For this interview, David Becker, APA Books Development Editor, interviewed Drs. Stan Brodsky, Professor in the Department of Psychology at the University of Alabama, and Tom Gutheil, Professor of Psychiatry in the Department of Psychiatry at Beth Israel-Deaconess Medical Center.
Note: The opinions expressed in this interview are those of the authors and should not be taken to represent the official views or policies of the American Psychological Association.
Stanley Brodsky and Thomas Gutheil are renowned forensic clinicians who have written about and taught psychologists and psychiatrists the ins and outs of expert testimony.
Through their many workshops and publications, they have given expert witnesses the confidence and skill to overcome numerous challenges in a courtroom environment, including intense cross-examination. In The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court, Second Edition, they offer advice on how to become expert expert witnesses based on scientific knowledge, professional practice, and their own experiences.
Dr. Brodsky has also written other guides for expert witnesses, including Testifying in Court: Guidelines and Maxims for the Expert Witness, Second Edition (2013), a companion to The Expert Expert Witness, and Coping With Cross-Examination and Other Pathways to Effective Testimony (2004), as well as other books, such as Therapy With Coerced and Reluctant Clients (2011). Dr. Gutheil has authored or coauthored Practical Approaches to Forensic Mental Health Testimony, The Psychiatrist as Expert Witness, The Psychiatrist in Court: A Survival Guide, and his 2015 book Six Psychiatric Cases for Non-Psychiatrists.
What are the common and uncommon errors made by expert witnesses when they testify?
Tom: My nominee for the commonest error is the reluctance to throw away a throwaway question, rather than putting out a string of defensive qualifiers. Can psychiatrists disagree? Yes. Can bad outcomes occur even with the best care? Yes. Can all suicides be prevented? No. Credibility is enhanced by acknowledging the obvious.
Stan: When I work with beginning psychotherapists, usually 2nd year PhD students, I seek to stop them from piggybacking their responses. That is, they make a good statement, then explain it, and then explain some more, so that the power of the original comment is lost. The same thing applies to testifying experts. A good, brief answer that goes to the heart of the question often closes down the line of inquiry.
It might be worthwhile to note that uncommon errors can be catastrophically bad. A local Assistant D.A. with whom I work out daily told me about an out-of-town expert witness who was being grilled severely but appropriately about gaps in his assessment. After this had gone on for while, the frustrated, exasperated expert blurted out to the cross-examining attorney, “Why don’t you go f – – – yourself!” The judge was not pleased, and ordered a police officer to stand immediately behind the expert, and told the expert that one more outburst would lead to him being held in contempt and led off to jail. The jury disregarded everything the expert said and found for the other side.
What should experts do when an attorney uncovers some error or omission in their assessments?
Stan: This is a time when a core of solid feelings of professional worth needs to come to the surface. There will be always be a time when experienced and good experts miss something, especially in complex cases with extensive records. Good experts lose by getting defensive. If there is indeed something the experts have missed (and they should never automatically take the word of opposing counsel that they have missed it), then a straightforward and unadorned admission is in order.
Tom: One of the hardest lessons to teach trainees is the idea that “I don’t know” is a perfectly good answer to a number of questions.
Stan: I don’t know about that. Actually, I agree. Sometimes saying I don’t know galvanizes the attention of the courtroom. It reflects good boundaries and humility.
When attorneys are downright nasty and insulting, how should the ethical and effective expert reply?
Stan: I see such nastiness as an opportunity for experts to show how nice and likeable they can be. When attorneys raise their voices, good experts lower theirs. When attorneys get sarcastic, effective experts become earnest. When attorneys become aggressive, good experts don’t bite, and extend a soothing and calming quality to their responses.
Tom: If the attorney is screaming at you, and you are calm, you are the one with credibility.
What do you really like and dislike in expert testimony?
Tom: I like the challenge of the two translations: taking the psychiatric clinical issues and translating them into the legal criteria; and then translating that result into a form that the jury will understand. I don’t like having my testimony or my writings misquoted and distorted, but I realize fully that those events come with the territory.
Stan: Positive psychology has emphasized the concept of being in the zone, when there is an easy flow of ideas and feelings. I like I watching experts in the zone and like it when I am in the zone. Some attorneys are very skilled at creating enough static so that one cannot have that ease of being both oneself and a good expert. That’s their job. Testimony works best when one does not take it personally and seeks to be polite, responsive, and nondefensive even when the strong wind is blowing in your face.
Is there some mantra or thought to say to self before going onto the stand?
Tom: My favorite is saying to myself, “My job is to protect the truth of my opinion from both attorneys. My retaining attorney—at least at some level—would like me to slant the testimony in favor of his side. The opposing attorney, of course, wants to discredit me and impeach my opinion.” The challenge, of course, is to walk the path between, sticking to the truth wherever the chips may fall.
Stan: Every now and then, I give retaining counsel an answer they have not wanted. It is a good thing, because it reflects integrity. When counsel and I meet in advance, there is less likelihood of this happening because they try out their questions and learn what I have to say.