Podcasts

Psychiatry, Law, & Expert Witness Experience – Episode 38

By: Adam Bloomberg & Neil S. Kaye, MD

(Part 1 of 3)

Hello and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg.

Today, we’re speaking with American Psychiatric Association member, Dr. Neil Kaye, about the intersection of psychiatry, law, and cross-examination during trial.

Dr. Kaye is a clinical and forensic psychiatrist with more than 35 years of experience treating patients. He is an IMS Elite Expert, neuropsychiatrist, and pharmacologist—board-certified in general adult psychiatry, geriatric psychiatry, and forensic psychiatry.

Adam Bloomberg:

Dr. Kaye, thank you so much for joining us today. We’re honored to have you with us. I’ve checked out your bio and you’ve worked on some very noteworthy criminal and civil trials for both sides: plaintiff and defense. Why don’t we start with your background? So you’re an expert in psychiatry. Why don’t you tell us a little bit about the areas you specialize in?

Neil Kaye:

So within psychiatry, I do the whole field, but there are categories. So we have criminal law, civil law, family domestic law, and then regulatory law. And I work in all of those for both sides, but my favorite area is complex civil litigation. I find that the most interesting, the most challenging, the most fun for me, but I do them all.

Adam Bloomberg:

All right. So it sounds like we’ve got a lot here in that description. Why don’t you give us a brief rundown of the different types of specializations and the importance of each field?

Neil Kaye:

Sure. So in criminal law, we’re dealing with things like the insanity defense, criminal responsibility, competency to stand trial, the usual things like that. Civil law, the more interesting one may involve things like right to treatment and right to refuse treatment, but it also involves medical malpractice, tort law, civil damages, pain and suffering, and emotional distress claims. It also will include the fun area of head injury, which is a subspecialty of mine as a neuropsychiatrist. So we’re talking about how the brain affects behavior, cognition, emotions, and thoughts.

Neil Kaye:

Family and domestic, I hate to say it, but we call it the cesspool of law, so that’s everything that goes into family court. The better parts are persons in need of supervision, children in need of supervision. The uglier side is divorce and custody, which nobody really wins in. One side prevails, but it’s a tough area.

Neil Kaye:

And then regulatory law, often things like the oversight of institutions, such as hospitals, group homes, things like that. Another part of regulatory law would be patent law, which is a real super specialty that I do, or looking at the interpretation of certain language on packaging, as well as the regular and customer use of drugs and how they’re actually being used by clinicians. So I do all of that when I’m not seeing patients and treating people.

Adam Bloomberg:

So let me take you back a few decades. I assume it’s a few decades, but at what point in your academic career, or maybe you knew already as a child, did you know that you wanted to work in medicine and psychology?

Neil Kaye:

So I knew my interest was in psychiatry from my childhood. So I’m a third-generation physician. My dad was a psychiatrist. He was my hero growing up and I decided to follow in his footsteps. So medicine was always going to be something I was going to do. Third-generation at Albany Med, seventh member of my family to go to that medical college, so it’s a bad habit. That’s what we do in our family. We become physicians. I pursued psychiatry because that was a passion of mine from the very beginning, and I’m also lucky for me, it was natural. So I considered some of the surgical specialties, but they were too much work. For me, psychiatry came naturally. I could talk naturally. It’s easy for me. I got to teach patients and I like to listen. I’m a pretty good listener, which is important in this field.

Neil Kaye:

So it was really just my calling and I knew if I was going to be doing this for the next 40 to 60 years of life, I should do what is natural for me—so that was psychiatry. Then I got into this specialty area—besides treatment—of forensics. So forensics simply means the application of medical knowledge and principles to the law for the purposes of the law. And my first exposure was probably, actually, my dad who did some expert witness work.

Neil Kaye:

But really, in my residency, one of my mentors—a very famous psychiatrist, Dr. Larry Kolb—he was one of my first mentors and had been the editor of the Textbook of Psychiatry for the first 12 editions, I think it was. And he basically invented the diagnosis of post-traumatic stress disorder. He would take veterans and help defend their behavioral problems in court and took me along for some of those cases. I found that fascinating work, an opportunity to teach a different audience in a different setting and that really got me hooked on doing medical-legal work. So at the end of my residency, I actually did a fellowship, an additional year of training in law and psychiatry, and that really launched my career.

