The Mental Health Professional in Court: A Survival GuideRichard Balon, MD
Wayne State University, Detroit, MI, USA
By Thomas G. Gutheil and Eric Y. Drogin. Arlington, VA: American Psychiatric Publishing, Inc.; 2013; ISBN 978-1-585-624386; pp 129; $59 (paperback).
Note: This book is a revised and expanded version of Dr. Gutheil’s 1998 book, The Psychiatrist in Court: A Survival Guide,1 which I reviewed that same year.2
Many, if not all, mental health professionals may be asked to appear in court. As the authors of this slender volume, Drs. Gutheil and Drogin, say this experience “is usually frightening, dismaying, or both” (p xiii). They later add, “For most mental health practitioners, the prospect of going to court—under any circumstances, at any time, for any reason—is about as welcome an idea as dentistry without anesthesia” (p 1). They present us with this book to help those called to court to “survive that experience” (p xiii). Both authors are experts in the field: Dr. Gutheil is a well-known forensic psychiatrist and Dr. Drogin is an experienced lawyer—both authors are Harvard Medical School faculty. They acknowledge that although they will not be able to turn the reader into a court lover, they may decrease her or his terror as “knowledge is not only power but also an antidote to unreasoning fear” (xiii).
The book consists of 11 chapters and 3 Appendices. The chapters sequentially address the entire process of mental health professionals dealing with the court system, from being asked to appear in court to the aftermath of litigation. Chapter 1, “Introduction: ‘What? Me? Go to court?,’” describes reasons why a psychiatrist may be called to the court, from being sued to being a fact or an expert witness. The authors also list common pitfalls of the treating psychotherapist in court, such as the role of conflict of interest, difficulty in determining the standard of care, hindsight bias, goal-directed testimony and political activism, and difficulties with the subjective-objective distinction. In discussing the distinction between a fact witness—the focus of this book—and an expert witness, the authors point out that fact witnesses may be called as observers, treaters, plaintiffs, or defendants (p 9). The second chapter, “Why is this happening?,” starts with a reminder that “The mere fact that you have been sued does not mean that you did anything wrong” (p 11). The authors also acknowledge that although the malpractice suit may not even be “about you,” it is difficult to “absorb such advice—let’s face it; few of life’s experiences will ever feel as personal as this” (p 11). The chapter focuses on psychology of 3 major litigations: malpractice litigation, licensing board complaints, and ethics complaints. In discussing the licensing board complaints, the authors urge the reader to “…not even consider responding to the complaint or attending a hearing without experienced legal counsel.” Chapter 3, “‘How did I get here?’: the path to litigation,” briefly summarizes some of the most common legal situations that trigger malpractice suits—eg, suicide, boundary violations and sexual misconduct, breaches of confidentiality, and treatment issues (too much treatment, too little treatment, wrong treatment). The next chapter, “‘What is motivating everyone?,’” discusses the motives of the many different persons in the courtroom: the defendant, plaintiff, plaintiff’s counsel, opposing counsel’s expert, defense counsel, and defense counsel’s expert.
Chapter 5, “Why is this taking so long?,” reminds us that the litigation process may take a long time and explains the mechanisms of delay, including depositions, the court’s existing docket of cases, a postponement called continuance, and settlement offers (one should beware of them and carefully review them). Chapter 6, “‘Now do I get my say?’ Interrogatories, depositions and how to survive them,” starts again with a strong warning not to even think of responding to interrogatories without defense counsel by one’s side (p 31). The discussion of the mechanics and content of the deposition includes practical advice, including, “honoring the rule of austerity, there are five basic answers” when being deposed: yes, no, I don’t know, I don’t recall, and a brief narrative (p 34). During the narrative, clinicians should make every effort to ensure that her or his answer is not quoted out of context (p 34). This can be done by incorporating the question into the answer, no matter how dull it may sound. Suggestions on “Preserving the court reporter’s sanity” (p 35) include speaking loudly, speaking in turn, speaking slower than usual, spelling out technical terms, avoiding banter, and providing the court recorder a business card. The chapter explains objections, errors and pitfalls, and common attorney deposition tactics (eg, “let’s have a conversation,” “changing up” the order, getting one to “guess,” “conversational” interjections, “personal” and “repetitive” questions), where the deposition should occur, and that everything should be carefully reviewed before signing the transcript. The following chapter, “‘Where are we?’: the foreign territory of the courtroom,” suggests learning about legal issues on a regular basis from a “tame” or friendly attorney. The chapter also discusses whether one needs a personal attorney over and above the one supplied by an insurance company (usually not, if you are full-time private practitioner, but maybe if you work for an institution or agency).
Chapter 8, “‘Who are all these people?,’” further discusses the litigation process in the courtroom and some basic rules of the process. It also reviews subpoenas and privileges. Chapter 9, “‘Am I going to win this thing?’: the trial itself,” explains various terms (statutory law, common law, adjudication, burden of proof) and goes through the entire process of litigation step-by-step. It emphasizes preparation (the “six Ps” of trial preparation: preparation, planning, practice, pretrial conference, pitfalls, and presentation), discusses how to prepare one’s attorney, how to dress for the courtroom (“Dress unremarkably, they notice the testimony” [p 82]), the difference between deposition and trial language, and how to testify (eg, not using “never” and “always”). The following chapter, “‘Do I still get to have a life?’: self-care during litigation,” emphasizes that the clinician needs to take care of him or herself promote viability as a legal client, litigant, and functional witness, and to take care of sleep, eating habits, and exercise (p 92). The chapter also mentions that the case should be discussed (if discussed) in safe places and provides tips on how to manage one’s practice during litigation. The last chapter, ‘“Where do I go from here?’: the aftermath of litigation,” explains there really is life after litigation: “Life truly begins anew when the last deposition has been taken, the last hearing has been conducted, and the last order has been issued” (p 96).
Appendix I goes over the civil litigation process, explaining its phases in definitions and summarizing with graphics. Appendix II is a glossary of legal terms. Finally, Appendix III is a list of recommended readings and online support.
In the Preface to the book, the authors outlined 3 basic principles that “shaped” their approach to this book: 1) it is written in an informal and lighthearted tone “for easier mental access and for a soothing, supportive effect that is deliberately intended to allay your anxiety; 2) it consistently focuses on practical, rather than theoretical issues; and, 3) its contents are brief enough so that you could read it all, if pressed, between the arrival of the subpoena and your pending appearance in court” (p xiv). The authors followed these 3 principles well. The authors also provide key points and references for each chapter, making the text more informative and easier to remember. The chapters are peppered with brief good examples from everyday litigation practice. I missed only one piece of advice or explanation; what to do with a subpoena issued just by a lawyer and not signed by the court.
At times, the text is very close to the previous book.1 However, I do not see it as anything problematic, as some advice is timeless. The older version was published 15 years ago and has probably not been available to the newer generations of those fearing to be called to appear in court (almost all of us). Those who may have read it should be reminded that repetitio est mater studiorum (repetition is the mother of learning) and that reading the newer version may be useful. As suggested by the authors, it could be read almost in 1 sitting, and I suggest that it may serve as an easy reference text during any “non-expert” appearance in the court. It should be in every mental health practitioner’s library.
- Gutheil TG. The psychiatrist in court. A survival guide. American Psychiatric Press, Inc.: Washington, DC; 1998.
- Balon R. The psychiatrist in the court. A survival guide. Ann Clin Psychiatry. 1998;10:95–97.
Annals of Clinical Psychiatry ©2013 Frontline Medical Communications Inc.