After cross-examining dozens of psychotherapists at trial and taking hundreds of depositions of defense psychotherapists, I believe that there are several key factors that should be recognized when taking a defense psychotherapist deposition. Some of these key factors are included below:
1. Learn the Medicine.
As good personal injury lawyers, we have all spent a great deal of time learning medicine, particularly the medicine involving orthopedic injuries. Before taking the deposition of a defense psychotherapist, it is important to spend a similar amount of time learning the basic concepts of psychology and psychiatry, particularly as they relate to your case.
Unfortunately most attorneys and, in fact, defense experts, seem to think that the only relevant source material in psychiatry is the DSM-IV. This is not true. There are many, many textbooks and articles that provide invaluable information. Many of these textbooks and articles contradict the DSM-IV and will provide very, very useful information for cross-examination.
Defense psychotherapists, who are sometimes lazy, will not be that familiar with the literature. Although you cannot cross-examine them on literature they have not read, you can find out from your own expert who he or she relies on as authoritative in the field and ask the defense expert whether or not he or she agrees or disagrees with the principles stated in the articles and text written by the people your expert relies on, without citing the articles.
2. Do Not Get Hung up on Diagnoses.
We have seen too many depositions of defense psychotherapists which turn into an argument regarding diagnoses, particularly an argument as to whether or not the plaintiff is suffering from a post traumatic stress disorder. Keep in mind that in most situations, jurors are not going to care one way or another how a mental disorder is labeled. What will matter to the jurors is the extent or lack of your client’s suffering. Is your client suffering any more if she has a post traumatic stress disorder rather than a mixed anxiety/depressive disorder with most of the same symptoms of a post traumatic stress disorder?
3. Pick Your Stressor Battles Wisely.
If you take the defense psychiatrist on on the issue of post traumatic stress disorder and he or she claims that the subject trauma is not a significant enough stressor, then you may want, in your deposition, to stay away from the stressor requirement and question the defense expert on whether or not the plaintiff fulfills the remaining criteria of the diagnosis.
A good technique in this regard is to leave your DMS-IV at the office and photocopy the pages from post traumatic stress disorder section, and as the deposition goes on, sporadically ask the defense expert whether or not the plaintiff suffers from one or another of the symptoms without letting the expert know you’re reading from the DSM-IV. Using this technique, by the end of the deposition you may be able to obtain the defense expert’s agreement that the plaintiff suffers from all the symptoms of post traumatic stress disorder without the expert or defense attorney even realizing what you accomplished. Then, at trial or in a mediation brief, you can point out all of the areas in which the defense expert agrees that plaintiff is suffering from the symptoms of a post traumatic stress disorder.
4. Obtain the Defense Expert’s Agreement That Trauma Can Cause Significant Psychological Injury.
Remember that as conservative as a defense psychiatrist/psychologist may be, they are likely to be more sympathetic to the concept of psychological trauma than many jurors.
One of the easy concessions that you should be able to obtain during a deposition is that trauma can cause debilitating psychological distress and injuries.
5. Obtain the Defense Expert’s Concession That Trauma Is Subjective.
One of the problems with the DSM-IV is that it attempts to objectify the extent of trauma that is necessary to cause a post traumatic stress disorder. Defense experts and defense attorneys try to take advantage of this fact by stating that the psychiatric/psychological community recognizes that minor trauma cannot cause significant psychological injury. Unfortunately, the defense sometimes gets away with this, despite the fact that it is not true.
Sometimes you can obtain a direct concession from an honest defense psychiatrist/psychologist that minor trauma can cause serious injury. If you cannot achieve this, then you want to at least obtain a concession that all of us have different defense mechanisms and personality styles. Because of our unique defense mechanisms and personality styles, we all react to trauma differently. This is common sense and, when pointed out to the jury, they will get it.
Further, most of the psychological texts recognize the fact that minor trauma can cause significant psychological distress depending upon the person’s vulnerability. Thus, you want to establish with the defense psychiatrist/psychologist that your client was vulnerable to the particular trauma and, thus, had a greater reaction to it than most people would have.
