How the Geriatric Psychiatrist Becomes an Expert Witness

Presenters at this symposium, held at the American Association for Geriatric Psychiatry’s 2003 Annual Meeting, related the requirements necessary for geriatric psychiatrists as they prepare to become an expert witness. Basic rules and guidelines for the entire witness process also were discussed.

How the Geriatric Psychiatrist Becomes an Expert Witness

Allan A. Anderson, MD, Medical Director and Director of Geriatric Psychiatry at Shore Behavioral Health Services in Cambridge, Maryland, explained that forensic psychiatry is a specialized field in which scientific and clinical expertise are applied to legal issues. Forensic psychiatry embraces civil, criminal, correctional, and legislative matters, but Dr. Anderson focused his presentation on the civil and criminal aspects.

Fact Witness and Expert Witness
Geriatric psychiatrists may sometimes serve as a fact witness. For example, when patients are involved in some form of litigation, their treating psychiatrists may be required to provide testimony regarding diagnosis and treatment of the patients.

An expert witness may go one step further and offer opinions on cases. Such witnesses possess scientific or professional knowledge that is beyond the scope of the average lay person. Expert witnesses are entitled to expert witness fees.

Expert Witness Report for Federal Courts
In federal courts, expert witnesses must provide a written report with a statement of their opinions. The report also should record the qualifications of the witness, including a list of publications over a period of at least 10 years, and the witness fees. In addition, witnesses must report any cases within the previous 4 years on which they have served as an expert witness. Dr. Anderson suggested that witnesses keep a log of cases for which they go to trial or are required to give a deposition, particularly because some state jurisdictions also require or will be requiring such records.

Dr. Anderson stressed that reports should be written in simple and concise language with short, readable paragraphs. Each term of technical jargon should be defined for the court. Experts should state the questions being asked and include the conclusions or responses to each question.

Working with Attorneys and Use of a Service Agreement
State statutes vary regarding evaluations for competency of individuals to stand trial or to use an insanity defense. Dr. Anderson therefore advises expert witnesses to obtain the specific legal question in writing from the attorney, along with the jurisdiction’s legal standard.

The question of fees for evaluation and testimony also should be addressed early. Furthermore, Dr. Anderson recommends that witnesses inform the attorney of any potential conflicts of interest and personal history that might be relevant to the case. Many expert witnesses provide the attorney with their resume and a written service agreement (Table 1). This document describes the witness’s plan and fees and should be signed and returned by the attorney.

Duties of an Expert Witness in Criminal Cases
In criminal cases, expert witnesses often are asked to evaluate whether a defendant is competent to stand trial, or to determine the mental state of the defendant at the time of the offense. Expert witnesses also may be asked to perform pre-sentence evaluations. For example, if a defendant has been found guilty, the expert witness may need to determine whether the defendant should be imprisoned or admitted to a psychiatric hospital or another facility.

Expert witnesses may be asked to determine the competency of an individual to confess, serve as a witness, waive Miranda rights, plead guilty, represent oneself, serve as a juror, or testify. In some states, expert witnesses may evaluate whether an individual is mentally competent to be executed.

Duties of an Expert Witness in Civil Cases
In civil cases, a major responsibility of geriatric psychiatrists is to determine testamentary capacity. For example, if an individual has died and his or her will is being contested, the expert witness will review various medical documents and reports, and interview family members and friends of the deceased to determine whether the individual was mentally competent at the time his or her will was written or altered.

Other responsibilities in civil cases include evaluating the capacity of an individual to enter a contract, consent to medical treatment, participate in research, marry, or divorce. Some issues that are more controversial include evaluating an individual’s capacity to sue or be sued, and to operate a motor vehicle.

Expert witnesses also may be required in malpractice and personal injury cases, in cases that involve nursing home litigation, and in evaluating a person’s capacity to perform a profession. Geriatric psychiatrists are increasingly being asked to determine a person’s fitness for work as the number of working older adults rises.

Qualifications of Expert Witnesses
Expert witnesses are not required to be board certified in geriatrics or forensics. For individuals who wish to obtain additional qualifications, the American Board of Medical Specialties and the American College of Forensic Examiners provide certification. The credibility of an expert witness is influenced by his or her expertise (credentials), training, and experience. These factors often are rigorously reviewed when an expert is proffered. The expert’s trustworthiness also is important, Dr. Anderson observed; witnesses should try to be objective and appear sincere.

In addition, the effectiveness of a witness depends on his or her delivery style. Dr. Anderson reported that seminars and educational programs, such as the review course provided by the American Academy of Psychiatry and the Law, are available for this purpose. Information on the course is available at www.aapl.org.

Limits of Confidentiality
Expert witnesses should provide confidentiality statements to the individuals they are evaluating. However, these individuals may not be competent to consent to such agreements. Dr. Anderson therefore advises witnesses to explain to the attorneys of these individuals the limits of confidentiality. “The attorney is really the person whom you are working for and who can give you the authorization to proceed,” he pointed out. Such issues do not apply to court-ordered evaluations.

