Courts and Torts: The Psychiatrist Preparing for Trial. Brian F Hoffman MD, FRCPC 1

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1 Courts and Torts: The Psychiatrist Preparing for Trial Brian F Hoffman MD, FRCPC 1 Objective: To outline how a psychiatric expert can do an impartial assessment and medicolegal report and then give an effective presentation in court that can sustain cross-examination. Methods: The legal principles of litigating emotional trauma are reviewed, including proving causation, characterizing emotional suffering, assessing disability, and determining a realistic prognosis. Results: Psychiatrists must understand the interplay of legal and psychiatric principles when they are asked to assess litigants who are suing for monetary compensation for a widening range of emotional injuries resulting from motor vehicle accidents, slips and falls, incest and sexual abuse of children, discrimination, unlawful dismissal, malpractice, human-made disasters, product liability, and intentional torts, to name a few. Conclusion: The psychiatrist can prepare his or her attitude, knowledge, and skills to give a presentation in court that will be credible, trustworthy, and dynamic. With adequate preparation, the psychiatric expert can bring an informed psychiatric perspective to the court that will have a significant impact on the outcome of the judicial deliberations. (Can J Psychiatry 1997;42: ) Key Words: litigation, forensic assessments, expert witness, emotional trauma, psychiatric medicolegal reports Mrs Bertram: That sounds like nonsense, my dear. Mr Bertram: May be so, my dear; but it may be very good law for all that. Sir Walter Scott (1815) Litigation involving emotional trauma is becoming more frequent as the courts try to compensate victims for various injurious acts. Substantial damages have been awarded because of the emotional consequences of motor vehicle accidents, incest and sexual abuse of children (1), work place stress (2), discrimination, breach of contract, unlawful dismissal, malpractice, human-made disasters, product liability (for example, defective heart valves), and intentional torts. The opinion of a psychiatric expert is critical to the legal outcome of many of these cases. Manuscript received August 1996, revised and accepted February Chief of Psychiatry, North York General Hospital, North York, Ontario; Associate Professor of Psychiatry, University of Toronto, Toronto, Ontario. Address for correspondence: Dr BF Hoffman, North York General Hospital, 4001 Leslie Street, Room 805E, North York, ON M2K 1E1 Can J Psychiatry, Vol 42, June 1997 Many cases involving emotional trauma are settled out of court, but those which proceed to trial are often the most complex and polarized of cases. Unfortunately for the courts, the practice of psychiatry is concerned with morbid feelings, thoughts, and motivations that are real, just as love and hate are real, but difficult to quantify, measure, or prove in the individual case. Judges and juries are often biased against recognizing emotional or psychiatric problems. If the psychiatrist is unaccustomed to the adversarial arena and gets caught up in the battle with anger, defensiveness, or a biased opinion, his or her effectiveness or helpfulness to the court may be limited. The common legal questions that a psychiatric expert must understand in a case of emotional trauma before the court have been described in a previous paper (3) and expanded in book form (4). First: Is emotional pain or suffering present? The terms pain and suffering are frequently used, even in cases of psychic distress, because litigation began with physical trauma. One standard jury instruction defining emotional pain or distress is mental distress, mental suffering, or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as 497

2 498 The Canadian Journal of Psychiatry Vol 42, No 5 physical pain (5, p 1). For the psychiatric consultant, this definition is applied to the psychiatric question, Are there emotional symptoms present and do they translate into a psychiatric disorder? Second: What is the cause of the patient s pain and suffering? Is the mental distress caused by the accident or by something else? In contrast to psychiatric views of multidetermined causes, legal cause refers to the sine qua non cause, which is necessary but not necessarily sufficient to produce the effect. The test for legal causation is often referred to as the but for test: but for the accident, would the person be suffering in this manner and to this degree? Third: What is the effect of the pain and suffering on the plaintiff? How do the symptoms and condition caused by the accident produce impairment and disability? Assessments of impairment (caused by medical conditions) and disability (affected by many biopsychosocial factors) are discussed in an