Are you sure
you can hold your own as an expert witness during cross-examination
by lawyers at the top of their form?
Attorney
Bernard Rothman shared some of the tricks of his trade at an annual
meeting workshop last month as part of a presentation on an innovative
program known as the New York State Interdisciplinary Forum on
Mental Health and Family Law. The goal of the forum is to educate
lawyers and mental health professionals about their respective
disciplines so that client/patients are better and more sensitively
served.
"There
are four primary areas the lawyer will use to challenge the mental
health expert in court," said Rothman in a lecture similar
to one that he said he presents to forum members. "Those
areas are bias; prior inconsistent statements; use of treatises,
books, and articles; and broad attack on the witness's credibility.
I tell mental health professionals they need to understand that
an expert's opinion is not scientific but a clinical
judgment that the expert should be able to defend."
With
regard to bias, the attorney might raise questions about the expert's
remuneration: Are you being paid a contingency fee? Will you get
a bonus if the client wins the case? Another area is the relationship
between the expert and attorney who hired him or her. The cross-examining
attorney might ask, How often do you conduct evaluations for the
attorney who hired you? When was the last time you socialized
with the attorney or made a professional presentation together?
The
attorney may try to show that the expert is a "professional
witness" rather than a treating clinician and investigate
or inquire about the number of times the expert has testified
in court or conducted forensic evaluations. The assumption is
that experts who are "professional witnesses" do not
have the direct experience necessary to make clinical judgments.
Rothman
noted that psychiatrists "have a habit" of leaving paper
trails--"They like to write--book chapters, journal articles,
papers, reports. Today it's very easy to research those writings
and prior testimony with the aid of a computer." By comparing
current testimony with past writings, attorneys may uncover inconsistencies
with which to confront the witness.
Attorneys
may also question experts about prominent professional documents
and whether they abide by or agree with those writings. For example,
a psychiatrist might be asked such questions as, Do you accept
DSM-IV? Do you accept APA's position statement on ----?
Rothman
advises psychiatrists to be wary about answering these kinds of
questions. Rather than giving an outright answer, expert witnesses
should emphasize their own clinical experience. They can explain
that such documents represent the current thinking in the field
but may not apply to a specific case.
Finally,
Rothman said that the cross-examining attorney may make a "broad
attack on the expert's credibility." The attorney may try
to show that the expert spent insufficient time on the evaluation
or failed to conduct certain tests or obtain background information
necessary to arrive at an opinion.
"The
underlying point of lectures such as this one," concluded
Rothman, "is to give mental health professionals a better
understanding of what goes on in the law."
(Psychiatric News, June 21, 1996)
