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Forensic Psychiatrist as a Legal Consultant
By Sanjay Adhia, M.D.
A forensic consultant can bring insight early to a case.
The Non-Disclosed Consulting Expert: Attorney’s Secret Weapon
Retaining a forensic psychiatrist or psychologist as a legal consultant can be a powerful resource for an attorney.
A consulting expert will offer observations about psychiatric issues in a case and any “red flags” indicating deeper inquiry.
Consult Early On
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 can impact 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?
This is a common question from attorneys, for good reason. You don’t want to start racking up hours on a case that might have problems from the start. Plaintiff or defense, forewarned is forearmed.
Flags
Are you relying on your client’s / or plaintiff’s report of relevant mental health information? Are they—or you—diagnosing? This speaks to the end game: what raises doubt with a jury or is convincing and credible?
What if the litigant’s mental status raises a red flag?
For example, I have heard from attorneys about their clients’ erratic behavior or a client telling their “side of the story” in which the client is victimized but is inconsistent with other facts of the case.
Additionally, accusations by one party that events unfolded because someone (other than themself) is mentally ill, can be worth an experienced look.
Plausible Validity
The attorney may want to consult a psychiatrist to evaluate those reports for consistency and plausible validity. Self-diagnosis by Plaintiffs or Defendants, for example, is common and problematic, as it can lead to a claim of damages that is not easily defended in Court or settlement negotiations.
Attorney-Client Privilege
The consulting expert may have an attorney-client privilege that a disclosed expert witness does not (the attorney is the client.) If you, the attorney, determine the privilege exists, then protection from discovery enables a less restrictive exchange of information between you and the forensic consultant.[1]Critique of Opposing Expert’s Reports and Opinions
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 a second set of qualified eyes on a case. The unique perspective of a legal consultant with relevant expertise may reveal information an attorney could otherwise overlook.- the alleged facts of the case suggest a new line of inquiry.
- medical records, reviewed in detail, can introduce an alternative narrative to one person’s version of events.
- Dissecting alternative expert reports for the attorney, highlighting weaknesses and strengths.
- Determine if an opposing expert’s opinions have exceeded the limits of their credentials and qualifications.
- Review opposing expert testimony for clues about the case that might otherwise be overlooked.
Deposition and Trial Strategy: Maximize Direct and Cross-Examination
One of the consultant’s most valuable contributions is developing cross-examination questions to reveal flaws, if they exist, in the opposing expert’s opinions or credentials. For example:
- “Dr. X, you are not a psychiatrist, is that correct? [to a psychologist]
- “Dr. Y, you are not a [appropriate specialist], is that correct?”
- “Do you have medical training?”
- “Are you a licensed provider? In what field and what state?”
- “Can you prescribe medication?”
- “In your report, you rely in part on your review of pharmacy notes, is that true?”
- “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 independent medical examination (IME) and produce an expert report (not an 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.
Consultant is Disclosed as a Testifying Expert Witness
If the expert consultant is later disclosed as an expert witness, are the IME and report issued as a consultant now considered discoverable? Might there be a way for the parties to agree to the admissibility of a consultant’s opinions? This is a conversation the expert and attorney should have before moving forward to disclose the consultant in an alternative capacity.
As a consultant, there is overlap in the focus of the forensic psychiatrist. For example, testimony is structure for the expert to explain observations they may have already discussed with the attorney.
- Opine about the plaintiff or defendant and their state of mind.
- Educate the fact-finder on psychiatric subject matters such as emotional distress and medical diagnoses like depression, PTSD or anxiety disorders. (Fact Witness)
- Findings and opinions based on material obtained by the expert including an IME (see reference to agreement above.)
Not Crossing the Line
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 in winning their case. This is also true of the consultant expert.
Rules of evidence apply to the role and restrictions on an expert witness. Attorney-client privilege may not apply, and communications might be subject to discovery.
Attorneys are responsible for knowing the federal and state laws on these issues so that no barriers are crossed. 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.
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 that 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 otherwise. 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.
Endnotes:
- I am not an attorney and I defer to counsel any legal questions about what is or is not subject to attorney-client privilege or discovery. Any statements in this article on that topic are secondary and not meant to be legally conclusory.
- Ibid.
Here are a few interesting articles:
“Expert Witness Disclosure: The Who, What, When, and How of Avoiding Exclusion.” Ryskamp, ExpertInstitute, Apr. 2022
What are the differences between an expert witness and a consulting expert (Forensis Group Blog)
Expert Witness Disclosure Rules: Consulting vs. Testifying Experts (Funk, ExpertInstitute)
