Psychological testimony is required in more than half the civil trials that unfold each year in the nation's courtrooms, and it is a rare criminal case that doesn't include a psychiatric evaluation during some stage of the proceedings. Yet despite the significant number of interactions between lawyers and forensic psychiatric experts that occur daily, there is still a fault line that separates them. This fault line permeates the relationship with a potential for friction that can create a disaster for the client whose interests are at stake.
Although the ever-present tension usually exists away from public scrutiny, it percolated to the surface during one of the nation's most notorious criminal cases. Three years ago, in testimony during the penalty phase of the Menendez trial-in which brothers Erik and Lyle were convicted of the brutal shotgun slaying of their parents-William Vicary, M.D., J.D., a defense psychiatric expert, admitted he altered session notes under pressure from famed criminal defense attorney Leslie Abramson. Claiming that Abramson threatened to throw him off the case if he refused, Vicary made what he later admitted was a disastrous decision, succumbing to undue influence or intimidation. "It does take courage to just draw the line and just say no," he told Psychiatric Times (PT June 1996, p1).
While all of the sources interviewed for this article readily conceded that the tension between lawyers and their retained forensic experts exists, they also offered ways to avoid crossing the line and to improve collaboration. The first step, however, is to recognize that law and psychiatry are just plain different.
"I train forensic psychiatrists…and I'm always teaching them how to deal with lawyers and…that 'other world of the law' where the goals of the legal system are very different than the goals of the medical system," said Saul J. Faerstein, M.D., a clinical professor of psychiatry at the University of California, Los Angeles School of Medicine. During a 25-year career, Faerstein has testified in more than 350 cases, and he has been involved in several high-profile proceedings, including the O.J. Simpson murder case. "There are huge differences between the way lawyers think and the way psychiatrists think," he stated.
In the legal system, Faerstein said, there is an "average reasonable man" standard, in which everyone has free will, and everything is reduced to "black and white, good or bad." Then along comes the psychiatric expert who says that everything is not clear-cut, that there is an element called psychic determinism that can affect free will, and that there just aren't any simple solutions in an often unfair world. "It's a whole different set of standards and beliefs that some lawyers have a difficult time assimilating," Faerstein said, and this defines the divide between the professions.
Ultimately, how well they are able to collaborate will depend on the sophistication of both professionals and their willingness to understand the philosophical differences that permeate their professions. "It varies with the lawyers [and judges] you're dealing with," Faerstein said. "There is a huge range."
Nevertheless, Faerstein said he urges psychiatric experts to take the time to clearly explain to the retaining lawyers the limitations of their opinions and the scope of their expertise. "Don't give opinions that you don't believe in just to please the lawyer," he said. "Don't go beyond the range of your expertise and opine things you can't possibly support. Sometimes [lawyers] want you to predict the future…[or] they ask for opinions about things about which you may not be able to give an opinion that…[reaches] the level of reasonable medical certainty. You need to be able to say 'I can't answer that question or I can't give you that opinion.'"
Jonas Rappeport, M.D., a forensic psychiatrist based in the Baltimore area who has taught at both the University of Maryland and Johns Hopkins University medical schools, is one of the founders of the American Academy of Psychiatry and the Law. He agrees that, for forensic psychiatrists, there is a built-in pressure created by goals that the lawyers bring to the legal process, pressure that can become hazardous for the testifying psychiatrists.
"The lawyer wants to win his case at almost any cost," Rappeport said. "Some lawyers basically want to see that justice prevails, but for the most part they want to win their case. That's their idea of justice. They believe in the case, whether it's civil or criminal, and so they want the expert to give them the opinion that helps them. And this puts a tremendous demand on the expert, and it can become a slippery slope."
Avoiding the natural predilection to want to please, Rappeport said, is one of the most important steps forensic psychiatrists can take in making sure their relationship with the lawyer remains professional. This means that the pressure to conform an opinion to the needs of a particular civil or criminal case must be resisted, even if that resistance means the attorney will look elsewhere for expert advice.
Rappeport also said that some of the stresses between lawyers and psychiatric experts have uncontrollable root causes and these just can't be fixed. For example, the legal system is, by its nature, an adversarial rather than a collaborative system. Additionally, he believes that certain psychiatric problems are difficult for laypeople to understand-no matter how well they are explained.
"I have increasingly had the conviction that many lawyers don't believe what we say," Rappeport said, adding that they're no different than many judges and jurors. "With the public's attitude that if you can walk, talk and chew gum at the same time then you mustn't be mentally ill, we've failed. [And we haven't failed] because of the law, or because we [psychiatrists] haven't worked hard enough. I think it's an impossible battle to convince people how mental illness affects individuals."
