Consulting with a Non-Disclosed Expert Witness
The Non-Disclosed Consulting Expert: Attorney’s Secret Weapon
By Sanjay Adhia, M.D.
Retaining a Forensic Psychiatrist as a Consultant Is a Powerful Resource
I would recommend attorneys retain a consulting expert in Forensic Psychiatry early in their case if there is any suspicion psychiatric factors exist. A Consultant expert (vs. a disclosed Expert Witness) can provide crucial insight that impacts legal strategy and even outcomes.
A non-disclosed consulting expert in any field can assist in ways unavailable to a Disclosed Expert Witness. Most importantly, a consulting expert is not restrained by the arm’s length nature of a disclosed Expert Witness.
Does My Client Have a Case?
A common question I hear from attorneys is “Does my client have a case?” This comes up if they are relying on their client’s own report of relevant psychiatric information. Similarly, an attorney should be careful about their client’s characterization of someone else’s “side of things.” For example, accusations by one party that the events unfolded because someone (else) is mentally ill.
The NGRI (Not Guilty by Reason of Insanity) defense rests on the presence of a psychiatric illness and a Psychiatrist Consultant is especially beneficial to both prosecution and defense.
Assertions of psychological factors is particularly prevalent in family-based cases where emotions are running high and consequences potentially grave. Testamentary Capacity, Probate Litigation, and Family Law cases are especially vulnerable.
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 rampant and can lead to a claim of damages that is not easily defended in Court or settlement negotiations.
Case law raises a question if a consulting‑expert enjoys an attorney-client privilege that an Expert Witness does not. If you, the attorney, determine that is true, then protection from discovery enables a less restrictive exchange of information between attorney and the Forensic Psychiatrist Consultant.
Opposing Expert’s Reports and Opinions: Critique
The variety of tasks a Consulting Psychiatrist performs can prove invaluable to an attorney.
When a Disclosed Expert Psychiatrist or Psychologist has issued a report or rendered deposition testimony, the consulting Forensic Psychiatrist may be able to share opinions not limited by those Rules of Evidence that apply to an Expert Witness.
Benefits of a Unique Second Set of Eyes
There is no substitute for providing a second set of eyes on a case. The unique perspective of someone with relevant Expertise may reveal information an attorney would otherwise overlook.
- Consider if the alleged “facts” of the case suggest a new line of inquiry.
- Review medical records. They may introduce an alternative narrative to one person’s version of the events.
- Dissect the report for the attorney, highlighting weaknesses and strengths.
- Determine if the o/c expert’s opinions have exceeded the limits of their credentials and qualifications.
- Review any o/c expert testimony for clues about the case that might otherwise be overlooked.
- Review the case to learn what o/c’s expert may have missed.
Deposition and Trial Strategy: Maximize Direct and Cross-Examination
A Psychiatrist Consultant’s most valuable contribution is often developing cross-examination questions to reveal found flaws in o/c’s expert’s opinions or credentials. For example:
- “Dr. X, you are not a psychiatrist, is that correct? [to a psychologist]
- Do you have medical training?
- Can you prescribe medication?
- In your report you rely in part on your review of pharmacy notes, is that true?
- Is it true you are not qualified to opine about medications?
Consultant Becomes A Disclosed Expert Witness: Role, Services, and Transition
Attorneys might consider asking the expert-consultant to perform an IME (Independent Medical Exam) and produce an expert report (not 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.
The question remains if the expert-consultant is later disclosed as an Expert Witness, are the IME and report considered discoverable Expert Witness opinion? Might there be a way for the parties to agree to the admissibility of a consultant’s opinions?
Whether Consultant or Disclosed Expert Witness, the Forensic Psychiatrist may be able to render valuable testimony:
Opine about the plaintiff or defendant in particular.
- Educate the fact-finder on psychiatric subject matters such as Emotional Distress, diagnosed psychiatric conditions like Depression, PTSD or Anxiety Disorders—not surprising after a trauma.
- Findings and opinions based on material obtained by the Expert including an IME (see reference to agreement above.)
- State of mind of plaintiff or defendant.
Crossing the Line
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.
The Disclosed Expert Witness
There are times when an attorney will like to convert the consulting expert to a testifying expert witness.
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 on winning their case. Rules of Evidence apply to the role and restrictions on an Expert Witness. As stated, attorney-client privilege may not apply, and communications might be subject to discovery. Attorneys are responsible for knowing the Federal and State law on this issue, so no barriers are crossed.
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 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 brings invaluable experience and understanding to a case that cannot be obtained any other way. 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.
Here are a few interesting articles and blogs to inspire inquiry about the differences between a consulting-expert and a disclosed Expert Witness. Caveat: I am not an attorney and cannot verify they are legally accurate.
Expert Witness Disclosure: Avoiding Exclusion (Ryskamp, ExpertInstitute)
Consulting vs. Testifying Experts (Funk, ExpertInstitute)
 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.