Dr. Thomas Gutheil began his presidential address recalling the 1977 event that prompted him to choose this topic - the litigation in the case which later came to be known as Rogers v. Commissioner. At the time, this "right to refuse treatment" case was in full swing during its second year and was casting its shadow over the inpatient unit of Massachusetts Mental Health Center, where he was the attending psychiatrist. He was discussing treatment refusal with Dr. Paul Appelbaum, who was then a second year resident. Out of this discussion came the awareness that while a Federal District Court Judge equated antipsychotic medication to psychosurgery, no one knew how much treatment refusal was actually occurring. They both then realized the truth that the watchword for many problems in psychiatry and law is "Nobody has done the study to find out what actually happens."
Dr. Gutheil disclosed that he derives the greatest research pleasure in doing studies in taboo areas, especially those areas that raise conflict, embarrassment and anxiety in the profession and which consequently have not been explored. The actual operation of attorney-expert relationship falls in this category and consequently has not been previously explored. Lack of empirical study stands in marked contrast to the plethora of generalizations about the relationship. Given its absolute centrality to forensic practice, the attorney-expert relationship in all its details remains for the most part terra incognito.
Dr. Gutheil explained that this historic territory was mapped by persuading AAPL members to fill out questionnaires. The questions addressed the aspects of attorney-expert relationships that were considered to be relevant and which were not earlier explored empirically. Turning to the study, he explained that the data pool consisted of thirty-seven questionnaires and that the results were grouped into three major categories - Billing Issues, Trial Behaviors and Attorney Pressures.
Dr. Gutheil added that a separate descriptive study of fee agreements employed by senior AAPL members revealed a surprising fact. Out of the twenty responses, it was found that only 55% of them used agreements. Dr.Gutheil was surprised that a large percentage of senior members were not using contracts. He explained that in his own practice his original fee agreement was only four sentences long. Today his fee agreement is two pages long in fine print, thanks to his experience dealing with different attorneys.
Dr. Gutheil found that therapists who are capable of taking an extensive probing history without a qualm often become shy when it comes to a question of discussing money. In matters of travel he observed that most experts followed a rational approach. He added that when they are confronted with complex situations, say visiting two attorneys in different cities on the same trip, experts took different approaches, including billing both attorneys for the entire cost of the trip. As to billing for library research, he found that 94% of the respondents billed for their time spent on library research on the exact case topic. Only 68% of the respondents billed for general research related to the case. The controversial issue that was raised, he pointed out, was whether the expert was expected to know the field already and whether there was any justification for billing for this research. He added that the respondents felt that billing in this area should be cleared with the attorneys first.
He remarked that 57% of the respondents answered in the affirmative to the question of whether they bill for thinking about a case. One expert responded that he did not bill for thinking about the case because he had not thought about doing it.
Dr. Gutheil then referred to a situational question in which the attorney sends a case but not the retainer. While the case sleeps on the shelf, the other side calls and promises an instant retainer if the expert takes the case. In such cases, the general trend was to turn down the second attorney based in part on the feeling of wanting to avoid even the appearance of impropriety by changing sides. He continued that in cases where it was asked what the expert would do if he/she had already returned the case, 74% responded that they would still not change sides. He added that the minority felt that they were "unretained" in such situations and free to take the other side.
Dr.Gutheil next took up the second study that related to trial behavior. He pointed out that there are two common experiences for experts.
The expert may be asked any unpleasant question by the attorney.
The expert may be asked an opinion about another expert as a person.
The question was whether there are any limits on the topics that attorneys can properly ask and what principles might apply. Participants felt that questions that were too personal are inappropriate. With regard to the expert's opinion about the opposing experts, he added that appropriate professional facts and a general opinion relating to the expert's field of specialty may be given. More personal and subjective disclosures were generally thought to be inappropriate. There is a significant lack of consensus when the personal experiences of an expert could potentially color the testimony in cases involving divorce and custody disputes, substance abuse or alcoholism.
Dr.Gutheil then took up the third major category of investigation, which may be referred to attorney pressures. He remarked that this happens more often than not and is also a delicate and uncomfortable subject.
He referred to three tactics employed by attorneys - withholding, seducing and coercing and explained them as follows. Withholding refers to the attorneys holding back the critical data with a view to influence an opinion. Seduction refers to the use of social and personal incentives such as promises of future retention if the opinion in the present case is favorable. Coercion refers to attempts by the attorney to dissuade the expert from an unfavorable opinion by the use of threats or pressures.
In their responses, 49 % of the experts noted that relevant materials were withheld intentionally, 35 % experienced some form of seduction, and 19 % responded that they faced some form of threats aimed at affecting their opinions.
Dr. Gutheil concluded that the preliminary data from the small sample suggests a further study and open discussion of these previously hidden issues. He suggested "Efforts should continue to gain a better understanding of the standards of appropriateness applied to these issues and better guiding of our students and colleagues in withstanding the potential pressures that may be brought to bear upon them in their work."
Dr. Gutheil's presentation was witty, relevant and enjoyable. There was ample time for discussion following the address. There were more than twenty-five comments and questions from spirited AAPL members during the sessions and many more reached for the stage informally at the conclusion of the presidential address.