Deposition Request

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SportsNeuroPsych

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Hi all - I have a question re: a deposition request. I received a phone call from an attorney's office for a deposition of a patient that I had seen during my fellowship. Since I am a few years out of fellowship at this point and have not been deposed in any professional context, I was wondering if anyone could shed some light on this. Is this something that should/will be addressed by my fellowship supervisor since I was technically still a trainee at that point or am I going to have to be involved regardless? I was also going to reach out to my former site before calling the attorney's office but any help here would be greatly appreciated. Thanks in advance!
 
I'm pretty sure you could be deposed yourself despite being a trainee, although your supervisor may need to also be there if you were. Others can certainly chime in, but talking with your former training site first sounds like a good idea; they may need to get in touch with their own legal team/malpractice folks. If you have a lawyer and/or your own malpractice insurance currently, it's probably not a bad idea to reach out to them as well (before calling the other attorney).
 
Definitely reach out to the former site as you were technically practicing under someone else's license at the time. This is somewhat different than if you were deposed on someone you were seeing independently as presumably some of the clinical services/conclusions/treatment recs were influenced by your supervisor. Also, don't let them trick you into answering questions as an expert witness vs treating.
 
(Not legal advice, just what I would do in that situation)
1) Call my malpractice insurance. Inform them. The Trust has an advisor that can walk one through this.
2) Call my old fellowship site. They will refer to their legal department. I’d do what they say. This might be on the supervisor's license.
3) Call up an attorney who represents professionals. Ask for a consultation.
4) Review "fact witness" vs "expert witness".
a. An expert witness can offer opinions.
b. A fact witness can only answer facts.
In this case, the facts are what i wrote in the report. So it would be called as a fact witness. The testimony is limited to the material written in the report. They ask a question, I’d look at the report, and answer "the report says...". They will pressure one for an opinion, because it is cheaper for them. I don't have an opinion, because the clinical evaluation was not designed to meet the legally required aspects of an expert opinion.
5) The attorneys have to serve someone a subpoena. I’d give them information for that (e.g., office address, business hours). I would not talk to the attorneys over the phone, giving them free information.
6) After they served me, I would respond. A subpoena requires one to respond in some fashion. However, we are under no obligation to do what the subpoena says. I’d Google "objections" and "subpoena"
7) When deposed, I’d just answer honestly. You do not have to answer in the format that they say. I would not offer opinions. It is totally fine to respond, "the report does not say anything about that".

None of this is legal advice because I’m not a lawyer or a legal professional.
 
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Appreciate everyone's advice. I have a phone consult with someone from Trust later this afternoon and will then reach out to my fellowship site to get their input as well.

I'll try to keep this thread updated as things progress so others who may be in this situation down the line can have a reference.
 
This happened with me a few years after fellowship and they just had my supervisor come in for the deposition. Also happened during a trial for a different case and the attorney whose client my report didn't favor tried to use my facebook profile pic as a means of having the report thrown out. My old supervisor told me he'd never seen a judge so angry as he did that day.
 
When serving as a fact witness, 95% of responses should probably start with..."as documented in my note/report...." It can feel tedious, but it can help keep you on the straight and narrow of what you wrote. /Not legal advice.
 
Therapist4Chnge said:
When serving as a fact witness, 95% of responses should probably start with..."as documented in my note/report...." It can feel tedious, but it can help keep you on the straight and narrow of what you wrote. /Not legal advice.
Click to expand...

I always like, "Counselor, can you rephrase the question to ask for a fact instead of an opinion? We wouldn't want you to accidentally commit theft of services, my services, on video recording, in the presence of several officers of the court and the court reporter. "
 
Other favorites: "Can you not yell your questions?" (so it is documented if they are being aggressive because that doesn't come across in the transcript) or "Which question do you want me to answer first? Please rephrase to one question at a time" for when they try to stack questions to trip you up. You'd think most lawyers would want this to go smoothly, but that would be incorrect. When in doubt, go with PsyDr. /not legal advice, obv
 
PsyDr said:
I always like, "Counselor, can you rephrase the question to ask for a fact instead of an opinion? We wouldn't want you to accidentally commit theft of services, my services, on video recording, in the presence of several officers of the court and the court reporter. "
Click to expand...

Question: is there a consequence to the witness if they overstep the bounds of fact witness and offer an opinion?
 
Therapist4Chnge said:
Other favorites: "Can you not yell your questions?" (so it is documented if they are being aggressive because that doesn't come across in the transcript) or "Which question do you want me to answer first? Please rephrase to one question at a time" for when they try to stack questions to trip you up. You'd think most lawyers would want this to go smoothly, but that would be incorrect. When in doubt, go with PsyDr. /not legal advice, obv
Click to expand...

