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 (see story above). 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."
