The lawyers know how to attack psychiatry

Extracted from Cross-Examining the Plaintiff's Psychiatric Expert by Dana N Levitt and Caroline S Lee

One potentially fruitful approach to cross-examining psychiatric experts is to attack the field of psychiatry itself and its lack of reliability. By highlighting the deficiencies or problems in the mental health field, and particularly the disagreements or debates within the scientific community itself concerning psychiatry, the lawyer can discredit the expert and significantly undermine the impact of his or her entire testimony. Dr Jay Ziskin's treatise entitled Coping with Psychiatric and Psychological Testimony⁽¹⁾ is indispensable in this regard; not only does it discuss and reference scientific and professional literature which illuminate the deficiencies of psychiatric knowledge and methods, but it also provides sample cross-examinations of a psychiatric witness.⁽²⁾ Among other things, Ziskin's treatise challenges the scientific status of the field, the classification systems employed, the conclusions derived from clinical examinations and the weight accorded to the psychiatrist's or psychologist's experience, education and training. The book thus serves as a comprehensive guide for effectively negating the expertise of mental health professionals. No attempt will be made here to summarize or synthesize the extensive amount of material presented in Dr. Ziskin's comprehensive three-volume work. Instead,defense counsel should independently consult Ziskin's book to determine what sections are most relevant or useful with respect to the particular case at hand.

In conjunction with attacking the field of psychiatry as a whole, counsel should focus on those factors that adversely affect the reliability of psychiatric opinions in general. Much has been written on the unreliable nature of the judgments of psychiatrists and other mental health professionals as witnesses.⁽³⁾ Indeed, a large portion of this literature has been generated within the scientific or professional community itself. In general, the literature indicates that the clinical judgments of psychiatrists are often seriously flawed for a number of reasons, and therefore, should not be accorded "scientific" status. Terrence Campbell's article entitled "Challenging Psychologists and Psychiatrists as Witnesses" sets forth a number of these reasons.⁽⁴⁾

One reason is that psychiatrists have a tendency to disregard scientific evidence in favor of theories which have not been proven or validated. Another is that their over-exposure to maladjusted individuals results in "an exaggerated sensitivity to psychopathology" or a predisposition to find disorders and abnormality where none may exist.⁽⁵⁾ Third, the line of questioning a psychiatrist pursues or the manner of questioning may bias the information obtained; "the expectations of psychologists and psychiatrists can lead them to believe that symptoms consistent with their diagnostic impressions were exhibited in an interview, when in fact, they were not."⁽⁶⁾ Fourth, research has shown that psychiatrists typically reach their diagnostic conclusions early on in interviews; as a result, they often rely on minimal data in making conclusions and have a tendency to disregard evidence which contradicts their initial impressions, leading to the maintenance of false beliefs and judgment error.⁽⁷⁾ Fifth, Campbell points out that psychiatric interviews are flawed because psychiatrists often indulge in spontaneous questioning which can bias their data, rather than following comprehensive checklists of questions.

Similarly, Ziskin's treatise notes that there are numerous problems in data collection and interpretation by psychiatrists. Because the psychiatrist must rely solely on the symptoms and facts as related by the patient, the patient may mislead the examiner, particularly when the patient is involved in litigation.⁽⁸⁾ For example, the patient may have an incentive to withhold information which may harm his case if he knows that the psychiatrist will be testifying in his case.⁽⁹⁾ The psychiatrist may have no means to objectively verify what the patient has told her.⁽¹⁰⁾ In addition, examiners influence the data they obtain; thus, different examiners can have different effects on data, leading to inconsistent results.

Moreover, there is much controversy within the field regarding the diagnostic categories or classifications which psychiatrists rely upon in light of their variable and inconsistent application and interpretation, their proven lack of reliability and validity and their limited utility in addressing forensic issues and questions due to their general nature.⁽¹¹⁾ These classifications are contained in the Diagnostic and Statistical Manual of Mental Disorders(DSM) published by the American Psychiatric Association, the most recent editions beingDSM-III, DSM-III-R and DSM IV. Both Campbell's article and Ziskin's treatise elaborate on the inherent deficiencies and problems with these systems of classification.⁽¹²⁾

Counsel may wish to explore some or all of these issues with the expert, and attempt to elicit favorable admissions or concessions concerning the problems within the field of psychiatry. Most psychiatrists are aware of the debate within the profession as to the limitations of the methodology employed and the lack of reliability or consistency of psychiatric diagnoses. Therefore, some experts may not be reluctant to engage in a discussion of these issues. This is an area in which counsel is advised to familiarize oneself with the literature on the subject, either by reading Ziskin's treatise or by consulting her own psychiatric expert, prior to questioning the opposing expert.

1. 1-3 Ziskin, Coping with Psychiatric and Psychological Testimony (5th ed. 1995).

2. See 3 Ziskin, supra note 1, at 108 ff. for sample cross-examination questions.

3. See, e.g., 1 Ziskin, supra note 1, at Chs. 1, 3, 5 & 7.

4. Terrence W. Campbell, Challenging Psychologists and Psychiatrists as Witnesses, 73 Mich.B.J. 68 (Jan. 1994)

5. Id.; 1 Ziskin, supra note 1, at 391.

6. Campbell, supra note 4, at 68.

7. Id.; 1 Ziskin, supra note 1, at 232-44 (discussing the phenomenon known as "confirmatory bias", the tendency to maintain beliefs, even in the face of counterevidence).

8. See Cross-Examining the Plaintiff's Psychiatric Expert by Dana N Levitt and Caroline S Lee, Section II "Highlighting the Expert's Bias" on malingering.

9. Peter B. Silvain, Psychological Injury Claims: A Primer for Defense Counsel, The Indiana Lawyer, November 2, 1994, S3 at *6.

10. 2 Douglas Danner & Larry L. Varn, Expert Witness Checklists (2d ed. 1993) at 6:100.

11. 1 Ziskin, supra note 1, at 402-30.

12. Id. at 152-87; Campbell, supra note 4, at 70-71.