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Planning, writing, and editing forensic psychiatric reports
International Journal of Law and Psychiatry 35 (2012) 412–417
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International Journal of Law and Psychiatry
Planning, writing, and editing forensic psychiatric reports ☆ Phillip J. Resnick a,⁎, Sherif Soliman b, c a b c
Case Western Reserve University, School of Medicine, 10524 Euclid Ave., Cleveland, OH 44106, United States Case Western Reserve University, School of Medicine, United States Northcoast Behavioral Healthcare, 1756 Sagamore Rd., Northfield, OH 44067, United States
a r t i c l e
i n f o
Available online 3 October 2012 Keywords: Report writing Forensic reports Forensic opinion Report organization
a b s t r a c t Forensic psychiatric reports are often the final product of a psychiatrist's work in a particular case because most cases do not go to trial but instead are settled through negotiation or plea bargaining. This article addresses the planning, writing, and editing of forensic reports. Planning a report requires thorough data gathering, and thoughtful organization of the report into specific subheadings. Throughout the report there should be a clear separation of factual data from professional opinions. Ten pitfalls of report writing are identified. The most important part of the forensic report is the opinion section. The evidence for the opinion should begin with the strongest points and the reasons supporting the opinion should be completely explained. Finally, ethical issues are addressed. © 2012 Elsevier Ltd. All rights reserved.
1. Introduction Report writing is an essential skill for forensic psychiatrists to master. Courts, attorneys, administrative agencies, and other readers rely upon forensic psychiatrists to articulate complex medical concepts in a clear, concise manner. Forensic psychiatric reports must translate information from the language of medicine into comprehensible language that elucidates the relevant psycho-legal issues. The success or failure of forensic psychiatric reports ultimately turns on how effectively they communicate information to courts. Surveying decision makers who routinely rely upon psychiatric reports is one way to measure the reports' effectiveness. A survey of industrial accident commissioners in California showed that compared to other physicians' reports, psychiatrists' reports were viewed as generally weaker, less understandable, more subjective, more complicated, and more unscientific (Pollack, 1969). Fortunately, more recent data suggests that the quality of forensic psychiatric reports has improved. A recent survey of 35 California judges examined their perception of the quality of Competence to Stand Trial evaluations. Most judges were “very satisfied” with the reports. Further, most of the judges surveyed preferred that psychiatrists conduct the evaluations (Borrello, 2010). Writing an effective report begins with careful consideration of the legal issue and the role of psychiatric expertise in addressing the legal issue. Merely grafting a legal opinion onto the end of a clinical report ☆ Portions of this article are taken with permission from Resnick, P.J. and Soliman, S. (2011) “Draftsmanship,” The Psychiatric Report: Principles and Practice of Forensic Writing. Buchanan, A. and Norko, M.A. Ed. Cambridge University Press. Pp 81–92. ⁎ Corresponding author at: Case Western Reserve University, School of Medicine, 10524 Euclid Ave., Cleveland, OH 44106, United States. Tel.: +1 248 390 6685; fax: +1 216 844 1703. E-mail address: [email protected] (P.J. Resnick). 0160-2527/$ – see front matter © 2012 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.ijlp.2012.09.019
is inadequate. Clinically relevant factors such as developmental history, past symptoms, and treatment recommendations may or may not be legally relevant. Experts should organize their reports to most clearly address the psycho-legal issue rather than strictly adhering to a unitary structure for all reports (Reid, 2011). The content of the report will also be guided by ethical considerations of objectivity, honesty, and respect for individuals. This article will discuss each of the stages of report writing: planning, writing, and editing. We will review relevant ethical issues and offer recommendations for each stage of report writing. We will discuss common pitfalls of writing reports and how to avoid them (Table 1). 2. Planning and preparation Good planning is the key to success. The planning stage will determine whether to write a report, what information will be included in the report, and how it will be organized. Experts should pay special attention to planning their opinions and marshalling the supporting evidence for those opinions. The planning stage is a good time to consider important ethical issues that the report raises such as objectivity, honesty, and respect for individuals discussed in the report. The planning stage should proceed with data gathering, considering the audience, organizing the report, outlining the report, and planning the opinion. 2.1. Ethical considerations The American Academy of Psychiatry and the Law's (AAPL) Ethical Guidelines for the Practice of Forensic Psychiatry (AAPL, 2005) contain four key ethical principles: confidentiality, consent, honesty and striving for objectivity, and qualifications. Considering each of these principles
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Table 1 Common pitfalls in report writing. Pitfall
Examples/comments
Tips for avoiding
Raising the bar unnecessarily
“My evaluation was thorough and complete.”