I’d go with what you say. You are a LOT nicer than me.


Mama Bear said:
Question: is there a consequence to the witness if they overstep the bounds of fact witness and offer an opinion?
Click to expand...

Sure.
1) You're missing out on expert witness income, for no good reason.
2) Malpractice lawsuit, because you're not an expert witness.
3) Having your reputation in court be destroyed. In general, expert opinions have to be formed in such a way as to meet certain legal criteria. If you're offering an expert opinion without knowing and meeting those standards, you're toast.
 
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Mama Bear said:
Question: is there a consequence to the witness if they overstep the bounds of fact witness and offer an opinion?
Click to expand...

Suspension. Remediation. Best case scenario in my state. See it all the time with kiddo treatment psychologists (still amazingly) proferring child custody opinions without actually completing a custody evaluation.
 
BuckeyeLove said:
Suspension. Remediation. Best case scenario in my state. See it all the time with kiddo treatment psychologists (still amazingly) proferring child custody opinions without actually completing a custody evaluation.
Click to expand...

I can't fathom what I'd have to raise my rates to to consider doing custody evals...
 
cara susanna said:
This thread is making me hope I never have to testify in any capacity.
Click to expand...
I find the slightly (but not always present) combativeness to be interesting. It can be stressful at times, but once you do it for a bit, it can become less scary. The vast majority of the cases I review settle before a court date, but there can be a depo and/or court date on top of the review and other work. I try to stick to 1-2 clinical populations because it is easier to know the associated references backwards and forwards.
 
BuckeyeLove said:
Suspension. Remediation. Best case scenario in my state. See it all the time with kiddo treatment psychologists (still amazingly) proferring child custody opinions without actually completing a custody evaluation.
Click to expand...
There is no amount of money I would accept to get in the middle of a nasty custody evaluation case. None. It's just not worth the hassle, stress, and negativity.
 
BuckeyeLove said:
Suspension. Remediation. Best case scenario in my state. See it all the time with kiddo treatment psychologists (still amazingly) proferring child custody opinions without actually completing a custody evaluation.
Click to expand...
Yes, my understanding is that it is not uncommon (I think I’ve seen some data somewhere). It’s a helpful parallel to understanding my question.
 
cara susanna said:
Ditto. I knew someone who did them in my grad program and she was always getting sued or threatened.
Click to expand...

Yeah, you can't bill for the time you have to respond to baseless board complaints and lawsuits. They're going to come up if you're doing legal work, but the amount that happens with custody seems untenable.
 
I was masochistic for about a 2 year period and got training/supervision from one of the few boarded folks in my city who did them prior to retiring. If you do them to the standard of care of a competent forensic evaluator, surprisingly, not too many board complaints. He had 5 over a 25 year career.. Sad thing is most who do them aren't trained appropriately. I decided not to go down that path when i found out that someone I know who started doing them was held at gunpoint by an angry dad outside the courthouse. I'll deal with psychopaths in a criminal evaluatory context all day before dealing with dads who feel they have no recourse to losing their kids.
 
BuckeyeLove said:
I was masochistic for about a 2 year period and got training/supervision from one of the few boarded folks in my city who did them prior to retiring. If you do them to the standard of care of a competent forensic evaluator, surprisingly, not too many board complaints. He had 5 over a 25 year career.. Sad thing is most who do them aren't trained appropriately. I decided not to go down that path when i found out that someone I know who started doing them was held at gunpoint by an angry dad outside the courthouse. I'll deal with psychopaths in a criminal evaluatory context all day before dealing with dads who feel they have no recourse to losing their kids.
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I would imagine there is an unfortunately large amount of shared variance between scores on "likely to assault opposition" and "likely to lose custody of child".
I can only imagine willingness to work in that area would take a special commitment to the welfare of children generally. Tough work.
 
BuckeyeLove said:
I was masochistic for about a 2 year period and got training/supervision from one of the few boarded folks in my city who did them prior to retiring. If you do them to the standard of care of a competent forensic evaluator, surprisingly, not too many board complaints. He had 5 over a 25 year career.. Sad thing is most who do them aren't trained appropriately. I decided not to go down that path when i found out that someone I know who started doing them was held at gunpoint by an angry dad outside the courthouse. I'll deal with psychopaths in a criminal evaluatory context all day before dealing with dads who feel they have no recourse to losing their kids.
Click to expand...

Me, every time my in laws say “why don’t you just do custody stuff instead of putting yourself in danger with criminal populations.”
 
Therapist4Chnge said:
I find the slightly (but not always present) combativeness to be interesting. It can be stressful at times, but once you do it for a bit, it can become less scary. The vast majority of the cases I review settle before a court date, but there can be a depo and/or court date on top of the review and other work. I try to stick to 1-2 clinical populations because it is easier to know the associated references backwards and forwards.
Click to expand...

