Consulting with a non-disclosed expert.

Should you take a case? Plan strategy? A forensic psychiatrist or psychologist brings insight early in the case.

The Non-Disclosed Consulting Expert: Attorney’s Secret Weapon

A Forensic Psychiatrist or Psychologist, as a Legal Consultant

Retaining a forensic psychiatrist or psychologist as a legal consultant can be a powerful resource. A consulting expert will offer observations about psychiatric issues in a case and “Red flags” suggesting deeper inquiry.

A Powerful Resource

I would recommend attorneys retain a consulting expert early in their case if there is any suspicion psychiatric or psychological factors exist. A Consultant expert (vs. a disclosed Expert Witness) can provide crucial insight that impacts legal strategy and even outcomes.

Importantly, a consulting expert is not restrained by the arm’s length nature of a disclosed Expert Witness.

Does My Client Have a Case?

A common question I hear from attorneys is “Does my client have a case?”

Are you relying on your client’s own report of relevant mental health information?

Are they, or you, diagnosing?

What if their mental status raises for you a red flag? I have heard from attorneys about their clients’ erratic behavior or a “side of the story” in which they are victimized inconsistent with other facts of the case.

Acccusations by one party that events unfolded because someone (other than themself) is mentally ill, can be worth an experienced look.

Opposing Expert’s Reports and Opinions: Critique

When a Disclosed Expert Psychiatrist or Psychologist has issued a report or rendered deposition testimony, the consulting Forensic mental health specialist may be able to share opinions not limited by those Rules of Evidence that apply to an Expert Witness.^[2]

Benefits of a Second Set of Eyes

There is no substitute for providing a second set of eyes on a case. The unique perspective of someone with relevant Expertise may reveal information an attorney would otherwise overlook.

• Consider if the alleged “facts” of the case suggest a new line of inquiry.
• Review medical records. They may introduce an alternative narrative to one person’s version of the events.
• Dissect the report for the attorney, highlighting weaknesses and strengths.
• Determine if the o/c expert’s opinions have exceeded the limits of their credentials and qualifications.
• Review any o/c expert testimony for clues about the case that might otherwise be overlooked.
• Review the case to learn what o/c’s expert may have missed.

Deposition and Trial Strategy: Maximize Direct and Cross-Examination

A Consultant’s most valuable contribution is often developing cross-examination questions to reveal flaws, if they exist, in o/c’s expert’s opinions or credentials. For example:

1. “Dr. X, you are not a psychiatrist, is that correct? [to a psychologist]
2. “Dr. Y, you are not a [appropriate specialist], is that correct?”
3. “Do you have medical training?”
4. “Are you a licensed provider? In what field and what State?”
5. “Can you prescribe medication?”
6. “In your report you rely in part on your review of pharmacy notes, is that true?”
7. “Are you qualified to opine about medications?” “How?”

Consultant Becomes A Disclosed Expert Witness: Role, Services, and Transition

Attorneys might consider asking the expert-consultant to perform an IME (Independent Medical Exam) and produce an expert report (not Expert Witness report) so the attorney is better informed. As a consultant, an attorney should research if such findings are protected by attorney-client privilege with powerful benefits to trial strategy.

The question remains if the expert-consultant is later disclosed as an Expert Witness, are the IME and report considered discoverable Expert Witness opinion?  Might there be a way for the parties to agree to the admissibility of a consultant’s opinions?

Whether Consultant or Disclosed Expert Witness, the Forensic Psychiatrist may be able to render valuable testimony:

Opine about the plaintiff or defendant in particular.

• Educate the fact-finder on psychiatric subject matters such as Emotional Distress, diagnosed psychiatric conditions like Depression, PTSD or Anxiety Disorders—not surprising after a trauma.
• Findings and opinions based on material obtained by the Expert including an IME (see reference to agreement above.)
• State of mind of plaintiff or defendant.

Crossing the Line

Protections for a consulting-expert and limits for a disclosed Expert Witness require an attorney to ensure the line between what the Expert knows from being a consultant doesn’t infiltrate Expert opinion or testimony.

The Disclosed Expert Witness

There are times when an attorney will like to convert the consulting expert to a testifying expert witness.

Ethically, it is incumbent on an Expert Witness to be impartial and independent. The primary role is to provide an independent opinion and not necessarily to assist attorneys on winning their case.  Rules of Evidence apply to the role and restrictions on an Expert Witness.  As stated, attorney-client privilege may not apply, and communications might be subject to discovery. Attorneys are responsible for knowing the Federal and State law on this issue, so no barriers are crossed.

One Experience as a Consulting Expert

I was retained by a defense attorney who assists capital defendants. The attorney requested I perform a psychiatric evaluation to determine the current mental state of his client. He also asked me to inquire why his client would not accept a plea bargain and if there was any psychiatric reason for this. The attorney reported my input made a significant difference to his understanding of his client and the direction of the case.

Invaluable Information You Can Only Get From an Expert

A Forensic Psychiatrist or Psychologist brings invaluable experience and understanding to a case that cannot be obtained any other way. The earlier you engage a consulting-expert, the greater the lead-time to develop your client’s case and offer the most effective representation. Attorneys who retain the resources of a consulting-expert will find they have a leg-up over the other side.