Americans watching the O.J. Simpson trial on television probably got the idea that criminal lawyers and expert witnesses always work together as a "dream team." However, criminal lawyers and psychiatric experts do not always function as ein Herz und eine Seele—one heart and one soul—as the German saying goes.

This fact emerged at the annual meeting of the American Academy of Psychiatry and the Law (AAPL), which was held in Vancouver in October.

Actually, many criminal lawyers are "extremely nice people. . . . You want to be nice to them. . . . You have to like them. . . . You enjoy working with them. . . . They treat you fairly. . . ." So declared Thomas Gutheil, M.D., a professor of psychiatry at Harvard University and current president of the AAPL, during a presidential address on studies that address the attorney-expert relationship. But then there are the others, he lamented. It boils down to character and goodwill, he said, and sometimes "they are slender reeds on which to lean."

So what are these "slender reeds" up to?

Sometimes they don’t pay psychiatric experts what they are worth professionally or don’t pay them at all. For instance, a Washington, D.C., psychiatrist who was in the audience during Gutheil’s talk told how he was once approached by a court-
appointed defense attorney to serve as an expert in a criminal case. He said that he was willing to review the case and gave his hourly rate. The attorney made no comment about it. But later, when the psychiatrist sent his bill, the attorney informed him that the state would pay him less than that. "That is called sandbagging!" Gutheil grimly commented.

Another troublesome practice in which attorneys sometimes engage is to ask psychiatric experts to snitch on their alter-egos—opposing psychiatric experts. Most psychiatrists in the audience during Gutheil’s address admitted experiencing such a situation at some point in their careers.

So what kind of information might an attorney press for that would be inappropriate? Results from a small pilot survey of the AAPL membership that Gutheil conducted about the attorney-expert relationship provide an answer. "Clear majorities of our respondents," Gutheil said, "felt that queries about the circumstances of the expert’s divorce in a divorce-and-custody case, the expert’s substance abuse problems in a substance abuse–related case, the expert’s homosexuality in a gay-bashing case, and the expertactual income were too personal to be appropriate."

And sometimes attorneys even attempt to influence the opinions of experts about a case. "It happens more than we think it happens," Gutheil admitted. "This is really considered a delicate and uncomfortable subject. . . . It stirs up a lot of stress."

One way an attorney might try to mold an expert’s opinion is to withhold information about a case that might sway him in the other direction. About half of the respondents to Gutheil’s survey reported that at some time during their careers attorneys had kept information from them that was critical to the case.

Another way that an attorney might attempt to shape an expert’s opinion is by wining and dining the psychiatrist or showering him or her with praise. One psychiatrist in the audience during Gutheil’s address told how an attorney from Texas had invited him out to dinner. At first the psychiatrist thought it was "Southern hospitality," but later he wondered whether the attorney was simply trying to cozy up to him and influence his outlook about the case. Attorney comments such as "I feel more comfortable working with you than with other experts I have worked with" are also sometimes intended to soften experts up, Gutheil said.

Still a third ploy that attorneys sometimes use to bias experts’ outlooks is to threaten them. This was the most disturbing of his survey findings, Gutheil said. For instance, in one case that Gutheil cited, a psychiatrist had been retained by the defense as an expert witness. The prosecutor informed the psychiatrist that if he did not cooperate with the prosecution, he would not get any more work in that town.

So should forensic psychiatrists simply roll over when attorneys attempt to stiff them? No way! Both Gutheil and the audience members listening to his presidential address were of "one heart and one soul" on that point. Gutheil and audience members also shared defensive strategies. Among them:

• Beware of attorneys bearing gifts. When an attorney says to a psychiatric expert, "I feel more comfortable working with you than with other experts I have worked with," he may really mean it, Gutheil conceded. Such a comment, however, may indicate that he is trying to sway an expert’s outlook. But a comment such as "You know, if we can make this case fly, there are a lot more cases in the pipeline" is definitely a red flag signaling that the attorney wants to influence an expert, Gutheil stressed.

• A psychiatrist should limit problem cases. It is not inappropriate for a forensic psychiatrist to take on an occasional case where he or she might not be paid for a long time, or perhaps not at all, Gutheil explained, just "for the learning curve or because you want to do something nice for people. . . . Make sure you do not take on so many of these cases," he warned, "that your kids don’t get to college."

• An attorney staff can be helpful in resolving payment delays. A psychiatrist in the audience during Gutheil’s talk reported that when payment from an attorney does not arrive within 30 days, he calls the attorney’s office and asks to speak to the person who handles the billing. More often than not, he explained, the reason he wasn’t paid was due to a mix-up, not to the attorney intentionally not wanting to pay him. What’s more, he said, such staff members are usually helpful and usually straighten out the problem. "My response rate in getting bills paid is close to 100 percent," he said. An "excellent" strategy, Gutheil told him.

• "Dream work" is working as a court-appointed expert. "One of the most comforting positions is to be a court-appointed expert," Gutheil declared, "because. . .usually the judge has some interest in your getting paid and wants to use you again. Also, being the center expert rather than partisan is for many people a very enjoyable experience."

Gutheil and Robert Simon, M.D., a clinical professor of psychiatry at Georgetown University, have just finished writing a book about issues surrounding expert-witness practices that will be published next year by American Psychiatric Press Inc.