American Medical Association publication (6). Although many physicians confine themselves to assessing impairment, psychiatrists may be asked to assess motivation and disability for the court after reviewing multidisciplinary examinations and surveillance reports that are not usually available for standard clinical assessments. Fourth: What is the prognosis? What is a realistic appraisal of the future effects of the injury, the pain, and the suffering on the plaintiff? This prognosis may contrast with the hopeful or optimistic one that most patients are given by doctors and therapists for therapeutic reasons. Finally: Is the patient s history and presentation credible in the opinion of the expert, so that the above issues can be evaluated fairly on the available information? The best trial results, for either the plaintiff or the defence, are the product of effective preparation by both the lawyer and the psychiatrist, who should prepare together and separately. After preparing separately, a series of pretrial meetings between the lawyer and psychiatrist will facilitate the smooth flow of evidence at trial and reduce the chance of unpleasant surprises. The Psychiatrist before Trial Trial preparation for the psychiatrist begins the first time he or she interviews the plaintiff. Even in the initial interview and with the first report, a psychiatrist should be aware that he or she may be called upon to give evidence at trial. Philosophical Stance A fundamental requirement for a psychiatrist assessing litigants is to be comfortable with the role of an expert witness. The psychiatrist will have to determine whether he or she feels that the psychiatrist s role is that of an advocate or an impartial expert. Many authors, including this one, recommend maintaining an impartial role at all times in the litigation process. Some legal experts, however, believe that the medical expert, once he or she forms an opinion, must be free to advocate opinions and conclusions that support the position being advanced by the respective client if supportable on the facts (7). This position is fraught with difficulties, however, if the expert appears to be biased or suppresses contravening facts or opinions. The perception that the psychiatrist is advocating for one side rather than maintaining expert impartiality may discredit the testimony of the otherwise authoritative witness and do damage to his or her client s case in the long run. Another factor that contributes to the psychiatrist s reluctance to give evidence is the concern that the legal process is an infringement on the privacy of the patient psychiatrist relationship. This is particularly true for treating psychiatrists who are called on to give evidence concerning their own patients. In many jurisdictions, a victim who chooses to sue someone for injuries waives confidentiality to both preaccident and postaccident health information. If a patient wishes to sue, he or she may want full disclosure or the court may order it so that the defence can explore other causes of the patient s misfortune for which the defendant is not responsible. Impartial Assessments and Reports It is important for a mental health professional to begin preparing for a trial by asking for all relevant information, seeking independent history from other sources, such as accident reports, clinical records, and relatives, conducting a thorough and fair interview, and then preparing a report that is impartial (8). The impartial consultant will note variations or gaps in the patient s history or observations made by other health care providers that contrast with his or her own findings and direct observations and should state how these affected the opinions expressed in the report. The report will contain all of the important findings of fact and verifiable events and the observations upon which the clinical opinions of diagnosis and prognosis are based. In the United States, the adversarial system has encouraged one-sided and biased reports by experts, but amendments to Rule 26 of the Federal Rules of Civil Procedure, which became effective in December 1993, are likely to filter down to state laws and affect discovery and rules of disclosure in tort actions. This could encourage full disclosure at all levels of the court system and contribute to unbiased reports and settlement prior to trial (9). The best reports are those which are written in plain language and which set forth the history in a structured and comprehensive manner. The reports should be written only by the psychiatrist without the help of the lawyer. If a lawyer points out errors or omissions in a report, it is usually better to write an addendum or a follow-up report than to rewrite the report as if the psychiatrist were a puppet of the lawyer, which the opposing lawyer can expose and then exploit in court.

