Retaining a psychiatric expert: what attorneys should know

Psychiatric questions arise in criminal cases, civil litigation, employment disputes, professional licensing matters, and medical malpractice claims. When those questions become important to the case, the usefulness of an expert often depends on how clearly the assignment is defined at the outset.

A forensic psychiatric evaluation may address diagnosis, causation, functional impairment, competency, criminal responsibility, risk, fitness for duty, standard of care, or the relationship between psychiatric symptoms and alleged conduct. Each requires a somewhat different approach. Early consultation can help clarify the question, issues, and goals, identify the right expert, and determine what type of evaluation may be needed.

Define the Question the Expert Will Be Asked to Answer

A useful starting point is often the legal issue that requires psychiatric expertise.

In a civil case, counsel may need an opinion about whether an event caused or worsened a psychiatric condition, whether symptoms produce functional impairment, or whether other events provide competing explanations for the claimed injury.

A criminal matter may involve competency, criminal responsibility, psychosis, substance use, violence risk, or psychiatric information relevant to sentencing.

Employment and professional matters may raise questions about fitness, impairment, behavior in the workplace, or whether a psychiatric condition bears on a person's ability to perform professional duties safely.

The psychiatric question does not always need to be fully formulated before speaking with an expert. Early consultation can help counsel clarify the psychiatric questions at issue, determine which can be meaningfully addressed, and identify the information needed to evaluate them.

The scope may also evolve as additional records, testimony, or other information becomes available.

Forensic Experience Matters

Clinical psychiatry and forensic psychiatry overlap, but the work is different.

Clinical practice is primarily directed toward diagnosis and treatment. Forensic evaluation requires the psychiatrist to examine a psychiatric question in the context of a legal dispute. The process often includes extensive record review, collateral information, deposition testimony, consideration of competing explanations, and application of psychiatric findings to a specific legal standard.

That distinction becomes particularly important when the available evidence conflicts.

An examinee's recollection may differ from contemporaneous records. Family members or coworkers may describe behavior differently. Symptoms may have appeared before the event at issue or changed substantially afterward. Substance use, medications, medical illness, and other life events may also affect the clinical picture.

Those issues may be important to the forensic analysis and to how the conclusions are understood.

Psychiatrist or Psychologist?

Psychiatrists and psychologists both perform forensic evaluations, and either may be appropriate depending on the assignment.

Psychiatrists are physicians. Their medical training can be particularly useful when the case involves psychopharmacology, substance effects, medical causes of psychiatric symptoms, complex differential diagnosis, or psychiatric medical standard of care.

Psychologists may bring particular expertise in psychological testing, psychometrics, and, for appropriately trained neuropsychologists, detailed assessment of cognitive functioning.

Many matters could reasonably be evaluated by either profession. The individual expert's training and experience are often more important than the professional title alone.

In some complex cases, psychiatric and psychological expertise may also be complementary.

Match the Expert's Experience to the Case

Forensic psychiatry covers a broad range of subjects, and individual experts develop different areas of experience.

In criminal matters, relevant experience may include competency, criminal responsibility, psychotic disorders, substance-related conditions, violence risk, or sentencing evaluations.

Civil work may involve psychiatric injury, causation, capacity, employment matters, fitness for duty, or professional licensing proceedings.

Medical malpractice cases may require experience evaluating psychiatric treatment and standard of care.

The most relevant credentials are those that correspond to the actual psychiatric question presented by the case.

Provide the Relevant Longitudinal Records

Psychiatric conclusions often depend heavily on the course of symptoms over time.

An interview typically reflects how a person presents on a particular day. Records may show when symptoms began, how they changed, what treatment was provided, whether similar problems existed previously, and what other events occurred during the same period.

Depending on the case, useful materials may include:

• psychiatric and medical records
• deposition testimony
• prior expert evaluations
• employment or academic records
• communications relevant to the alleged events
• police or investigative records
• collateral information from family members or others
• psychological testing
• pharmacy or substance-use records

The appropriate record set varies considerably by assignment. Not every category will be relevant to every matter, and an evaluation is not incomplete for omitting a category that does not bear on the question presented.

