The Problem of Late Withdrawal
The ethical expert turns down cases that are without merit from the start, neither appropriately psychiatric in nature nor meritorious on the facts. This turn-down decision can be made as early as the first call from the attorney, if the determinants are sufficiently clear; more commonly, after case review, the attorney may be informed that the case, from the forensic viewpoint, in the expert’s professional opinion, does not possess sufficient merit to proceed.
Withdrawing later in the proceedings, after some considerable time, effort, and money have been invested in the expert review, is of a different order (1).
The expert risks leaving the retaining attorney in the lurch, and bad feelings, at the very least, are one of the likely outcomes …. [T]he decision to withdraw at a late stage rests at the nexus of competing considerations of ethics, justice and personal consequences (1, p. 390).
On the other hand, the right to withdraw must be available to the expert in any one of a number of situations that threaten to compromise the expert’s freedom from partisan pressure or ability to maintain an objective position.
EXAMPLE:
An expert had prepared an extensive report in a complex case with a large database of documents. An attorney from the retaining law firm asked to go over the report with the expert; the expert agreed. After a number of trivial suggestions (e.g., use dates for depositions rather than volume numbers) the attorney began to pressure the expert to leave out specified sections of the report. Because this constituted an attempt to influence, perhaps even alter, the expert’s opinion, the expert withdrew from the case.
The basis for this serious step may be derived from the commentary of the code of ethics of the American Academy of Psychiatry and Law (2, p. xii), which notes:
This principle rests in turn on the more fundamental mandate for objectivity in the code itself:
Although [experts] may be retained by one party to a dispute in a civil matter or the prosecution or defense in a criminal matter, they adhere to the principle of honesty and they strive for objectivity (2, p. xi).
FACTORS INFLUENCING LATE WITHDRAWAL
A number of factors in the forensic context, in the form of behaviors by the retaining attorney, may serve as triggers for late withdrawal. These include the retaining attorney’s withholding of critical data, the retaining attorney’s failure to meet conditions necessary for opinion formation, violations of the fee agreement, and the attorney’s last-minute change of the forensic task or its focus. Factors external to the attorney may include severe loss of objectivity by the expert, as when one of the parties is belatedly revealed to have or have had a relationship with the expert or when an unexpected development in the case strikes home too personally on the expert. These situations and examples thereof, together with possible remedial approaches to the problem, are discussed later.
Withholding Critical Data
The actual extent of this problem is unknown, but a small empirical pilot study (5) performed on forensically experienced subjects who were attendees at a professional meeting of the American Academy of Psychiatry and Law revealed that 49% of the subject group had experienced cases in which attorneys withheld data relevant to the case from their own retained experts; some of the examples involved data that would be considered critical to the opinion. At times the withholding may not be the product of corrupt practice or venality; it may represent the attorney’s failure at case preparation.
EXAMPLE:
In an insanity trial for first-degree murder, the defendant, who had a history of long-standing mental disorders, claimed to have a plate in her head and to have been at a certain facility in a coma from a head injury for months at an earlier point. These facts were recorded in the defense expert’s report. The public defender had repeatedly told his retained expert that the actual records of the episode were unavailable. Three or four days into the trial proper, during a restroom break immediately before the expert was to testify, the public defender, also in the bathroom, handed the expert a stack of records from that same facility about the coma. When the expert took the stand, having had no chance to review the stack, the prosecutor pointed out the absence in those records of any note of a plate in the head and took the following tack on cross and during closing argument: “You fell for her story, Doctor.” The insanity defense failed (1, p. 391).
The plate issue was irrelevant because the insanity claim was based on the mental conditions; however, any record review, negotiation with the attorney, or adjustment of opinion, if any, was rendered impossible by the belated bathroom arrival of the documents. Could the expert, because of this demonstration of bad faith, have withdrawn from the
case at literally the last possible point? Would it have been better to tell the truth on oath from the stand that those records had been claimed to be unavailable? Would the latter strategy be more or less damaging to the expert’s reputation for thoroughness in case review? This unusual but fortunately rare example raises all these questions but does not leave clear the optimal approach. However, stating the truth on the stand does have the advantage of creating a lasting record in the form of the durable trial transcript of the attorney’s thwarting of the expert’s efforts to perform professionally.
case at literally the last possible point? Would it have been better to tell the truth on oath from the stand that those records had been claimed to be unavailable? Would the latter strategy be more or less damaging to the expert’s reputation for thoroughness in case review? This unusual but fortunately rare example raises all these questions but does not leave clear the optimal approach. However, stating the truth on the stand does have the advantage of creating a lasting record in the form of the durable trial transcript of the attorney’s thwarting of the expert’s efforts to perform professionally.
EXAMPLE:
An expert received approximately 500 additional pages of depositions subsequent to having formulated a preliminary opinion. He was subsequently asked by the retaining attorney to disregard the additional depositions as being irrelevant to his preliminary opinion. The expert stated that he needed to review and analyze the additional data to update his preliminary opinion or even to make a determination of relevance. The expert indicated that, without that opportunity, he had to withdraw as the testifying expert but would consider remaining available to serve as a rebuttal or consulting expert. Alternatively, the expert on the stand could tell the truth as to when the material arrived, thus locating the problem appropriately with the attorney (1, p. 391).
In this example, the expert could have justified complete withdrawal based on the attempt to restrict his database; however, the alternative solution of changing the contract, as it were, may be acceptable in some cases, depending on the expert’s view of the trustworthiness of the attorney after the events described.
Attorney’s Failure to Meet the Conditions Needed for an Opinion
EXAMPLE:
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