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Balancing Life and Practice

Ten Ways to Torpedo Your Expert



lexisONE
Oct. 2003


Few expert witnesses look forward to the stress of cross-examination. Few attorneys relish the thought of their expert under fire either; most have witnessed an expert's performance disintegrate under the heat of adversarial provocation. It's disheartening to both the expert and the attorney to discover that during cross-examination, the place where the "rubber meets the road" in terms of the expert's credibility, the expert has a flat tire.

It's even more distressing, though, when the very attorney who sought out the expert for his or her knowledge, expertise and opinion, engages in behavior that makes a very difficult task — explaining complicated or abstract information in simple terms — virtually impossible. Let's take a look at ten things that an attorney can unwittingly do to torpedo a mental health expert, and the things to do instead.


About the Author



Dr. Joni Johnston is President and CEO of WorkRelationships, a training and consulting firm that specializes in corporate compliance training and expert witness/trail consulting in employment litigation. She can be reached at jonij@workrelationships.com

Sabotaging strategy #1: Hire a biased expert.
Bias is probably the biggest challenge to an expert's credibility. In my experience, it works one of two ways; either the attorney uses a misguided bias in selecting his or her expert, or the expert is biased in his or her presentation. Either way, you lose.

With regards to the former, one of the most common biases in expert witness selection is the belief that the most impressively credentialed expert is always the best witness. In reality, the ivory tower academic who looks good on paper can wind up boring the jury to tears. Or worse, come across as arrogant or unfeeling. I once witnessed a defense psychiatrist infuriate a jury by intellectually dissecting an emotionally distraught plaintiff as if she were a bug in a biology lab. I believe his unfeeling demeanor did more harm to the defense than any of the plaintiff's coexisting life stressors.

With regards to the biased expert, two common pitfalls are the use of treating clinicians and the hiring of the one-sided testifier. A treating clinician relies on self-reported information from his or her patient. That's very different from someone whose mission is to find corroborating or contradictory evidence in the total breadth of available data. A treating clinician should only be a fact witness, basing his or her testimony solely on a report of what s/he did, thought, and documented during therapy.

Problems with the one-sided testifier are obvious. The expert who focuses exclusively on plaintiff or defense work is vulnerable to challenges for bias. Worse yet, such an expert may have become an advocate, whose agenda will be obvious to the jury.

Sabotaging Strategy 2: Don't check out your sources.
Rulings in Daubert v. Merrell Dow and subsequent cases have clarified and tightened the rules regarding expert testimony. This makes it even more critical to check your mental health expert's credentials, call references, and elicit the data underlying their opinion about the matters at hand.

It also makes it more likely your opposing counsel will be checking out your expert. Actively inquire about potential skeletons in your expert's closet; for example, ask each candidate whether s/he has ever been tendered as an expert but failed to qualify or whether the court has failed to recognize the person as an expert.

Sabotaging Strategy #3: Put off your decision as long as possible.
How many attorneys have scrambled around at the last minute, anxiously racing to beat an impending designation deadline that had been set months ago? Procrastination over key tasks will only mentally anguish your expert and increase the chances of errors and omissions.

It may also unnecessarily reduce his or her usefulness. The sooner the expert is "on the case," the quicker they become familiar with critical facts. Not only can your expert give you an objective and detailed analysis of both the strengths and the weaknesses you face, you reduce the risk of finding yourself in the embarrassing position of discovering a week before trial that the expert you named six months ago has opinions that do not help or are even adverse to your position.

Hire the expert before discovery ends. The expert's involvement during discovery is critical to the development of facts in the case. Hiring the expert after discovery limits the expert's ability to assist counsel in obtaining important evidence.

Sabotaging Strategy #4: Screen out or omit information.
Never feed your expert selective information that screens out information that may be adverse to your position. Be sure to alert the witness to any new information that comes in. Otherwise, the other side might present information during the deposition that causes your expert to change or modify a key position.

An ethical expert is not motivated to run up your bill unnecessarily; s/he is concerned about having all required information, being kept informed about developments that may effect them, and having access to you. By withholding facts or materials you think aren't relevant or may not advance your case, you run the risk of allowing your expert to be ambushed, surprised, and embarrassed. You also lose the opportunity to proactively minimize or put problematic issues in perspective.

Sabotaging Strategy #5: Inappropriately limit the scope of your expert's work.
I'm often amazed at how often attorneys who hire me to conduct an evaluation of their client never think to seek my advice in examination of the opposition's expert. A good expert can help you draft interrogatories and prepare questions to ask at your depositions of your opponent's experts. While most mental health experts are both qualified and ethical, I've read reports written by experts who lacked the credentials to administer the psychological tests they had used, whose diagnosis was not backed up by symptoms, and whose opinion was based on poorly validated assessment instruments.