If you are being deposed based on clinical work with a client and sent a subpoena, are you allowed to charge anything for the time in court and testimony? Because money seems like the only upside in many cases. That said, I have an irrational fear of some forensic work instilled in me by a professor of mine who made a nice side income as an expert witness destroying other psychologists as he literally wrote the book on a popular assessment tool. Oh, the stories...
 
Sanman said:
If you are being deposed based on clinical work with a client and sent a subpoena, are you allowed to charge anything for the time in court and testimony? Because money seems like the only upside in many cases. That said, I have an irrational fear of some forensic work instilled in me by a professor of mine who made a nice side income as an expert witness destroying other psychologists as he literally wrote the book on a popular assessment tool. Oh, the stories...
Click to expand...

Never been deposed for my clinical work, though I thought there may be something like not being able to charge over your regular fees or something. @PsyDr got any input?
 
Unrelated but kind of related; when I'm bored I watch court TV. The use of force expert the defense hired in the current high profile Minny trial bills at a commensurate rate that I do for private cases, and he didn't spend 10 plus years in school like an idiot like I did. Had a bit of a resultant existential moment yesterday when he was going through voire. He was most definitely a covert gun in this case though, and I feel like I've never been in that category.
 
Sanman said:
If you are being deposed based on clinical work with a client and sent a subpoena, are you allowed to charge anything for the time in court and testimony? Because money seems like the only upside in many cases. That said, I have an irrational fear of some forensic work instilled in me by a professor of mine who made a nice side income as an expert witness destroying other psychologists as he literally wrote the book on a popular assessment tool. Oh, the stories...
Click to expand...
It sounds like we had the same professor....:laugh: There are a ton of hacks out there, so doing cases against those people can be interesting because you are getting paid to rip through bad work. There are good experts out there, but there are many more bad ones.

*edited to remove inaccurate info*
 
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BuckeyeLove said:
Unrelated but kind of related; when I'm bored I watch court TV. The use of force expert the defense hired in the current high profile Minny trial bills at a commensurate rate that I do for private cases, and he didn't spend 10 plus years in school like an idiot like I did. Had a bit of a resultant existential moment yesterday when he was going through voire. He was most definitely a covert gun in this case though, and I feel like I've never been in that category.
Click to expand...
I stopped feeling bad about my rates when I saw some of the hour rates that other experts charge in physician sub-specialities and what lawyers charge their clients; thankfully I work around a bunch of pricey experts doing brain injury work. I have a pretty even split between plaintiff v defense work, which has definitely been helpful in regard to avoiding getting the "hired gun" reputation. I tell every lawyer the same thing...my reports are based on the data and I write what the data represents.
 
The person I knew who did custody evals had excellent forensic training and still got a lot of flack. Maybe it just depends on the locale.
 
cara susanna said:
The person I knew who did custody evals had excellent forensic training and still got a lot of flack. Maybe it just depends on the locale.
Click to expand...

I only know a couple of people doing this, and they deal with board and legal stuff quite regularly. Low n, but I also wonder if local statutes make this more of less likely.
 
cara susanna said:
The person I knew who did custody evals had excellent forensic training and still got a lot of flack. Maybe it just depends on the locale.
Click to expand...
While I don't know a lot about forensic work, based on my clinical work I have learned that getting flack has more to do with skill in choosing the correct cases than it does being a good clinician. This is why I take time to review all the pending consults that going to be admitted to our service.
 
cara susanna said:
The person I knew who did custody evals had excellent forensic training and still got a lot of flack. Maybe it just depends on the locale.
Click to expand...

Does it seems like identity characteristics (e.g., race, ethnicity, gender, age) may also play a role?

BuckeyeLove said:
Unrelated but kind of related; when I'm bored I watch court TV. The use of force expert the defense hired in the current high profile Minny trial bills at a commensurate rate that I do for private cases, and he didn't spend 10 plus years in school like an idiot like I did. Had a bit of a resultant existential moment yesterday when he was going through voire. He was most definitely a covert gun in this case though, and I feel like I've never been in that category.
Click to expand...

I haven't been following the case closely. This makes me very curious, though. Are you aware of any recordings available on youtube or otherwise of forensic testimony provided by a licensed psychologist? Would love to review, just for the sake of my own curiosity.
 
BuckeyeLove said:
Unrelated but kind of related; when I'm bored I watch court TV. The use of force expert the defense hired in the current high profile Minny trial bills at a commensurate rate that I do for private cases, and he didn't spend 10 plus years in school like an idiot like I did. Had a bit of a resultant existential moment yesterday when he was going through voire. He was most definitely a covert gun in this case though, and I feel like I've never been in that category.
Click to expand...