3 June 1997 The Psychiatrist Preparing for Trial 499 Knowing the Court System In Canada, less than 5% of civil actions go to trial because they are settled through negotiations. The psychiatric aspects of civil litigation are not well taught as part of forensic or general psychiatry. The end result is that lawyers do not know whom to consult, and many practitioners do a few cases and have little court experience. To overcome a reluctance or fear of the courtroom, the potential expert witness will find it useful to become familiar with the trial location, the use of reports and depositions before trial, the giving of evidence, and the techniques and strategies likely to be employed by opposing counsel on cross-examination. Information about these issues should be supplied by the lawyer in a pretrial meeting. Summons to Witness (Subpoena) When the psychiatrist is served with a summons to witness, there is no immediate reason to feel anxious or angry because of the potential inconvenience. The initial demand for attendance at court on a specific date may be meaningless because delays are common, even routine. A phone call to the lawyer will usually ensure that you are called only when needed. Lawyers may summons witnesses as a trial date approaches so they can get an adjournment if the witness is on holidays and unable to attend on a specific court date. If the witnesses are not summonsed, the court may be unwilling to give an adjournment. Although the summons is often accompanied by a small witness fee, the lawyer will still be responsible for professional fees if the expert is required to attend. If the opposing side sends a summons, the expert may want to inform the lawyer who retained him or her and confirm that the fees will be paid by his or her client. Pretrial Meetings with Counsel In preparation for trial, the psychiatrist and counsel often have an initial meeting within a week of the trial date, with a follow-up meeting the night before the psychiatrist is expected to give evidence. The lawyer will usually lead the meeting, focusing on the important issues by providing the expert with a review of the important facts and exchanging new information obtained after the last assessment by the psychiatrist. This information must be given careful consideration before the expert takes the stand if the credibility of the expert is to be sustained. The worse scenario is for the expert to learn of new facts while on the stand, such as a history of a previous accident or alcoholism, that would have influenced the expert s opinion. The initial meeting is an opportunity to review the psychiatrist s résumé. The lawyer can also review the expert s opinion concerning specific issues including diagnosis, causation, prognosis, and the plaintiff s credibility. The psychiatrist s opinions regarding impairment and work disability may be critical to the lawyer in establishing past and future economic loss, which is often the largest component of the financial settlement to which the plaintiff is entitled. It is often helpful to have a dry run, with counsel asking questions and consultant answering to anticipate direct examination in court. It is worthwhile to anticipate questions expected on cross-examination. This will produce insight into the strengths and weaknesses of the lawyer s and the psychiatrist s opinions. Presentation at Trial At the onset of the trial, the presiding judge may make an order excluding all witnesses. If such an order is made, only the parties, their counsels, and the witness giving evidence at the time are permitted to remain in the courtroom. Should the expert arrive while court is in session, it will be necessary to deliver a note to the counsel s table so that the expert does not enter the room if an exclusion order is in force. A note confirming the arrival of the expert will be appreciated by counsel, who will then know that the next witness is available without delaying the proceedings. It is important for the psychiatrist to confine opinions given at trial to his or her area of expertise. As long as evidence is confined to the scope of expertise, the psychiatrist will likely be perceived as having a greater knowledge of emotional issues and psychiatric diagnosis and treatment than the cross-examining lawyer or other specialists. Effective Communication At the pretrial meetings, counsel can review with the psychiatrist the basic principles necessary for the effective delivery of evidence at trial. Effective communication when testifying is an important element in persuading a judge or jury and is enhanced by the expert s demeanour, general appearance, and conduct in the court room. Rada (10), in his article The Psychiatrist as Expert Witness, describes 3 ways to prepare to give evidence in court: 1) attitudinal preparation, 2) cognitive preparation, and 3) skills preparation. Attitudinal Preparation. The attitude of the psychiatrist will influence effectiveness in court. An expert who has the attitude of a teacher who carefully explains complex concepts simply is especially valuable. Confidence, without arrogance, is perceived in a positive light, whereas academic jargon and rambling or dogmatic inflexibility are usually seen negatively. The following guidelines are offered to the psychiatrist as expert witness (10): 1) discard the notion that you are above criticism as an expert and overcome any feelings that you are infallible in your field of expertise; 2) be prepared to act courteously, even in the face of improper treatment by opposing counsel; 3) recognize that some issues, especially

