Working as a forensic expert can be a lonely experience. This makes collegial relationships all the more important, whether they be through the American Academy of Psychiatry and Law (AAPL), through the American Academy of Forensic Psychology (AAFP), or through professional district branches, organizational meetings, or more informal gatherings. In addition, experts may operate within a “nest” of associations, such as an institution, clinic, academic setting, professional organization, or small community within a geographic area. As a result of this proximity or other factors, it may occur that colleagues appear as opposing experts in one’s cases, or the expert is in the position of testifying about the standard of care of a colleague in the context of a malpractice case, ethical behavior in an ethics complaint, or fitness to practice in a licensure complaint (1).

In any of the last three contexts an expert on the stand for a deposition or trial may be asked for an opinion about the opposing expert or colleague. Inescapably, this places a potential strain on the collegial relationship. Separate retaliatory ethics complaints and even suits for slander may be the result (2).

An additional factor is the recent controversial decision by the American Medical Association (3) to characterize expert testimony as constituting the practice of medicine (consequently sometimes requiring licensure in the relevant state to testify). This decision may have the effect of decreasing the use of out-of-state experts and increasing the use of local practitioners. This outcome might be expected to increase the occurrence of the strains noted previously. The expert is torn between the wish and burden to testify truthfully under oath and concern with “fouling one’s own nest.”

Advocacy pressures are another factor; on the witness stand in the heat of the moment during aggressive examination by attorneys, personal biases and information may slip out or be blurted out defensively.

An additional problem is posed by the perceived greater threat and unpleasantness of travel in an era marked by terrorism. This popular observation may increase the number of cases one might undertake that are close to home, hence, subject to the concerns we are addressing here.

An earlier study (4) concerning what experts found acceptable to say about opposing experts revealed that material considered to lie in the public realm (such as information that might appear in curriculum vitae or website or published material) was seen as fair game for disclosure by one expert about another; private information—about an opposing
expert’s substance abuse, marital difficulties, recent losses and the like—was viewed as off limits (4).

A point could be made here that experts should not respond to those questions as being outside their mandate or even their expertise; one may state: “I have not been retained to assess another person’s reputation but to give testimony on the matter at hand.” Another appropriate response would be: “I have no factual basis for such an opinion to a reasonable degree of medical certainty.”

It is a common observation that ethics codes display severe limitations when used to deal with specific conduct by individuals. Even the AAPL codes fall short of clear guidance for issues that arise daily in forensic practice.

In a number of instances the fact of residence in the same nest is not as significant as the resultant accusation of bias that emerges in cross examination. The claimed bias may stem from a previous acquaintance between parties, a bias from an alleged competitive motive against a colleague in the same field and same area, a bias based on an alleged claimed rivalry, or other factors. In addition, opposing experts who take extreme positions may thus invite more personal criticism.

A strong case could be made for turning down this last case in general. The view of the expert on the case was allegedly that the institution would not want its own funds misused; therefore, the expert was testifying in the interests of the institution. This posture does not escape the appearance of a serious conflict of interest.

Similar problems may occur in institutional nests. These may include hospitals, correctional or residential facilities with which the expert has been affiliated, academic institutions, or professional organizations. In areas where there are few forensic mental health experts, experts may be called on by counsel for either side in civil suits involving institutions where they have past or present affiliations. These cases are problematic in that they introduce the issue of bias, especially if one is testifying for the defense. On the other hand, testimony on behalf of the plaintiff may invoke the wrath of medical colleagues at the institution and accusations of showing disloyalty, being a hired gun, or, worse, being a “courtroom whore.” Retention in these cases may also jeopardize future relations with the institution if one’s testimony is either critical or, conversely, not helpful enough.

Note that avoiding even the appearance of bias is of significant value in enhancing expert credibility.

An ancillary problem of becoming involved in litigation with one’s own institutional nests is that review of discovery material may reveal deficiencies in the standard of care rendered by colleagues who are not necessarily parties to the litigation. The expert who reviews these records may be left knowing more than he or she cares to know about colleagues and is not in a position to discuss these issues with the latter, even if that might result in improvements.

A related problem arises with class action suits, where plaintiffs may appear from a broad spectrum of facilities and locations. Although such suits may accomplish great good for patients, the ripples from them may impinge unforeseeably and unexpectedly on one’s colleagues.

Although, in this example, the testimony was given rather tactfully, the potential for narcissistic injury is always present (9). Note also that the option of not giving an opinion on this nonforensic point was not exercised. Note also that—because the other clinician was chosen to cover the practice—a negative opinion calls the referring clinician’s own judgment into question.

The previous examples leave unclear the question of where one should draw the line in acting so as not to risk fouling one’s own nest. One
criterion may be the content of the information, testimony, or revelation itself. Needlessly inflammatory testimony or other communication is inappropriate.

A second parameter is the size of the relevant community. Already in AAPL, with membership of nearly 2000, members occasionally find themselves on opposing sides of cases with other members. If everyone behaves politely and with appropriate mutual respect, useful testimony without subsequent alienation or acrimony may transpire. However, lasting grudges may also develop.

A third consideration is one’s own strength of feeling about a case, another knife that cuts two ways. Feeling strongly about one’s opinion may be a sign of either clear conviction or bias; in addition, this feeling may reflect some transference-based dynamic about the other individual involved—a dynamic that may make one’s objectivity compromised.

Strong feelings may also lead to this narcissistic posture (9): “I know my opinion is correct; therefore, if the opposing expert disagrees, the only possible explanation is that he or she is a corrupt hired gun.” Even in an acknowledged adversary procedure, disagreement may be seen as insult or criticism, leading to a perception of “nest fouling” even when this is not necessarily the case.