Developing a Forensic Practice

Operations and Ethics for Experts

William H. Reid

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136273414
• Edition: 1
• Topic: Psychology
• Subtopic: Clinical Psychology
• Index: Psychology

Developing a forensic practice can be confusing and intimidating. Dr. William Reid, a highly experienced forensic psychiatrist, has written a practical, straightforward guide for clinicians interested in doing it right and increasing their opportunities for a successful transition to forensic work. This book, which will be of interest to many attorneys as well, provides straightforward details, along with many case examples, of lawyer-expert communications and relationships, case assessment, record review, evaluations, reports, deposition and trial testimony, fees and billing, office operations, marketing, liability, and professional ethics. A bonus chapter by a successful malpractice attorney gives a unique and valuable "lawyer's perspective" on the content and mental health experts in general. The huge appendix provides over 40 highly useful examples of common office forms, letters, reports, and affidavits.

Any mental health professional who currently practices, or wants to practice, at the interface of mental health and the law will find this an indispensible practice resource.

1
Getting Started

Most of this book assumes that the reader has (or is actively seeking) a terminal degree in a clinical mental health specialty (psychology Ph.D./Psy.D./Ed.D., M.D./D.O. with psychiatry residency, M.S.W., R.N./M.S.N./R.N.-P.) and wants to learn about private consultation at the interface of that specialty and the law. (I generally use the terms “forensic professional” or “forensic clinician” for efficiency’s sake, including others as applicable.) Many of the principles and procedures also apply to employed clinicians, including those who carry out consultations separate from their employment (such as “moonlighting”), those who perform forensic services through agency or facility contracts, and those who perform forensic services as employees of agencies or facilities.

Much of this book assumes that the reader will be retained most of the time by an attorney in a contested (“adversarial”) proceeding. Experts are sometimes retained directly by courts or agencies for other purposes, but it is a common misconception that experts are usually “friends of the court” (a misuse of that phrase as well).

Readers in academic or agency settings may notice differences between the professional viewpoints implied here and those in their own settings, such as (but not limited to) a focus on work done as part of retention by an attorney and one’s relationships with retaining attorneys. This should not be construed as suggesting any significant differences in duty or ethics.

My references to lawyers may sound stilted (e.g., repetitive use of “the lawyer who retained you” or “the retaining entity”). That’s my inartful way of avoiding any implication that the attorney who retains you is “your” lawyer. Expert witnesses should not be direct advocates for the side on which they work¹ but, rather, advocate articulately for the opinions they legitimately form if asked to do so. Thus it is improper for an expert to refer to “my lawyer” when the lawyer actually represents his or her own client, not the expert.

Similarly, although I sometimes refer to “the opposing lawyer,” I actually mean “the lawyer for the party who opposes the client of the lawyer who has retained you.” I could have said that every time, but the printer would have run out of ink.

Before we go further, here are five postulates that can guide you to a career that is both successful and rewarding. We’ll discuss each of these postulates in various ways throughout this book; keep them in mind:

1. Practice well.
2. Understand the point of the legal exercise.
3. Be serious about ethics.
4. Quality begets quality.
5. Quality begets success.

You will have no trouble competing with forensic professionals who are poorly trained, lazy, sloppy, single-sided, “hired guns,” unethical, or just don’t get the point of the lawyer’s or court’s work.

Finally, courts and lawyers need experts with clinical expertise and some understanding of the legal process at hand, not quasi-attorneys or doctors who act like lawyers. Forensic mental health professionals are generally not, and should not act as, attorneys. Simply understand your clinical discipline and how it applies to the forensic arenas in which you work. If you happen to have a law degree in addition to your clinical credentials, note that the material in this book is completely unrelated to legal consultation or representation of legal clients. I strongly recommend that professionals with such dual credentials (M.D./J.D., Ph.D./J.D., R.N./J.D., etc.) refrain from mixing them in the same case.

Training and Credentials

Clinical training, experience, and certification (as relevant to the field of practice) are necessary and expected for every forensic medical/mental health expert. Your usefulness to lawyers, courts, and other entities almost always comes much more from your clinical expertise and experience than from your forensic background. As I have told countless high school, college, medical, and graduate students, one must first be (and want to be) a clinician, then consider working toward forensic goals, not the other way around.