4 500 The Canadian Journal of Psychiatry Vol 42, No 5 in psychiatry, do not fall into black and white categories. Answers need not be given with certainty, and it may be appropriate to answer I don t know ; and 4) do not let opposing authorities overwhelm you. The court wants to hear your opinion, not the opinion of a textbook or reference. Acknowledge disagreements; it is not uncommon for capable experts to disagree on the same topic. Cognitive Preparation. Cognitive preparation involves reviewing the facts of the case and the legal issues to be determined. An example of a legal issue is the difference between the burden of proof required in a civil case as opposed to a criminal prosecution. In the case of a civil action, the plaintiff must prove the issue of causation on a balance of probabilities (51%, or more likely than not), as opposed to the onus placed on the prosecution in a criminal case, which requires that proof be established beyond a reasonable doubt. A psychiatrist commenting on causation does not have to express an unconditional opinion that the accident caused or did not cause the plaintiff s problems. The expert can give a thoughtful opinion based on a balance of probabilities. Psychiatric evidence can be crucial when plaintiff s counsel is attempting to advance a thin skull theory. The psychiatrist should be well versed in the basic legal principles of the thin skull theory in contrast to the crumbling skull theory (3). Skills Preparation. Skills preparation refers to presentation skills in the courtroom. Psychiatrists would be well advised to begin with simpler cases rather than controversial cases. In my experience, the assessment for a victim s lawyer is often less complicated than defence work because of the similarity to clinical practice, with an inherent tendency to believe the patient. In plaintiff work, several interviews are permitted, and corroborative histories from relatives and others are usually available. Experts retained by the defence often have difficulty gaining the trust of the plaintiff, who may be frightened, suspicious, or even hostile in the interview. The expert for the defence is often confined to one interview of the plaintiff, without access to relatives, and may be enlisted quite late in the litigation process after the lawyer has collected a thick legal brief that may contain subtle or gross evidence that raises serious doubts about the plaintiff s version of the history. It is wise to stay within one s clinical, research, or academic experience within the broad area of litigation. For example, a clinician might be comfortable discussing a chronic pain syndrome caused by an accident, but not with the long-term consequences of childhood sexual abuse. The psychiatrist, with time, will become more capable in anticipating and dealing with contrary opinions in the adversarial arena of the courtroom and eventually be able to draw and defend conclusions publicly on evidence that becomes available during the trial. To maintain credibility and objectivity, the expert may have to modify his or her opinion if this is warranted by the evidence presented. Credibility of the Expert It is important to understand methods of giving credible and persuasive evidence. Persuasive witnesses are seen by a judge or jury as more credible, and their evidence will be preferred over equally qualified witnesses. Bank and Poythress have described 3 characteristics that increase credibility when the expert is giving testimony: expertise, trustworthiness, and dynamism (11). Persons who are perceived as having a high degree of expertise are described by audiences as trained, experienced, informed, authoritative, able and intelligent (11, p 176). The qualifications of an expert should be thoroughly presented at the beginning of testimony because this will affect how much weight the judge or jury will give to the opinions expressed by different experts. Witnesses are highly valued if other practitioners turn to them for opinions in the specific field. This may be measured by such background as academic appointments, positions of responsibility, or authorship of articles and books on the topic. The second component of credibility is trustworthiness, which is related to the apparent honesty and