Adam Bloomberg:

We’ve found that the best experts are the best teachers in any environment. You’ve given us a lot here and very impressive. At what point did you get involved specifically with providing expert witness testimony?

Neil Kaye:

I actually started doing my first expert witness work as a resident, so 1985, ’86, somewhere in there, and I’ve been doing it ever since. I’ve always done expert witness work. In the early part of your career, you do a lot of hospital-based work, involuntary civil commitment in psychiatric units, and competency to stand trial then comes in. And then you hope to grow a civil practice to branch out into the more common tort law, medical malpractice, pain and suffering, psychic stress damage sorts of work. And then, if you’re lucky, you get into esoteric areas like patent law and I’ve been actually lucky to do all of that.

Neil Kaye:

Certainly, my first giant civil case was in 1990. A very big case in Boston—actually held the record for decades for the largest plaintiff award by a judge, federal court in Boston. It was a head injury case. The parking garage fell and crushed a gentleman who had a history of bipolar disorder, back then it was called manic depressive disorder, and I had a very interesting role in that case.

Neil Kaye:

I was not a testifying expert. I was part of the plaintiff team in teaching the lawyers about the difference between mental illness and traumatic brain injury, how to tell them apart, how to prepare that material for exam and cross-examination of the experts on both sides of the case, and also worked with the experts on the plaintiff’s side to prepare them in their testimony for court. It was a very successful case with a record verdict that stood for decades. That was my first giant civil case, and I’ve had a lot since then.

Adam Bloomberg:

Before your 1990 really big plaintiff case, that head injury case, and I’m going to preface this with when I talk to people that I know outside of the industry, they just assume, “Oh, lawsuits are really interesting, and they’re something we see on TV, and they happen in 30 minutes.” What was your first experience? Do you remember you going in, you’ve got this background in psychology, you’re now being asked to be in the courtroom? That very first trial you were ever a part of, give us some insight on what that was like and what you learned from that situation, just about how the process works out in a case, in a trial, in the courtroom.

Neil Kaye:

The good news is, in residency, I got forensic experience. I got a chance to see mentors and experts in the courtroom, so I got some firsthand opportunity to learn from people who were really good and get an understanding of things. Then I did this fellowship. So a fellowship’s a one-year additional educational experience to learn about expert witness work, how to do it, and what it is.

Neil Kaye:

It included going to law school for certain courses, so constitutional law as an example. We did that just like the regular law students would do. Didn’t have to do all of law school, fortunately, but the important things, constitutional law being one of them, because a lot of forensic psychiatric work is grounded in constitutional law, was one of the courses we had to take. So I got a chance to learn about lawyers, how they think, how their reasoning and approach is completely the opposite of that in medicine, and that was really important.

Neil Kaye:

In fellowship, we also started going to court with our faculty. We would watch them testify and then during the course of the year, we would start doing the testimony. They would prepare us for it and I found it exhilarating. I have to say most of my colleagues found it nerve-wracking, anxiety-provoking, but that’s just not me. I took to it like a fish to water or whatever. I just loved it.

Neil Kaye:

For me, the courtroom was really like a sporting event. It was sparring. It was the chess game of knowledge. And what I tell people, later in my career, of course, I’ve done teaching of forensics both at law school and to medical students and fellows, and I explained the opportunity to teach and to know this material is incredible and that the mental health experts, psychiatrists in particular, are the most difficult and challenging experts lawyers have to deal with.

Neil Kaye:

Lawyers can learn six moving parts of a knee, cross-examine an orthopod and do a pretty good job pretty easily. The mind and the brain, not so easy. It’s extremely complex, and you can make a mistake of challenging a psychiatric expert too much and get yourself into trouble very quickly if you’re not an extremely seasoned lawyer, because the material is just very, very complex.

