The Mental Health Professional in Court: A Survival Guide

For most practicing mental health clinicians, and the majority of the public at large for that matter, the idea of going to court is as appealing as a root canal. Dramatic courtroom portrayals on television and terrifying anecdotes from friends and colleagues frequently describe merciless lawyers intent upon destroying the self-esteem and credibility of those unfortunate enough to be brought before them. As pointed out by the authors of this book, ours is an increasingly litigious society, and the potential to appear inside of a courtroom is becoming increasingly common, particularly for the practicing clinician. The Mental Health Professional in Court: A Survival Guide is intended to aid the legal neophyte through the potential dangers and pitfalls lurking within the legal system while demystifying the process and reducing anxiety about this inherently stressful experience.

Though there are numerous examples of when an individual may be asked to come to court, the core situation for which this book is designed to be of help is the malpractice suit brought against a clinician. The authors attempt to get the reader through the process of a malpractice claim (and the legal system in general) in a predictable and tolerable way. This readily accessible book succinctly illustrates the basics of the legal process, from the day the subpoena arrives on the doorstep to the dreaded appearance in court, and hammers home the importance of knowledge and preparation for maintaining credibility and sanity throughout the process. The premise of the book is to begin at the beginning, which is a good place to start for those without experience in the world of lawsuits, lawyers, judges, and the arcane rules of the legal system.

Drs. Gutheil and Drogin successfully engage the reader throughout the book by employing the use of humor and informality in combination with real-world examples of actual cases, courtroom experience, and consultations with colleagues. This book is a revision of Dr. Gutheil’s previous work, The Psychiatrist in Court: A Survival Guide, published more than 10 years ago. This updated version, like its predecessor, continues to provide the reader with sound practical advice.

The material in this book is provided in short, efficiently written chapters that allow the reader to easily digest the material, particularly if read just prior to an initial court or deposition appearance. The chapters range in length from two to 20 pages, each concluding with bulleted key points to summarize the primary contents of the chapter.

The book begins with an introduction addressing initial reactions to being brought to court, primarily focusing on the potential malpractice claim. Here, the authors summarize the various types of witnesses, how clinicians might find themselves called into court, and what they might be expected to testify about. This introductory chapter highlights the differences between fact and expert witnesses, conflicts of roles and interests, subjective and objective viewpoints, foresight and hindsight, and political contamination of the process.

Chapters 2 and 3 delve into the psychology of litigation to help clinicians understand how they were brought into court in the first place and the factors that pave the path to litigation. Issues such as transfer of guilt, expression of rage, avoidance of grief, betrayal of trust, and feelings of abandonment are discussed as predicates to a potential malpractice lawsuit. The most common clinical situations triggering lawsuits are discussed, including suicide, boundary violations, and breaches of confidentiality.

Chapter 4 summarizes the factors that seem to be motivating the various players in the conflict, including the plaintiffs, opposing counsel, defense counsel, and various experts that may be asked to provide opinions on the matter at hand.

A practical guide to surviving interrogatories and depositions is outlined in chapter 6. Here, specific guidance is provided with regard to working with one’s own legal counsel. The authors help the reader to understand potential errors and pitfalls during depositions while illuminating the tactics employed by opposing attorneys in this process, which is often as far as most clinicians get when involved in malpractice cases.

Chapters 7 through 9 shift the focus of the book to preparation for the courtroom itself. Chapter 7 provides help with anticipatory approaches to working with attorneys and making the courtroom feel less stressful and foreign, while chapter 8 describes the roles of the various courtroom personnel and the basic rules of the court, including admissibility of various forms of evidence. Chapter 9 focuses on the trial itself and the expectations of the role of the clinician as a fact witness. The “six Ps” of trial preparation (preparation, planning, practice, pretrial conference, pitfalls, and presentation) provide sound practical advice for the novice in court. This chapter also provides a nice description of the emotional turmoil associated with the legal proceedings.

Chapter 10 provides advice about taking care of your emotional and physical health during the litigation process, while chapter 11 concludes with a description of the aftermath of litigation with reminders that life truly does go on following a foray into a malpractice claim.

The book contains three appendices, including a description of the civil litigation process, a very helpful glossary of legal terms, and recommended readings and online support for those who are interested in digging deeper into the issues touched upon in earlier chapters. This book is not a discourse on the finer points of expert witness work, and there are references to many other helpful books and articles for the expert psychiatric witness, including Dr. Gutheil’s earlier work The Psychiatrist as Expert Witness.

The courtroom may be perceived as a hostile environment by many clinicians, but increasingly, practicing psychiatrists and therapists are being called into court to give testimony either in defense of their practice or in support of their patients. Armed with the lessons and recommendations derived from this easily digestible book, the practicing mental health clinician may not only gain increased comfort, but also increased effectiveness as a witness in court. I found this book by Drs. Gutheil and Drogin to be conversational and pedagogic in nature and an overall fun and easy read. If I were going to court for the first time or facing my first deposition, I would certainly take the time to absorb the lessons offered in this handbook.