Specifically forensic fellowships, post-docs, and internships can be valuable preparation for a forensic career but are not usually necessary for forensic practice. Many certifying bodies (such as the American Board of Psychiatry and Neurology [ABPN] and the American Psychological Association) require them in order to sit for subspecialty diplomate exams (see below).

Professionally accepted forensic subspecialty certifications include those of the American Psychological Association’s American Board of Professional Psychology (ABPP) and the ABPN. In my experience, “forensic” certification is a worthwhile pursuit and useful for practitioners who work in academic or administrative environments, but it is far less important than clinical certification when working with attorneys and courts.

There are other “certification” organizations and companies that market their “credentials” to various kinds of mental health professionals. One should investigate their claims and usefulness carefully before applying, since many (but not all) hold no particular influence in either clinical or forensic fields, often giving certificates and titles to those who merely take a simple test and pay a fee (sometimes even waiving the test). Some are outright “diploma mills” that should be avoided. Good lawyers quickly discover which are legitimate and which can be criticized if you list them on your curriculum vitae.

Continuing education courses and workshops in forensic practice can be valuable and efficient ways to increase and/or update one’s practice skills. Professionally recognized forensic organizations, such as the American Academy of Psychiatry and the Law (AAPL) and the American Academy of Forensic Sciences (AAFS), offer a variety of educational opportunities, usually at their annual or semiannual meetings. One in particular deserves special mention—the comprehensive forensic psychiatry course by Dr. Phillip Resnick and colleagues, sponsored by the AAPL and offered at AAPL and some American Psychiatric Association meetings. Most recognized national (and some state and regional) clinical organizations offer approved continuing education in forensic practice.

Participating in recognized forensic organizations is a good way to stay abreast of important professional information, learn of continuing education opportunities, keep in touch with colleagues, compare your procedures with those of other forensic practitioners, and remain aware of ethical issues and guidelines. Some professions, such as psychiatry and psychology, have active forensic organizations; others have forensic sections or interest groups within their national associations.

Your membership in a recognized professional organization is one sign to clients and courts that you are not some sort of isolated “maverick” practitioner and that you have adopted, at least by your membership, that organization’s code of ethics. Conversely, there are poorly recognized organizations that focus more on “guild” issues or superficial titles than professional education or scientific endeavor; in my opinion, many of them should be avoided.

Mentoring by someone you know to have excellent skills, ethics, and reputation is very helpful. Books and publications are great sources of information and reference, but are not sufficient for the knowledge and experience you need for practice.

I am often asked whether or not attending law school is helpful in forensic practice. I believe law school to be completely unnecessary for forensic practice, and it may be detrimental to some careers. Most M.D./J.D. and Ph.D./J.D. holders practice as either clinicians or lawyers. The combination seems reserved largely for academic settings and a few medical malpractice attorneys. Some R.N./J.D. and M.S.W./J.D. holders find careers in law firms or as legal consultants but not often, in my experience, as forensic experts (the practice discussed in this book). Forensic experts with law degrees need the imprimatur and credibility of their clinical professions as they communicate with judges and juries; a law degree may decrease some of that credibility (no offense to our legal brethren). If you decide to go to law school, do it because you want to be a lawyer, not because you think it will make you a better (or more sought-after) forensic clinician.

Reputation and Credibility

Get it. Keep it.

Have the requisite education, training, and experience. Do not misrepresent or “pad” your credentials. First, it’s dishonest. Second, lawyers who will question you often check out your background and know the answers to questions before they are asked.

Do quality work. Much of this book is devoted to showing you how to do quality forensic work. Your clinical work should be relevant and free of serious criticism as well.

Do ethical work. Don’t get into ethics trouble, and don’t do things that are likely to get you into ethics trouble. Be an example of ethical practice in both clinical and forensic work.

Continue to do clinical work. Much, perhaps most, of your forensic work rests on a foundation of current clinical expertise. This is critical for most kinds of malpractice consultation and testimony and important for many other forensic practices as well.

Don’t be a “hired gun” (or even look like one). Some of the public, including some lawyers and jurors, get their ideas about forensic experts from television and movies. That means they see dramas about experts who say whatever the lawyer wants, work as “advocates” for the retaining lawyer’s case, get paid flat fees to say something, or shade evaluation results to fit the case. Those people are not common, but they do exist. Do not be one of them. First, it’s dishonest. Second, nothing ruins a career faster than getting a reputation as a hired gun.

Have unblemished licenses and certifications. Your licensing board status and lots of other credentials information is easily available to lawyers and courts.

