–14, 38 Forensics, scholars in, 2
“nothing to go on” problem, 33 Forms
oaths, deposition and trial, 15 detailed fee agreement, sample, 28,
social relationships with attorneys, 16 129–130
turndown rates, 14–15 standard fee agreement, sample, 28,
Etiquette at trial, 75–79, 87–88 61, 125–128
Evidence, 67
Expenses. See Fees; Reimbursement for Gestures at trial, 78
travel Global requests, issuing, 32
Expert witnesses. See also Hired guns Good writing, principles of, 96
definition, 1
functions, 1–3 Harm, doing none, 8
Experts Hearsay, 6
honesty of, 15 High-profile cases, 51–52
remaining neutral, 17 Hindsight bias, 44, 62
special expertise of, 25 Hired guns, 7–8, 136
External consistency of story, 37 spotting the other side’s, 52–55
Eye contact at trial, 80 History of expert, 25
Honest advocate, ethical model, 15
Fabrics, for travel, 112 Honesty. See also Ethics
Failure of retaining attorney to pay fee, 28 of attorneys, 30–32
Fairness, principles of, 6, 38, 60 of experts, 82
False allegations, of sexual misconduct, Hotels, 112–113, 115–116
36 Humility factor, 9
“False memory” cases, 44 Humor, 78
Index 145
Identification with retaining attorney, 16 Laptops, 115