Isn't the defense coming across pretty badly in this trial though?
 
beginner2011 said:
Does it seems like identity characteristics (e.g., race, ethnicity, gender, age) may also play a role?



I haven't been following the case closely. This makes me very curious, though. Are you aware of any recordings available on youtube or otherwise of forensic testimony provided by a licensed psychologist? Would love to review, just for the sake of my own curiosity.
Click to expand...

There are a ton of great examples on YouTube. Also a ton of HORRENDOUS examples of what not to do. Look up the expert in the Casey Anthony case (I think it was that one) and get ready to laugh. Look up any cases where Phil Resnick was involved and you'll get a good glimpse of great testimony (which is essentially just being a good teacher in my opinion). I'm hesitant to put any other names on here for recommendation as they are colleagues and I feel weird putting their names on here. Phil is kind of a celebrity so I don't mind putting his name (however he remembered my name at the last state forensic conference we had and to me this was like the pope remembering your name). YouTube has a lot of great examples as well of what good testimony looks like. AAFP (American academy of forensic psychology) always has at least one workshop on effective testimony at their workshop series and they are all solid investments.
 
@Sanman

My unqualified opinions that are NOT legal advice at all.

You can't charge as a fact witness. You can't even charge clinical rates. Your testimony is essentially the same as witnessing a hit and run.

Once you have established a treating relationship, you can be sued for malpractice. Malpractice requires a treating relationship, and a professional deviation from standards that caused damages. If you are treating someone, you have established a treating relationship. If you serve as a fact witness in their case, there are no actions for which you can be sued (e.g., "I saw Mr. X for 50 minutes of psychotherapy on date). If you start offering opinions, or take money, you are creating "new" actions for which you can be held liable. Most clinical evaluations would fail to meet the legal standards required of expert opinions. Therefore, it is likely that your opinions would be be the product of negligence (i.e., you should have known the standards of the area in which you are practicing in.... expert testimony).

So if you refuse the money, you're safe. If you start taking money, you're opening yourself up to lawsuits. It's not worth it.

(******This is completely different in workers compensation settings, federal settings, and a few other settings.*****)
 
BuckeyeLove said:
There are a ton of great examples on YouTube. Also a ton of HORRENDOUS examples of what not to do. Look up the expert in the Casey Anthony case (I think it was that one) and get ready to laugh. Look up any cases where Phil Resnick was involved and you'll get a good glimpse of great testimony (which is essentially just being a good teacher in my opinion). I'm hesitant to put any other names on here for recommendation as they are colleagues and I feel weird putting their names on here. Phil is kind of a celebrity so I don't mind putting his name (however he remembered my name at the last state forensic conference we had and to me this was like the pope remembering your name). YouTube has a lot of great examples as well of what good testimony looks like. AAFP (American academy of forensic psychology) always has at least one workshop on effective testimony at their workshop series and they are all solid investments.
Click to expand...

I had a lot of trouble and haven't yet found footage of Phil Resnick on the stand, or the expert in the Casey Anthony case. However, I did find an example of a psychologist testifying in a custody case with parents who were deaf. It seemed a little...scripted? Not sure if this was real footage or just a training roleplay for ASL interpretation.

 
beginner2011 said:
I had a lot of trouble and haven't yet found footage of Phil Resnick on the stand, or the expert in the Casey Anthony case. However, I did find an example of a psychologist testifying in a custody case with parents who were deaf. It seemed a little...scripted? Not sure if this was real footage or just a training roleplay for ASL interpretation.

Click to expand...


Oh wow it does look like they purged a good amount of the videos that used to be on there. I'll do some digging and see if I can find some elsewhere.
 
BuckeyeLove said:
Oh wow it does look like they purged a good amount of the videos that used to be on there. I'll do some digging and see if I can find some elsewhere.
Click to expand...

Looking up psychologist expert witness testimony has become a new hobby of mine, and I've found a couple videos of a particularly spicy case, for those interested. The case was the alleged murder of Travis Alexander by his ex-girlfriend Jodi Arias in the state of California. Murder of Travis Alexander - Wikipedia

We've got expert witness testimony from multiple licensed psychologists that are in conflict with each other. Fascinating stuff:

Expert witness for the defense:


Expert witness for the prosecution:



What I'm most struck by is that I wasn't blown away by the expertise of either of these witnesses, or the arguments made by the prosecutor (no comments from the defense in the recordings). This is probably due to the fact that we're only getting a fraction of the full testimony/arguments, but just thought that was notable.
 
WisNeuro said:
One of those psychologists was a classmate of mine.
Click to expand...
Hopefully it was DeMarte! Her testimony really blew up the other psychologist's testimony, which appears to be fair based on the clips. There are also a few more clips available on youtube of her. She's a bit of a celebrity now it looks like!
 
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