Neil Kaye:

I also like to prepare. In fact, I like to over-prepare. One of my rules is I’m going to know more about the person and the issue than anybody else in the courtroom so that whatever I’m asked, I have an answer available. So prep, prep, and then more prep. I insist that lawyers who hire me pay for and set aside time that I find is adequate to practice the questions, the responses, to prepare things so that they go smoothly. They go the way we need them to go because I’m also aware that we are dealing with very complex material and we need to get it delivered to the trier of fact, a jury or judge or panel or magistrate at a level that they can digest, at a pace that they can digest. And people talk about the theatrics of the courtroom but rehearsing and practicing to make that come across is absolutely critical to the work.

Adam Bloomberg:

Speaking of theatrics in the courtroom, there are some fantastic trial lawyers who will be on the other side of you in cases. What’s that like to be cross-examined by a very good lawyer who knows a lot about the case, a fair amount about the science? And opposing counsel’s goal is to get the jury to see the case through their lens. What’s that like being cross-examined by a really good trial attorney?

Neil Kaye:

So I love it. I actually prefer it if everybody in the case, the experts and the lawyers on both sides, are at the top of their game. The reason I like it is there’s going to be less nonsense and less BS about things. People are going to get to the point to what needs to be done and the decorum is going to be appreciated. The dance goes better.

Neil Kaye:

There is a dance in court. And one of the dances that happens, especially with a good lawyer and a good expert is who’s the leader of that dance routine. The goal of each side is to be in control, to keep the focus on you. So the lawyer who’s going to be cross-examining me wants the jury and everything focused on her. I want the focus on me and the dance and how that plays out is critical. And again, to me, it’s a challenge—and I find it fun.

Neil Kaye:

And the way I do it, my basic technique is that of a teacher. I think of the jury, the trier of fact as no different than my residents. If I can teach them the science that I know, they can apply it to the facts of the case as are presented through the other witnesses, and then they can go to deliberation and do their job. I don’t really care about the outcome of the case. I don’t mean to sound crass about that, but my work is my work and my opinion should be my opinion, regardless of which side hires me. Sometimes I don’t even know which side has hired me. I’m there to do the teaching, to get it across, and the facts are what they are. But if I can teach the science, they can use the facts, and they’re going to get to the right conclusion.

Adam Bloomberg:

When you were saying that, I was thinking about really good trial attorneys who are doing a Q&A in the cross, they just want the witness to say “Yes” or to say “No” to something. And it’s a series of questions, one after the other, where the question doesn’t make any sense, but they try to pin you down to a yes or no. So, that’s got to be a challenge to work with in the courtroom when you’re being crossed.

Neil Kaye:

It is a challenge and attorneys are taught try to pin us down to yes and no. And while they have a right for that, it’s not always possible to answer a question with just a yes or a no, and good experts know that and learn how to explain why you can’t simply say yes or no. That it’s not that straightforward in this discipline. And I would say, if anything, in psychiatry and the brain and behavior, it’s even more difficult. We have more gray areas. A lot of what we do is on a continuum or on a spectrum.

Neil Kaye:

So, whether or not someone has pain isn’t simply yes or no. It’s also how much pain, how frequently, how intensely, and how does it affect them functionally. These are really the more important questions rather than simply yes, they have pain. No, they don’t have pain. So we want to make sure that as experts that we get to answer fully and completely. And a lot of times, the cross-examining lawyer will try to shut that down and block that.

Neil Kaye:

Obviously, if you had direct first, you have often had an opportunity to really answer that. In your cross-examination, you can refer back to what you said on direct. Remind the jury that you were asked that, and you had a lengthy answer—not just a yes or no answer. If really necessary, there of course can be redirect. Redirect should be brief generally, and I’m not a great fan of it. Hopefully, we’ve been clear enough already. And then in very rare cases, I have to remind everybody that I’ve taken an oath to tell the whole truth and that the whole truth is going to require more than just a yes or no.

Adam Bloomberg:

Right.

Neil Kaye:

And that under my oath to the court and to the process, I have to be allowed to expand on my answer.


Thank you to Dr. Neil Kaye for speaking with us today, and a special thanks to our listeners. At IMS, we’re trusted to deliver consulting services to the most influential global law firms early with pre-suit and investigation services, then in litigation during discovery, arbitration, and trial. It’s been our privilege to serve our clients on more than 20,000 cases and over 2,000 trials. Be sure to subscribe to our podcast and join us next time on the IMS Insights Podcast.


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