objectivity of the witness. Did the expert witness suppress or overlook contrary history or observations by others, such as the preaccident clinical notes of the family physician, before forming an opinion and writing a report? The subject of fees may be raised in order to attack the trustworthiness of the witness. The witness who is unusually vague or slippery when answering questions, or dogmatic or inflexible when confronted with contradictory evidence, will appear untrustworthy. The third component of credibility is dynamism. The juror is more easily persuaded by personable or friendly experts; this is true independent of technical or medical truthfulness. Speakers with little dynamism are characterized as meek and hesitant. Speakers with dynamism often resort to an emotional, rather than a logical, line of evidence, especially in front of a jury. Conclusion By following some of the principles and recommendations contained in this paper, the psychiatrist can work with the lawyer to be well prepared and to present relevant, comprehensible, and unbiased opinions in a professional and persuasive manner. The presentation of the properly prepared and unbiased expert will withstand the rigours of cross-ex-

5 June 1997 The Psychiatrist Preparing for Trial 501 amination and bring an important, informed psychiatric perspective to the judicial deliberations. Clinical Implications Psychiatrists are needed to inform the courts and the public about the emotional sequelae of trauma. Psychiatric evaluations must be fair, comprehensive, and systematic, but must address specific legal questions. The psychiatric expert can improve performance in court by preparing his or her attitude, knowledge, and skills. Limitations Because of the adversarial system, critical information may be withheld from the psychiatric expert. Psychiatrists have limited ability to detect malingering. In a trial, psychiatric principles and knowledge may come second to legal principles and processes. References 1. Neeb JWW, Harper SJ. Litigation for childhood sexual abuse. Toronto: Butterworths; McDonald JJ Jr, Kulick FB, editors. Mental and emotional injuries in employment litigation. Washington (DC): Bureau of National Affairs; Hoffman BF, Spiegel H. Legal principles in the psychiatric assessment of personal injury litigants. Am J Psychiatry 1989;146: Hoffman BF, Rochon J, Terry J. The emotional consequences of personal injury: a handbook for psychiatrists and lawyers. Toronto: Butterworths; Kadue DD. The legal context. In: McDonald JJ Jr, Kulick FB, editors. Mental and emotional injuries in employment litigation. Washington (DC): Bureau of National Affairs; p American Medical Association. Guides to the evaluation of permanent impairment. 3rd ed. Revised. Milwaukee: American Medical Association; Slovenko R. Psychiatric expert testimony and the adversarial system. In: Psychiatry and law. Boston: Little, Brown; p Hoffman BF. How to write a psychiatric report for litigation following a personal injury. Am J Psychiatry 1986;143: Metzner JL. Amendment to rule 26: information for the forensic psychiatrist. American Academy of Psychiatry and the Law Newsletter 1994;19: Rada RT. The psychiatrist as expert witness. In: Hofling CC, editor. Law and ethics in the practice of psychiatry. New York: Brunner/Mazel; p Bank G, Poythress N. The elements of persuasion in expert testimony. Journal of Psychiatry and the Law 1982;l0: Résumé Objectif : Décrire comment un expert en psychiatrie peut réaliser une évaluation et un rapport médico-légaux impartiaux et ensuite donner, devant le tribunal, un exposé efficace qui pourra résister au contre-interrogatoire. Méthodes : Les principes juridiques des poursuites pour traumatismes affectifs font l objet d un examen, y compris la preuve de causalité, la caractérisation de la souffrance morale, l évaluation de l incapacité et la détermination d un pronostic réaliste. Résultats : Les psychiatres doivent comprendre la réciprocité des principes juridiques et psychiatriques qui entrent en jeu lorsqu on leur demande d évaluer les parties à un litige qui intentent des poursuites afin d obtenir réparation financière d un éventail croissant d atteintes morales découlant d accidents de la route, de glissades et de chutes, d incestes et d agressions sexuelles à l égard d enfants, de discrimination, de congédiements illégaux, de fautes professionnelles, de catastrophes causées par l homme, de responsabilités du fait de produits et de délits intentionnels, pour ne nommer que ceux-là. Conclusion : Le psychiatre peut préparer son attitude, ses connaissances et ses compétences afin de présenter un exposé qui sera crédible, digne de foi et dynamique. Grâce à une préparation appropriée, l expert en psychiatrie peut faire valoir une perspective psychiatrique éclairée au tribunal, ce qui aura une incidence importante sur l issue des délibérations.

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