Nevertheless, Rappeport does not advocate giving up in the face of that skepticism. "My basic goal is to have a firm opinion that I believe in, then to try to convey that to the lawyer and then the judge or jury with all the communication talents that are available to me."
Phillip J. Resnick, M.D., director of the division of forensic psychiatry at Case Western Reserve University School of Medicine in Cleveland, says he has fewer complaints than most about his relationships with lawyers. He said that maintaining the lines of communication with the lawyer is imperative to assure that both professionals are properly prepared. Without this collaboration, cross-examination can turn into a "blood sport," as the opposing counsel decimates the psychiatric expert on the stand.
"Good lawyers are going to allow an expert to look good to enhance the expert's credibility," Resnick said. "They're trying to showcase the expert. I have certainly [worked with] lawyers who were ill- prepared on occasion, but overall I really don't have a lot of criticisms with lawyers."
Resnick is careful to recognize the different role each person plays in the process. "It's the lawyer's case to win or lose so it's the lawyer's task to prepare the witnesses. When I teach [how to be] an effective expert witness to psychiatrists, I remind them that one study showed that 80% of jurors make up their minds after opening statements and do not change it. Psychiatrists who have the illusion that they can win or lose a case are simply suffering from grandiosity."
One of the first warning signs for a psychiatric expert can occur with the first phone call from a lawyer, says Douglas Mossman, M.D. Mossman teaches at both Wright State University School of Medicine in Dayton, Ohio, as the director of the division of forensic psychiatry, and at University of Dayton School of Law on its adjunct faculty. Agreeing that any number of conflicts can arise, Mossman said the most common one is when the attorney says, as early as the initial telephone call, "'I'm looking for a doctor who will say that…' and then they go on to fill in what it is they want the psychiatrist to say."
According to Mossman, it is important for forensic psychiatrists to clarify how they can appropriately help a case. Nevertheless, the initial interchange can give the expert a "glimpse into what the attorney's hopes for the consultation are, and also a glimpse into the degree to which an attorney is concerned about getting something that will help his case as opposed to something that will represent an objective view of the situation."
The implications for psychiatric experts who cross the line by providing false or inaccurate testimony can be severe, said Donald Palmisano, M.D., J.D. Palmisano, a surgeon and a lawyer in New Orleans, is a member of the executive committee of the American Medical Association's board of trustees. The AMA, as well as a majority of states' medical regulatory boards, considers expert testimony the practice of medicine, making it subject to peer review and discipline if there are allegations of wrongdoing. In fact, Vicary was placed on three years probation by the California licensing board for his role in the Menendez case. Therefore, giving in to lawyers' needs rather than stating an honest opinion is both dishonorable and a severe personal hazard.
Brandt Caudill, J.D., a partner with Callahan, McCune & Willis in Tustin, Calif., has represented mental health professionals in proceedings that include medical malpractice and disciplinary and licensing proceedings for two decades. His practice requires that he constantly retain forensic experts, most of whom testify concerning the conduct of other practitioners in the same field.
Caudill feels the tension with his experts, too, saying there is a collision of authority figures. "You have two different individuals, each of whom may be used to being an authority figure, and having [their] opinions accepted as being meritorious, but those opinions may not coincide. A psychiatrist may be telling a lawyer something the lawyer doesn't want to hear…On the other end a psychiatrist, who may be used to patients accepting things that are said with relatively unquestioning attitudes, may be kind of shocked to hear that a lawyer or the legal system may not accept [his opinion]."
Key issues for Caudill are preparation and open disclosure by both lawyers and psychiatrists. He concedes that attorneys don't often take the time to thoroughly prepare experts. Although not a frequent occurrence, Caudill has had cases compromised by a psychiatric expert who failed to do his homework or make full disclosure of closet skeletons. "When a psychiatrist is going through a nasty divorce," Caudill said, as an example, "it's something a lawyer has to know before retaining that psychiatrist as an expert in a family law case." In addition, psychiatrists should keep at least some record of their testimony in other cases to avoid the embarrassment of having a transcript prove they expressed an opposite opinion in another similar case.
While Caudill acknowledges that it is always "his case to win or lose," he also believes this sentiment undermines the collaborative element that must exist between expert and attorney.
"[That statement] is cavalier to the extent that it doesn't acknowledge that there is a professional, ethical responsibility upon taking an assignment to do your best as an expert in your field to render an honest opinion," Caudill said. "[Psychiatric experts] don't have an obligation to distort the facts or the truth, but they do have an obligation to do their level best to present their psychiatric opinions in a competent manner. And if someone is slacking off because they figure the lawyer will bail them out if they shoot themselves in the foot, that's a disservice to the client who is the ultimate recipient of the expert witness' services."