Causation cases are especially dependent on chronology. An evaluation of whether an event caused or worsened depression, anxiety, psychosis, or another psychiatric condition may require an understanding of the person's functioning before the event, the timing of symptom development, subsequent stressors, treatment response, and other plausible contributors.

Identifying major gaps in the available information early can make the later evaluation more efficient.

Allow Enough Time for the Evaluation

A forensic psychiatric evaluation can involve substantially more work than the interview itself.

Records may run to hundreds or thousands of pages. Additional information may become necessary after the initial review. The psychiatrist may need to conduct an examination, speak with collateral sources, review psychological testing, consider deposition testimony, prepare a report, and discuss the conclusions with counsel.

Timing can therefore affect both the scope and efficiency of the evaluation.

When an expert is retained shortly before disclosure, deposition, arbitration, or trial, there may be less opportunity to obtain missing information or consider newly produced evidence.

Early involvement can also be limited to consultation. A preliminary discussion may help determine whether a full evaluation is warranted before substantial work begins.

Be Clear About the Expert's Role

A forensic psychiatrist generally approaches the case as an independent evaluator rather than as an advocate for either party.

Counsel will often have a theory of the case by the time an expert becomes involved. That theory provides useful context, while the psychiatric analysis still depends on the underlying evidence and the range of reasonable explanations for it.

Expert opinions are generally more defensible when the reasoning is clear. A well-supported opinion is typically one the expert can explain: which facts were important, which evidence was less persuasive, what alternative explanations were considered, and why the ultimate conclusion follows from the available information.

An early expert consultation may also identify weaknesses, unanswered questions, or areas where additional information would materially affect the analysis.

Decide Whether a Direct Examination Is Necessary

The appropriate methodology depends on the question being asked and the circumstances of the case.

Some forensic psychiatric assessments can appropriately be performed through record review without a personal examination. Psychiatric malpractice and other standard-of-care reviews are common examples. In other matters, a direct examination may provide important information concerning diagnosis, functioning, competency, capacity, psychiatric injury, or other issues.

There are also circumstances in which an examination would ordinarily be useful but cannot be performed. A forensic opinion may still be possible based on the available records and other information.

When an assessment is conducted without a personal examination, the absence of the examination and any resulting limitations should be made clear. This is consistent with guidance from the American Academy of Psychiatry and the Law, which recognizes both that some assessments do not require an examination and that opinions may sometimes be offered without one when an examination is not feasible.

The available methodology and information affect both the opinions that can reasonably be offered and their limitations.

Ask the Expert to Explain the Reasoning

A useful expert opinion usually has a clear path from evidence to conclusion.

Questions that may help counsel understand the analysis include:

1. What question was the expert asked to answer?
2. What information was reviewed?
3. Which psychiatric findings were significant?
4. What alternative explanations were considered?
5. How do the psychiatric findings relate to the legal issue?
6. What supports the ultimate opinion?

These are also the kinds of issues that frequently become important during deposition or cross-examination.

The ability to explain the reasoning clearly can be as important as the conclusion itself.

Preliminary Consultation Can Help Define the Assignment

A full forensic evaluation is not always the first step.

A preliminary discussion can help clarify the question, issues, and goals of the proposed retention. The expert can also help counsel identify the psychiatric questions at issue, determine which can be meaningfully addressed, and identify the information needed to evaluate them.

This can be particularly useful when mental health appears important to the case but the precise psychiatric issue has not yet been defined.

The consultation may also help identify conflicts, determine whether an examination is likely to be useful, clarify deadlines, and define the scope of any later work.

Dr. Michael R. MacIntyre is a dual board-certified psychiatrist and forensic psychiatrist who provides consultation, evaluations, expert reports, and testimony in criminal, civil, employment, regulatory, and other medical-legal matters. He is currently accepting new forensic psychiatric matters and is available for preliminary case consultation.