6. Have the Defense Expert Help You on the Causation Issue.
The most difficult issue in most psychological injury cases is causation. Jurors are very skeptical that trauma, particularly minor trauma, can cause significant psychological injury. Many times the defense expert in his or her report will concede some period of mental disorder from the subject trauma. Typically, the defense expert will concede a two- or three-month adjustment disorder after a trauma. Take this and run with it at the defense expert’s deposition.
First of all, establish that the adjustment disorder did not just appear out of no where and is associated with the subject trauma. Then, have the defense expert concede that an adjustment disorder, which sounds relatively minor, is a recognized mental disorder that can have serious consequences.
Finally, and most importantly, ask the defense expert how the subject trauma caused the mental disorder. This will be the key question for the jury and now you will have the defense expert admitting something to the effect that the plaintiff was particularly vulnerable to the trauma; the trauma broke down the plaintiff’s defense mechanisms, and the plaintiff, for at least a period of time, was unable to cope. This will be gold at trial.
7. Take on the Defense Psychiatrist on Psychological Testing.
In some cases the defense only hires a psychiatrist to defend the case. If your expert, or experts, has done psychological testing, have the defense psychiatrist concede that (1) he or she sometimes relies on psychological testing results, and (2) he or she is not an expert on the subject matter. Sometimes defense psychiatrists try to wiggle out of this and claim that although they do not perform the tests themselves, they do have expertise in psychological testing. If you are properly prepared, you should be able to annihilate the defense psychiatrist at this point. Before the deposition, learn the details of the tests and cross-examine the psychiatrist on the details. They will never be able to handle it.
8. Cross-examine a Defense Psychologist on the Details of Prescription Drugs.
Sometimes the defense will only hire a psychologist and the psychologist may claim to have some expertise in prescription drugs. Psychologists are not allowed to prescribe drugs and, although they do have some rudimentary knowledge of them, if your client is taking drugs, the defense psychologist probably does not have extremely detailed knowledge on the subject matter. Prepare by not only reading the PDR but also textbook on prescription medicine, and take the defense psychologist apart if he or she claims to have knowledge in this area. If he or she concedes that they do not have knowledge in the area, then have them concede that they cannot testify to the relationship between your client’s symptoms and the drugs.
9. Taking on the Personality Disorder Defense.
Frequently the defense expert will testify that the plaintiff has a personality disorder which, by definition, pre-existed the subject trauma. They will usually point to psychological testing which confirms this diagnosis. However, have the defense expert concede that diagnoses cannot be made from psychological testing alone. Then, ask the defense expert to point to every example from the plaintiff’s life that he or she suffered from a personality disorder prior to the subject trauma. Frequently, the defense expert cannot do this. People with personality disorders necessarily have significant dysfunction in the areas of work, school or social life. If you have a client who has been in a long time marriage and held down a job and had decent relationships, then they are not suffering from a personality disorder. The defense expert will look foolish when he or she tries to justify the diagnosis based upon day-to-day problems which we all, including the jurors, have, such as an occasional fight, an occasional example of poor performance at work or school.
The beauty of beating the personality disorder defense is that the defense psychiatrist/psychologist will have to concede that a personality disorder is a very severe mental illness. Thus, they are conceding that your client is suffering from a severe mental disorder. If you can then establish that your client is not suffering from a personality disorder and there are no other stressors capable of causing a severe mental disorder, then you will be able to point out to the jury that the defense concedes that the plaintiff is suffering from a severe mental disorder and the weight of the evidence points to the subject trauma as the cause for it.
10. Beating the “Other Stressor” Defense.
Frequently the defense expert will testify that a stressor other than the subject trauma caused plaintiff’s psychological distress. Frequently they will point to events such as death. The way to deal with this in cross-examination of the expert at deposition is to ask the expert what symptoms commonly follow death. In the case of death for instance, the answer is undoubtedly gong to be grief. Then, force the expert to concede that your client has symptoms which are very specific which would be inconsistent with a grief reaction or even the type of depression and anxiety that is involved with separation . For instance, a fear of driving, hypervigilance, exaggerated startle response, etc.
Further, pinpoint the expert on the onset of symptoms. Attempt to establish that the symptoms began right at, or soon after, the subject trauma, and not at the time of the death.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.