Insanity defense in criminal cases, Lawyers. See Attorneys
48–49, 99, 137 Leading questions on cross-
Insurance challenges, 18 examination, 84
Integrity, 18–19, 107 Leaving courtroom, 87–88
Interference of attorneys during Lecturing as marketing tool, 106
interviews, 36 Letters
Internal consistency of story, 36 to attorneys, 97
Interrogatories, 57–58, 137 to the court, 95
Intervening causes, 39 Likelihood principle, 7
Interviews, 34–38 Listings as a marketing tool, 106
“alibi” issues, 37 Locality rules for standard of care,
alternative scenario, 37–38 45
criminal responsibility cases, 49 Lodgings. See Hotels
demeanor of examinee, 38 Loyalty to retaining attorney, 16, 86
emotional injury cases, 49–50
external consistency of story, 37 Malingering, 6–7, 37, 49, 52
interference, 36 Malpractice suits, 43–48
internal consistency of story, 36 creating timelines for, 34
nonconfidentiality warnings, 38 depositions, review of, 47
note taking, 35 elements of malpractice, 45
order of, 34–35 locality rules, 45
plaintiff, 34–35 records, level of scrutiny, 46–48
plausibility of case, 36 social service history, 47
presence of attorney, 35 standard of care, 45–46, 53,
priority, 91–92 138
recording, pros and cons, 35 Marketing a forensic practice,
retention of records, 40 103–108
videotaping or recording, 35 announcement of practice, 105
Involuntary gestures at trial, 78 ethics, importance of, 107
lecturing, 106
Jargon, 79, 82 listings, 106
Jet Smart (Fairchild), 112 publishing/writing, 106
Judges specialization, 107
addressing, 87–88 strategies, 104–107
dismissal by, 6 Mastering Forensic Psychiatric
entrance of, 75 Practice: Advanced Strategies
informing of availability as forensic for the Expert Witness
expert, 105 (Gutheil and Simon), 119
Judgment, suspending, 45 Materials, for travel, 112
Juries, 2 Meals
entrance, 75 airplane food, 115
respect for, 83 during trial, 86, 116–117
testimony before, 79–80 Media coverage and cases, 51–52
Jurisdiction-specific language, 98 Medical records, 34
Medication issues as basis for suit, Online. See also Web sites
44 storage of past depositions, 26
Melatonin, 117 Opposing attorney, goals of, 58–60
Metal detectors at courthouses, 118 Opposing expert witnesses, 52–55
Metaphors and analogies, use of, 74, contact with, 47–48
82–83 Outcome of case, 88
Microphone use at trial, 80
Misunderstanding of clinical issues by The Packing Book (Gilford), 112
attorney, 82 Packing for travel, 113–115
Mitigation of damages, 49–51 Parties in case
Morality, questions of, 67 case name or citation in written
report, 97
National Forensic Center, 106 communication with opposing
Negligence, 45, 54, 66, 137 party, 47–48
Negotiations with retaining attorney, plaintiff interviews, 34–35
24–29 Patience, 68
background of expert, 25 Pauses before answering
bias, 14, 16–18 cross-examination, 85
clinical and forensic issues, 24 depositions, 64
decision to take case, 29 Peer review for testimony, 8
fees, 26–28 Pens and pencils at trial, 77
fitness as expert, 25 Personal injury cases. See Emotional
initial contact, 24 injury cases
request of retaining attorney, 24–25 Physicians’ Desk Reference (PDR), 69
timing and scheduling, 26–28 Plaintiff. See Parties in case
Networking, 104. See also Marketing a Plausibility of case, 36
forensic practice Politeness, unfailing, 81
New facts at trial, effect of, 82, 86 Postreport negotiations, 100–101
Nonconfidentiality warnings, 5, 13–14, Posttraumatic stress disorder, 49–51
38 Practice pointers, 91–93
Nonsexual seduction, 17–18, 137 Precautions, while traveling, 115
Note taking Preexisting illnesses or conditions, 39
importance of, 47 vulnerability of plaintiff (“thin
during interviews, 35, 77 skull”), 50
keeping notes, 40, 71 Preliminary reports, 97
Preparation for trial. See Trial
Oaths, 137 preparation
depositions, 15, 65, 82 Prescription medications, 114, 117
interrogatories, 57–58 Pretrial conferences, 74
trial, 15 Prior testimony by expert, 25–26
Objections Priorities, 91–92
depositions, 64 Privilege, 138. See also Confidentiality
interrogatories, 57–58 deposition, consulting with
Objectivity, not compromising, 16, 30 retaining attorney at, 65
Occasions, writing for, 97 work product privilege, 4–5, 70
Index 147
Pro bono work, xiv, 107, 138 Retaining attorney, negotiations with.
Professional meetings, 106 See Negotiations with retaining
Psychiatric malpractice suits. See attorney
Malpractice suits Retention of records, 40
The Psychiatrist in Court: A Survival Returning calls, importance of, 108
Guide (Gutheil), 24 Roles of expert, 28–29
Publications by expert, 25–26 Running shoes, traveling with,
as marketing tool, 106 112–113
Publicity and cases, 51–52
Santayana, George, 6
Quoted passages, review of, 85 Scheduling issues, 26–28, 73–74,
91–93
Readings, suggested, 131–133 personal conflicts, 93
travel books, 112 Seating at trial, 75–76
Reality-testing, 25 Seduction, nonsexual, 17–18
Reasonable medical certainty, 7, 79, Self-serving behavior, 6–7, 49
138 Sequestration, 138
Rebuttals, 100 of witnesses, 75
Recesses. See Breaks and recesses Sexual misconduct cases, 36, 38–39,
Recorded interviews, 35 44, 82
Records, 40 Silent treatment, 66
case review, 33–34 Simon, Robert I., 9, 119
CATO model for, 46 Site visits, 70
criminal responsibility cases, 49 Skepticism, maintaining appropriate, 6,
database of, 5–6, 34 9, 48
malpractice cases, level of scrutiny, Sleeping, 117
46–48 Social relationships with attorneys, 16
medical records, review of, 34 Social service history, 47
retention of, 40 Socratic method, 6
social service histories, 47 Specialization, 107
Referrals, 15, 33, 104–106, 108 Standard of care, 45–46, 53, 138
written documentation, 97 Standard of proof, reasonable medical
Rehearsing testimony, 74 certainty, 7, 79
Reimbursement for travel, 113 Stenographers. See also Court reporters
Relatives, staying with, 115 in depositions, 64, 68
Rental cars, 112 Storytelling, power of, 3
Reports, 31–32, 92, 95–102. See also Suicide malpractice cases, 3, 18, 43–45,
Written documentation 54, 82. See also Malpractice suits
Reputation of expert, 25 Suitcases, 113–114. See also Packing
Required action, 54 for travel
Resources for suggested readings, Supplementary reports, 97–98
131–133 Supporting data for written reports,
travel books, 112 99
Respect, showing toward juries, 83 Surprised expert, response to, 81
Retainer, obtaining in advance, 14 Sworn statements. See Oaths
Tarasoff-type cases, 44, 55, 139 cough drops or throat lozenges, 77,
Taxicabs, 74 118
Teaching role, 78–80 crises while testifying, 86–87
Telephones cross-examination. See Cross-
calls during trial breaks, 86 examination
cellular telephones, 77 demeanor at, 77–79
courtroom, bringing into, 77 departure from courtroom, 87–88
returning calls, importance of, 108 dress and appearance, 77
wake-up calls, 116 etiquette at, 75–79, 87–88
Testimony at trial, 79–80. See also eye contact, 80
Cross-examination humor, 78
prior testimony by expert, 25–26 illustrations, blackboard, marker
roles of expert, 28–29 board, or flip chart, 80
Third-party cases, 44 language/word choice, 82–83
Throat lozenges or cough drops at trial, lunch during, 86, 116–117
77, 118 microphone use, 80
Time new facts coming to light, effect of,
creating timelines, 34 82, 86
for depositions, 61, 64 pens and pencils, 77
for interviews, 35 pointers, 81–82
keeping track of, 26–28 priority, 91–92
travel time, 112 seating at, 75–76
Traumas, 51 supplies, 117–118
evaluating, 39–40 testimony, 79–80
Travel books, 112 timing and scheduling tips, 74
Travel expenses, 113 using database during, 76–77
Travel service, 112 water, 77
Traveling, 74, 92, 111–118 what to bring into court, 76–77,
billing, 113 117–118
examinees, 35 Trial preparation, 73–74
flying, 115 language/word choice, 74
lodgings, 115–116 pitfalls, 74
meals. See Meals planning, 73–74
packing, 112–115 practice sessions, 74
sleeping, 117 presentation, 74, 80
time planning, 112–113 pretrial conferences, 74
travel information, 112 rehearsing, 74
unpacking, 116 Truth telling, 8, 13, 19, 60, 80, 82, 85.
Treater, versus expert, 8–9 See also Ethics; Honesty
Treatises, questions about, 69–70 Turning down cases, 14–15, 139
Treatment recommendations, 37–38 Type of practice expert has, effect on
Trial, 73–90 standard of care, 45–46
beepers/cellular telephones, 77 Types of cases, 43–56
breaks and recesses during, 85–86 criminal responsibility cases, 48–49
conclusion of questioning, 87 emotional injury cases, 49–51
Index 149
high-profile cases, 51–52 Word-of-mouth referrals, 104–105,