A more damaging way to torpedo your expert is to insist that s/he do an abbreviated assessment. Budget concerns are always a consideration in litigation, but if you can't afford to allow the expert to do the job, you may be better off not hiring the expert. Here's an example of what can happen: in United States v. Mazzeo, a psychiatrist's testimony regarding a defendant's allegedly false confession was excluded because he did not administer any of the available tests designed to measure the extent to which a person is likely to make false confession and had only interviewed the defendant for only 1 hour in person and 20 minutes on the phone.

Sabotaging Strategy #6: Try to control your expert's opinion.
Help your expert on the stand. Protect his or her credibility by giving up honest points even if they are adverse. Stay within the expert's area of expertise. Keep the testimony within his or her area of knowledge. Stick to the strong theories in the case, and do not pursue theories that cannot be substantiated by the facts. Weak theories may tend to detract from the strong ones, and unsubstantiated opinions will detract from the expert's credibility

No matter how tempting, don't try to push an expert to adopt opinions or take positions the expert is not comfortable with or knowledgeable about. If you ask the expert witness to stretch opinions beyond the analysis, the stand will be a very uncomfortable place.

Sabotaging Strategy #7: Wait for the opposition to bring weak points in your expert's report
It is rare to have a lawsuit where there are not some facts adverse to your position. Bring out the weak points in your expert's testimony in direct exam. The opposition is sure to bring up these weaknesses in its cross examination. By beating them to the punch you show that your mental health expert was aware of these weaknesses and has considered them in forming his or her opinions. It gives your expert a chance to explain their significance and to put them in perspective.

For instance, suppose your client had entered therapy while going through a nasty divorce six months before being wrongfully terminated. Better for the expert to discuss the cumulative impact of life stressors and the timeline of symptomatology than for your opponent to surprise the jury by having his or her expert elaborate at length on the agony of divorce.

Sabotaging Strategy #8: Don't prepare your expert for testimony.
Prepare your expert for trial. Do not try to "wing it," even when working with an expert with whom you are familiar. Every case is different, and every case has its problems. It will cause credibility problems if the expert does not understand the purpose of your questions

Put your expert in charge of his or her testimony. Always review the areas of inquiry and questions you expect from the other side and have your experts think about possible questions and responses. During cross-examination, your expert will be asked how his or her opinions were formed. Simulated cross-examination will generally reveal potential weaknesses in an expert witness.

Reiterate the importance of having data to back up their opinions. It also doesn't hurt to remind the expert to stay within the limits of his or her expertise. It is important he or she not be afraid to say, "I don't know." Some experts have a tendency to exaggerate the strengths of a case. Assure them that it is often more valuable that they point out any weaknesses and voice more conservative opinions.

Sabotaging Strategy #9: Don't know what you're looking for.
Before testifying, be clear with your expert about the legal issues in the areas in which you want the expert to offer an opinion. If the expert is to be deposed, it is probably helpful to meet ahead of time and review the areas and opinions that one is seeking from the expert. Remember that there is a great deal of variation of how experts arrive at their opinions. In some cases, the evidence of a causal connection may be nothing more than the expert stating information she or he heard from an individual such as, "when I got into my car, I started feeling really anxious and could not drive which was the result of my having that really bad automobile accident a couple of years ago."

  • Establish that the plaintiff sought no psychiatric counseling until referred by his or her attorney.
  • Strategy #10: Learn nothing about your expert's profession.
    The most valuable mental health expert understands how his or her testimony fits into case law and your trial themes. You shouldn't expert your expert to be an attorney, but you should expect a working knowledge of the legal issues at hand. The reverse is also true; to get the most out of your mental health expert requires that you have at least a basic understanding of how mental illnesses are diagnosed, what psychological testing can and cannot do, and how psychological theory and practice fit into your legal parameters.

    For example, in the evaluation of emotional distress, a mental health expert should be able to:

  • Evaluate if the opposing expert's diagnosis is substantiated by the diagnostic criteria and/or facts;

  • Evaluate the present level (or absence) of absence of emotional distress;

  • Evaluate the influence of other premorbid or postmorbid stressors that may have caused, contributed to, or exacerbated the plaintiff's mental condition;

  • Evaluate and detect malingering or the exaggeration or duration of symptoms;

  • Provide guidance on anticipated treatment time, outcome and costs.
  • The Bottom Line
    More and more lawyers are calling in experts to testify about issues that formerly might have been left up to a jury. In particular, psychiatrists and psychologists are being used more frequently to determine the extent of emotional damage for which awards are sought in civil trials. That means that your mental health expert can make or break your case.

    Help your expert help you. Fredrich Nietzsche once said, "All credibility, all good conscience, all evidence of truth come only from the senses." Supporting your expert's credibility requires careful qualification, early use, and careful preparation. It also requires common sense; putting yourself in the expert's shoes and taking the necessary steps to ensure that she can formulate, and communicate, a well-thought-out and well-researched opinion. In the final analysis, how you treat your expert is how your jury will, too.

    Copyright 2003 Joni Johnston

      
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