The Hired Gun

I know I'm going to get nudged to talk about this article so I'll beat Dinah to the punch. Today's New York Times has a story entitled "Witness for the Prosecution" about a neuropsychologist who frequently is retained to testify on behalf of the state in criminal trials. The expert witness gets criticized for slanting his opinion in favor of the prosecution by ignoring previous history or making certain presumptions about the defendant's previous education or experience. You can read the article yourself, I won't repeat it here.

The article quotes questions from the doctor's cross-examination about the assumptions he based his opinion on: how do you know the defendant took a psychology class? Why are you ignoring or not considering his mental health history? Why are you disregarding DSM diagnostic criteria?

All of this sounds pretty horrible, but the fact of the matter all the questions asked by the cross-examining attorney at the beginning of this article are routine questions that will get asked of any testifying expert. As I mentioned at our recent talk at the Johns Hopkins Odyssey lecture, these questions are designed to make the expert look incompetent or foolish. They are an attempt to undermine the credibility of the expert in the eyes of the judge or jury and to get him flustered and confused.

This is predictable, and to a certain extent it's a choreographed dance. When you express an opinion you will be asked the basis for that opinion---what information did you consider, did you have all the information, why do you rely more heavily on one source of information than another, did you consider the credibility of the information?

The next step is to alter all the details slightly in an attempt to get your opinion to waver or even change: what if this piece of information weren't true, or you found out a certain fact was different from what you assumed? How would this affect your opinion? This step of the process could go on for hours. It can be painfully boring for a jury, so when the NYT article talks about the importance of "presentation" and communication for a good expert witness, that's why. You have to hold a jury's attention for hours in spite of excruciatingly detailed questions, a court room that is either too hot or too cold, and chairs that you can't quite get comfortable in no matter how you twist.

Once all of this is exhausted the last stage is to attack you, personally. If you don't have the guts for this, if you have an issue in your professional past you'd rather not have public, this is the stage that will weed you out of the expert witness field. I note that the NYT article mentioned the expert's appearance on his Facebook profile, and also mentioned he had a Twitter feed. I plan to send this article to my students to remind them that anything they write, anywhere, could theoretically end up on the New York Times web site. I certainly keep this in mind when I blog and tweet. This is the chance you take when you do forensic work, whether or not you are forensically trained.

The last point I'm going to make using this article is the fact that this particular expert is retained as a prosecution expert. There are both advantages and disadvantages to being retained by one side or another, as opposed to working as a neutral court evaluator as I do. A defense expert has the advantage of being able to get in to see the defendant as soon as possible after the offense. This is good because you're more likely to get an accurate picture of the defendant's mental state at the time of the crime. A state or court's expert sees the defendant weeks or even months later, after bail review and arraignment and after the defense expert has had a chance to advise counsel on the likelihood of a viable insanity defense. Experts acting in a neutral court-appointed role have to work harder to gather the data to put together a retrospective picture of that mental state.


I could go on and keep rambling about this but that's enough for now. The NYT's point about the expert being a hired gun as an old one I've talked about before. Ironically, the NYT just made my point about this---if you are a hired gun everyone will know it, it will undermine your credibility and make you less useful as an expert. Being a hired gun is bad for business so most experts know you just can't get away with it over the long term. And that's one of the standard cross-examination techniques as well---trying to paint you as a hired gun.

Enough.

My Doctor, My Expert

In Dinah's post "The Chapter I Wish We Had Written" an anonymous commenter wrote about his problems finding an expert witness for his or her employment discrimination case (since I don't know if Anonymous is male or female I'm going to use a standard male pronoun in this post---apologies if I got this wrong). Anonymous asked his doctor to help with the case, but he refused. He explained to Anonymous that he would be a biased witness and Anonymous also understood that the doctor's involvement might affect the therapeutic relationship. Anonymous's doctor gave her a number of referrals to forensic psychiatrists, but since he was not working with an attorney no expert would take the case. Anonymous was understandably frustrated by this situation.

I wanted to write about this because this situation comes up fairly often and I get calls from friends, colleagues and former students asking how to handle it. I've already written about what to do when you get served with a subpoena in my post "When Lawyers Call."

First of all, I think Anonymous's doctor was particularly astute to recognize the dilemma that arises when trying to help patients in situations like this. I try to prepare psychiatry residents during their training to help them handle this problem, but in the days before forensic rotations were required in residency doctors didn't get that preparation. Anonymous's doctor is either young enough that he had forensic education during residency, or old enough that he got some real-life experience with it. Either way, he was right to recognize that he could be biased and that he was not in a position to offer a forensic opinion, and to make a referral to others who could.

In civil litigation expert testimony is usually needed to address the following questions:
-what is the plaintiff's diagnosis?
-what are the symptoms of that illness and how do they impair the plaintiff's life?
-what is this treatment for this condition?
-has the plaintiff improved as much as he will improve?
-what caused the plaintiff's condition?
-what are the plaintiff's permanent damages?

A treating clinician is usually called as a "fact" witness. A fact witness is someone who testifies about information they've directly seen or heard. Fact witnesses can't draw conclusions or offer opinions about their observations, and they can't be paid for their time testifying. Expert witnesses are allowed to draw conclusions or offer opinions about their observations.

Sometimes it gets tricky sorting out whether or not a treating clinician is being offered as a fact witness or as an expert witness. For example, a medical diagnosis could be considered a "fact" because it's a piece of information documented in a medical record. Testimony about a medical diagnosis could also be considered expert testimony, because the doctor is drawing a conclusion from his observations: ("I observed a sad expression and the patient reported persistent feelings of anhedonia and worthlessness, so I concluded the patient had clinical depression.").  It's important to clarify up front whether the clinician is serving as a fact witness or as an expert witness.

Role clarification is also important because you also have to clarify who is paying you and for how much. Some unscrupulous lawyers may try to call a doctor as a fact witness, knowing fact witnesses can't get paid for their time, but then will try to squeeze an expert opinion out on the stand regarding causation and damages. Shame, shame, on these folks! If you are qualified as an expert on the stand, you are entitled to expert witness fees.

Regardless, generally accepted ethical guidelines state that it is a conflict of interest to serve as both a forensic expert and treating clinician. If you end up stuck in that position---say you can't get out of a subpoena and you are required to offer expert testimony about a patient's diagnosis and factual information about treatment---how do you avoid looking like a fool or hurting your patient?

First, admit what you haven't done as a "real" forensic expert: you haven't interviewed collateral informants, you don't have all the investigation reports or records, you don't know your patient's entire litigation or criminal history, or the extent of pre-existing injuries, etc etc. For all these reasons, you are unable to offer an ultimate opinion about causation or damages. No one can force you to form an opinion if you have none. In this situation, "I don't know" is the correct answer.

If you know you're going to have to testify, prepare your patient in advance for what you might have to say. Because you're given access to many personal areas of a patient's life, some irrelevant but damaging information could be brought out in court. No one should be surprised, particularly not in a negative way, about what is being said. A treating psychiatrist should also be prepared for what could be said about him in court: How many times did you take your board exams? And did you pass? How much money do you make from expert testimony? Did you consider other possible causes of your patient's problem? Why didn't you do (X, Y or Z)? A clinician could be left feeling like the shoddiest doctor on earth, and that isn't going to help the next time the patient comes into the office.