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

The Psychiatrist As An Expert Witness

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The Psychiatrist As An Expert Witness

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The Psychiatrist as

Thomas G. Gutheil, M.D.

About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi

1 Introduction: What Makes an Expert? . . . . . . . . . . . . . . . . 1

2 The Expert’s Ethical Universe. . . . . . . . . . . . . . . . . . . . . . . 13

4 Types of Typical Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

5 Discovery and Depositions . . . . . . . . . . . . . . . . . . . . . . . . . 57

6 The Expert in Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

8 Writing to and for the Legal System . . . . . . . . . . . . . . . . . 95

9 Developing and Marketing a Forensic Practice . . . . . . 103

10 The Expert on the Road: Some Travel Tips

Thomas G. Gutheil, M.D., is professor of psychiatry in the Department

What This Book Is Meant to Do

Thomas G. Gutheil, M.D.

I am indebted to the Program in Psychiatry and the Law at the Massa-

AT FIRST GLANCE, the question “What makes an expert?” seems

In the movie Amadeus, the emperor is initially resistant to Mozart’s novel

The Adversarial Context

The Prime Question

The Socratic Method

Malingering and Self-Serving Motivation

Reasonable Medical Certainty

The Hired Gun Problem

finding work, if only to avoid guilt by association and possible caricature by

Treater Versus Expert

The Humility Factor

Diamond BL: The forensic psychiatrist: consultant versus activist in legal

The Expert’s Ethical

My first adventure in the witness chair convinced me that it was as unstable

The Nonconfidentiality Warning

Ethics and the Oath

Problems of Loyalty and Identification

Nonsexual Seduction and

The Ultimate Ethical Test

TABLE 2–1. SOURCES OF POTENTIAL BIAS

likely be explored. Therefore, your ultimate test as an expert is your honesty

Norko MA: Commentary: compassion at the core of forensic ethics. J Am

IN CLINICAL WORK, the patient is your employer; that is usu-

The Retaining Attorney’s Request

Your Fitness as an Expert

The Question of Initial Bias

The Expert’s History as Possible Problem Area

history of problems in the military, juvenile offenses, a criminal record (no

Time, Fees, and Other Embarrassments

This quote is interesting from several viewpoints. As is often the case,

a deposition, for instance, or for reading a one-paragraph letter. Then, when

Roles of the Expert

The Final Decision

The Stage of Case Review

Is the Case Valid? The Threshold Question

Does the Attorney Have Merit?

if asked on cross-examination about the relative small size of those areas—

The “I’ve Got Nothing” Problem

Reviewing Cases Critically

If the witness lives locally, it might be effective and appropriate to exam-

For a number of circumstances, however, an audiotape or videotape of

For example, in the unpublished 1996 case of Lailhengue v. Mobil, a mass

“Alibi” Issues or External Consistency

cessity as treatment issues emerge in the interview. The relationship is not a

Fitting Together the Interview

The Causation or Connection Dilemma

were of a particular deviation, event, or incident; what the results were of

4. Lees-Haley PR: Attorneys influence expert evidence in forensic psycho-