Expert witnesses play a role in LPS conservatorships because the doctor themselves provide the primary testimony that will be used against the conservatee during their trial or hearing. The expert witness serves the purpose of providing testimony based on scientific knowledge and research. In the case of LPS conservatorships the treating psychiatrist serves as the expert witness. During the hearing the doctor's testimony carries most of the weight and in many cases does not give a conservatee a proper chance to defend themselves. In practice the doctor's status carries precedence over most matters the conservatee has to say. In this case I will be reviewing some of the potential ways for patient's counsel to impeach an expert witness. I find that patient's counsel tends to not advocate for the patient as aggressively as they should leaving the patient high and dry.
Qualification and tendering the witness
This issue matters when counsel wishes to know if the doctor is really qualified to testify about any matters regarding the conservatee. Questions about where the doctor received his education, training, specialization, and how long the doctor has been treating and seeing the patient. The first several questions about the doctors background rarely can impeach the doctor as a witness. In very few cases specialization in a certain of psychiatry such as geriatric psychiatry or child psych may be presented as grounds but it would be a long stretch to impeach a doctor over that alone. Does time play a role? There are many advocates who will argue that a psychiatrist who has only known the patient for the period of the hospitalization is not qualified to make such statements about a patient's status. They believe that the doctor has only seen part of the patient's condition and may be missing key factors about how and why they are the way they are. One of the questions that could be asked would be "How long have you been treating this patient?" "Were you the treating doctor during the patient's past hospitalizations?".
Statement of opinion/theory
Once the doctor has stated his opinions such as "I believe that the patient is gravely disabled due to a mental disorder and cannot provide for his needs of food clothing and shelter. I find that the patient at this time suffers from psychosis NOS and autism spectrum disorder" the doctor's opinion will need to be backed up by statement of theory. Statement of theory is the doctor's reasoning behind his opinion. Counsel can help dissect the doctor's statement with question such as "why did you based your statement on the diagnosis", "what are the signs and symptoms of said diagnosis", "what behviours have you observed that made you arrive at your conclusions", "how do said symptoms affect the patient's ability to care for themselves", and "are there any other explanations that might have caused such symptoms", Once the statement of the theory has been made, counsel should move to examine the method of how the doctor arrived at his conclusions.
Explanation and support
Here is where counsel can dissect the doctor's statements. Too often expert witnesses rely on assumptions that a properly trained attorney can reveal and use to impeach the witness or demonstrate the witness is unreliable. Every statement that the witness makes should have some factual basis behind it.
Several points that can help counsel dissect the matter
Degree of certainty can be used to ascertain whether the psychiatrist is really confident behind his assumptions. "Do you think that this diagnosis really is the cause behind the patient's grave disability?" "Do you think that it is possible that x organic disorder may have caused that patient to deteriorate not said diagnosis?". If the answer is it is possible then the psychiatrist has opened the door for questioning their credibility.
If possible for counsel omissions in how the psychiatrist has ruled out other disorders. Ask if they have screened the patient for differential diagnosis such as anxiety or an organic illness. This can help find holes in the doctor's opinion and theory.
Challenging the psychiatrist's impartiality by finding out if there any degree of bias or influencing factors is also important during cross.
Area of expertise
This is a harder area to impeach the doctor as the doctor that is testifying is usually a psychiatrist who has trained and practiced for many years. In the rare case counsel may try to determine if the doctor is a specialist in a specific area of psychiatry and if that is relevant to the patient. For example of the conservatee is a minor and his or her treating doctor is a geriatric psychiatrist then this may be a possible ground for impeachment.
Together all of these can help counsel find flaws in the expert witness's testimony giving more weight to the conservatee's argument. But in the next section I will cover how the conservatee's statements can be used against them.
Juvenile Dependency and
Juvenile Dependency Court
2851 Meadow Lark Drive Dpt 10
San Diego, California 92123
Phone: (858) 634-1600
Office of the Public Conservator
5560 Overland Ave Ste 130
San Diego, California 92123
Phone: (858) 694 3500 ext 2