Some witnesses use verbal agreements that are described in the opening paragraph of their reports, whereas others use a formal, written document that is signed by the patient. This agreement describes the limitations of confidentiality and on whose behalf the expert witness is testifying.

Ethical Issues
Expert witnesses must inform individuals being evaluated whether they are working for the plaintiff or the defendant, especially because individuals have the right to remain silent during the evaluation. Similarly, witnesses should explain to the persons being evaluated that the possible outcomes of the evaluation may be favorable, neutral, or unfavorable. Individuals who choose not to participate in the evaluation should be informed that their non-cooperation will be recorded in the witness’s report.

Witnesses are not advocates for the attorneys, Dr. Anderson pointed out. Rather, they are forensic evaluators who rely on their scientific and clinical skills to make an objective evaluation. Once witnesses have drawn their conclusions, they may advocate their opinions.

Expert Witness Fees
Expert fees should be greater than the witness’s clinical rate, but should be market based. Some witnesses charge higher fees for providing a deposition or going to court. Dr. Anderson recommends that witnesses request payment in advance. This may not be possible or necessary if witnesses are working for a reliable client, e.g., an insurance company or an attorney with whom they have worked with extensively in the past. However, in most cases, advance payment is advisable.

Medicare Coverage
Witnesses need not use an ABN for legal evaluations (forensic evaluations ordered as a consult) and reports, because these evaluations are not covered by Medicare. For Medicare coverage of such evaluations, the witness requires a written request from the attorney, not a physician. ABNs are required only when the reasons for the evaluation are questionable. However, Medicare covers evaluations for determining competency in making medical decisions.

Marketing of Expert Witness Skills
Effective communication is an important aspect of marketing one’s expert witness skills. Dr. Anderson advises witnesses to give presentations to local physicians, attorneys, and to the general public. He further recommends that witnesses develop a website to advertise their skills. The yellow pages are appropriate for print advertising, which should be conservative and simple. However, Dr. Anderson cautions against advertising in (legal) trade journals.

Basic Rules and Guidelines for the Witness Process

“The forensic arena is an adversarial system,” observed Mark S. Fettman, MD, Medical Director of Psychiatry at St. Luke’s Hospital in San Francisco, California. “Witnesses are put on the spot, asked questions, and are expected to answer almost immediately,” Dr. Fettman explained. As a result, the cross-examination is one of the most daunting aspects of forensic psychiatry. Dr. Fettman reviewed some basic guidelines regarding cross-examinations and direct examinations in court and provided some insights on working with attorneys.

Preparing for the Direct and Cross-Examinations
Dr. Fettman strongly recommends that expert witnesses work closely with the attorney on their side. He advises witnesses to consider the salient strengths and weaknesses of their arguments before the trial. Pretrial preparation time with the attorney may vary from 1 hour to several hours.

The direct examination of expert witnesses, which is conducted by the attorney on their side, precedes the cross-examination and is an opportunity for witnesses to make their best points and arguments. Cross-examinations are usually adversarial because they allow the accused party to question the accuser; thus, the weaknesses in a witness’s argument are highlighted. Dr. Fettman advises witnesses to remain polite and calm and to answer only what they have been asked. If provoked, witnesses may expect their attorney to raise an objection regarding the attitude or questions of the other attorney. Expert witnesses should avoid the use of technical jargon because the “tryer of fact”—the judge or jury, as determined beforehand by the litigants—must be able to understand the testimony.

What Are the Goals of the Cross-Examining Attorney?
Dr. Fettman explained that attorneys have different court styles, ranging from mocking to fiercely aggressive. The primary goal of the attorney is to interrogate and discredit the expert witness. Thus, warned Dr. Fettman, the attorney may question the witness’s fees, credentials, or professional advertising. Again, witnesses are advised to respond specifically and truthfully to such questions (Table 1).

Attorneys also may try, often in a circuitous manner, to make expert witnesses change their arguments and expert opinions. Witnesses should be prepared for this and should strive to maintain their credibility and objectivity.

What Are the Goals of the Expert Witness?
Dr. Fettman observed that expert witnesses are, in essence, teachers: their aim is to teach the tryer of fact about psychiatry and explain how they, as qualified experts, arrived at their opinions. Therefore, to get their point across, witnesses should direct their testimony at the tryer of fact rather than the questioning attorney (Table 1).

A legal case is an inherently adversarial process and involves arguments from both litigant parties. All of these arguments will have strengths and weaknesses, Dr. Fettman pointed out. He recommends that witnesses diffuse weaknesses in their own arguments by revealing them in the direct examination, rather than allowing them to be exposed and highlighted in the cross-examination. He reiterated that experts should remember that they, and not the cross-examining attorney, are the experts in psychiatry, and they should maintain this distinction. Other experts hired by the opposing litigant are not present at the time of the direct examination; thus, witnesses should use the direct examination to present their arguments in a clear and confident manner.

In summary, Dr. Fettman observed that expert witnesses should not overestimate their role and responsibilities in a court case. “You are a bit player in a three-act play,” he pointed out. Expert witnesses should realize that although their testimony is very important, lawsuits are very complicated processes and the outcomes are affected by many factors other than the expert testimony.