Guard against hospital or organization censure, such as privilege suspensions, expulsions, or termination for cause.

Avoid malpractice suits, especially if you consult in malpractice cases. No one is perfect, and a malpractice judgment can happen to anyone over a career, but more than one is difficult to explain in the best of circumstances.

Be completely honest in your testimony and reports. Your past testimony is easily available to attorneys, and your honesty and consistency will be scrutinized during trials and depositions.

Your nonprofessional pursuits can affect your forensic credibility. This includes damning items such as arrests and convictions, as well as seemingly less significant things like questionable websites, hobbies, and associates.

A clinician was discussing forensic careers in one of my workshops when the topic of websites arose. She mentioned her nonclinical website dedicated to an interest in witchcraft and the paranormal. She was proud of her reputation in that avocation, said it was quite separate from her mental health practice, and wondered if it might interfere with forensic referrals or credibility. We examined her website with that question in mind.

The website was “dark”—deep red in color, with ominous background music and drawings of satanic-appearing figures and symbols on the main page. It included a forum with comments from visitors, often followed by the clinician’s own comments or answers (which focused enthusiastically on wiccan topics, never mentioning that she was also a clinician). She offered a witchcraft-related music CD for sale.

Without knowing more about her clinical practices, I nevertheless suggested that the website and similar pursuits would indeed be a problem, since it could be easily found by lawyers and others and she would have to acknowledge it if asked. I asked her privately to think about what the website and activities might represent about her professional identity and her ability to work objectively with patients and forensic clients. I told her that she should at least disclose the website and related activities to anyone who wanted to retain her, and that it might indeed put off forensic clients and decrease referrals.

The clinician balked at those ideas, choosing to believe that her wiccan pursuits were kept separate from her clinical work and any forensic pursuits, and that they “shouldn’t make any difference.” Several years later, I learned that she had had both licensure and practice problems as a result of her unusual practices.

Lawyers communicate with each other about experts. They ask others for recommendations when they’re searching for experts. Once they have your name, they may ask others about you before calling. Those who depose or cross-examine you are likely to have researched your background to a greater or lesser extent.

Duties

Just as a clinician has certain duties to his or her patients or clients, forensic experts have duties that must be fulfilled in order to meet professional practice standards and, in some cases, legal requirements.

You have duties to the attorney or organization that retains you (referred to in this book as the “retaining entity”). He/she/it is entitled to know of any issues that may affect your ability to do the work for which you have been hired or which may occur at some future time (such as testifying). Those concerns include, but may not be limited to, conflict of interest (such as relationships with one of the parties, financial conflict, or strong personal feelings about the litigation or the parties), scheduling difficulty, past license problems or relevant lawsuits of your own, and inadequate knowledge, training, or experience. In most cases, you act as the attorney’s agent, within legal and ethical limits, but almost never as a direct advocate for any litigant.

Part of your duty to the retaining entity is to be accurate and objective. You should not offer, nor should ethical lawyers or other clients expect, opinions that lie by either commission or omission. In fact, an attorney’s learning things that go against the case can be as valuable to him or her as learning those that support it.

You have duties of honesty and objectivity to any court or other judicial or arbitrating body to which your opinions are offered. Your opinions and other comments may reach a judge or court in several ways: in a report, by affidavit or sworn statement, in deposition testimony, or in direct testimony at a hearing or trial. You are expected to articulate your opinions well and defend them convincingly, but you must be honest. Do not allow others, such as a retaining entity, to offer in your name opinions that have not been genuinely and properly rendered.

You have duties to the retaining entity’s client(s), including those of adequate qualifications, practice standards, and good faith. However, as already noted, you should not advocate directly for the litigant, nor should the litigant or any interested party be your patient.

You have a duty of honesty and good faith to the opposing entity. Being a “hired gun” may be the lawyer’s role, but it’s not yours.

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Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Preface
• 1 Getting Started
• 2 Vocabulary
• 3 Lawyer–Expert Relationships
• 4 Records and Record Review
• 5 Evaluations
• 6 Reports and Affidavits
• 7 Deposition and Trial Testimony
• 8 Fees and Billing
• 9 Ethics
• 10 Marketing
• 11 Your Office and Office Procedures
• 12 Liability in Forensic Practice
• 13 A Lawyer’s Perspective on Forensic Mental Health Experts
• Appendices: Forms, Letters, Reports, and More
• Index