How to choose an Expert Witness

One of the most daunting
and frustrating tasks
for an attorney
is trying to find
the best possible
psychiatric expert
and then deciding
if this doctor is the
right choice
for the case at hand.

 

One of the most daunting and frustrating tasks for an attorney is trying to find the best possible psychiatric expert and then deciding if this doctor is the right choice for the case at hand. Historically psychiatry has been the least understood of the medical specialties. Many attorneys do not even know the difference between a psychiatrist and psychologist, let alone what constitutes a "top notch" forensic psychiatrist! Although one may be a superb clinician or researcher, this is no guarantee of even passable skills in forensic psychiatry. In fact, many renowned psychiatrists confess to intense anxiety at the mere "thought" of being deposed or undergoing cross-examination in court.

To add to this confusion, forensic psychiatrists often have radically different opinions about the same case. Are they "hired guns or quacks?" Rarely. Over the last 30 years, I have reviewed hundreds of reports by forensic psychiatrists, most of whom aspire to be as honest and thoughtful as possible in formulating their opinions. I believe that these seemingly “polar opposite” opinions usually reflect different theoretical orientations and variable clinical skills rather than unethical behavior.

Notwithstanding this confusing state of affairs, the task of finding a psychiatric expert is often delegated to an associate or a paralegal who does an internet search, makes a few phone calls and goes back to the partner with a curriculum vitae, a fee schedule and not much else. However, by asking a few key questions, it is possible for a junior staff member to shine and have a significant impact on the outcome of the case.

Always listen to your "gut reaction" to the prospective expert. Try to determine the basis for your emotional response if it is intense. When we meet someone for the first time, we are picking up a multitude of clues about who this person really is. Some of these clues come from the way the person looks, walks and talks. However, we also pick up information based on our unconscious reactions. Good psychiatrists use this tool all the time. Do not forget that a powerful positive response to a person is just as important as an intense negative response.

As an aside, research has shown that we are more effective in determining if someone is lying to us by listening to them on the phone rather than listening to them in person! It seems as though body language and facial expression is a way of distracting the receiver.

Don’t be afraid to ask a "stupid question." In fact, there is no such thing. For example, I have found that medical students ask better questions than psychiatric residents or even full-fledged psychiatrists. They tend to ask questions that get to the core of a subject, often picking up inconsistencies. Often, the less that you know, the less likely it is that your thinking is contaminated by preconceived ideas or prejudices.

Remember that when you speak to the expert, you are the one who is doing the hiring. If s/he is rude to you now, imagine how s/he will treat you after you retain her! Do not hire this person unless you are a "masochist!"

Although we prefer to avoid the topic, some physicians and attorneys have psychiatric dysfunctions. It comes with the territory. The work is demanding and patients and clients are not always appreciative.

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