Using pompous or haughty language.
“I am a world renowned expert.”
Using absolute language such as “always,” “never,” “all,” or “none.” Using hedge words like “apparently,” “seems to,” and “in a sense.” Appearing to advocate for the retaining party in communications with the retaining attorney. Labeling a report a draft, confidential, or a work product.
“No reasonable psychiatrist would ever fail to check a lithium level.” “Mrs. Jones was apparently walking home at the time of the robbery.” “Dear Bob, I hope this helps Adam finally get justice.”
“I interviewed Mr. Smith for six hours, reviewed his medical records from 1981 to 2012, and interviewed his wife.” “I have been practicing for ten years, have published 40 papers, and have received 10 awards.” “Dr. Jones fell below the standard of care in failing to check the lithium level.” “Mrs. Jones told police that she was walking home at the time of the robbery.” “Dear Mr. Smith: Attached please find my report.”
Making snide comments about opposing experts or parties. Using legal terms or the word “legal” or “legally.”
Language that makes your report appear to be the product of a “mill.”
Using pregnant negatives
Using preambles which weaken your writing. Using false emphasis such as the words “clearly” or “obviously.”
This makes it appear as though the psychiatrist is trying to hide information from the court or the opposing party. “Dr. May's failure to review the medical records from 1988 renders her opinion useless.” “From a legal standpoint, Ms. Jones is not competent.” If the psychiatrist uses legal terms, cross examining attorneys will likely ask the psychiatrist to provide precise definitions. “Dictated not read.”
A pregnant negative is a negative statement that leaves open additional questions. “There were no obvious delusions.” (Were there subtle delusions?) “To be fair, Ms. Smith has severe depression.” “The defendant was clearly malingering.” The point should be made clear by the supporting evidence. Also, using bold text, underlining, or italics should be avoided because it shouts at the reader and attempts to shortcut the logical process by using formatting rather than evidence to make a point.
when preparing the forensic report will reduce the risk of inadvertently violating these principles during deposition and trial testimony. Confidentiality, the clinician's obligation to hold in confidence information learned during evaluation and treatment, should be maintained to the extent possible. Experts must explain at the outset of the evaluation the foreseeable disclosures and, if known, how the information disclosed will be used. If the psychiatrist has not treated and will not be treating the evaluee, he/she should make it clear that he/she is not the evaluee's physician and a doctor–patient relationship does not exist. This notice should be documented in the forensic report. To the extent possible, the psychiatrist should guard against any unauthorized disclosure of information contained in the report. Informed consent is a core principle of medical ethics. Informed consent to evaluations and procedures must be knowing, voluntary, and competent. Informed consent reflects respect for the individual. Informed consent should be obtained when “necessary and feasible” (AAPL, 2005). In some cases such as court ordered evaluations, informed consent is not required. In these cases, inform the person of the nature of the evaluation and advise them that, if they decline to participate, a report will nonetheless be required and will specify their refusal. If the evaluee lacks capacity to consent to the evaluation, this information should be included in the report. Striving for objectivity is critical in forensic evaluations and reports. In contrast to treating psychiatrists whose primary role is to advocate for the health and welfare of their patients, forensic psychiatrists objectively describe their findings as part of the search for truth. That truth may or may not be in the evaluee's best interest. Honesty requires the psychiatrist to accurately report all relevant information and clinical findings, regardless of the psychiatrist's employer. Objectivity demands that significant information that does not support the psychiatrist's opinion be included in the report. Honesty and objectivity are not only ethical requirements, but also make reports more credible. The Honorable Gerald Lebovits, a judge
Avoid preparing multiple drafts. If it is necessary to make substantive changes, save the original and be prepared to explain the rationale for any changes. “Dr. May did not review the 1988 records, which are relevant because…” “Ms. Jones lacks the capacity to communicate rationally with her attorney.” If you need to use legal terms, be sure to be familiar with the definitions. Some boilerplate language is necessary (e.g., statement of non-confidentiality.) Make it specific rather than generic. For example, Instead of writing, “I explained to the defendant,” write, “I explained to Mr. Jones…” “There was no evidence of delusional thinking but Mr. Smith was very suspicious of the motives of others.” “Ms. Smith has severe depression.” “The defendant was malingering as evidenced by…”
in New York City Civil Court, Housing Part and adjunct professor at St. John's University School of Law advises attorneys to be credible and “maintain integrity” in preparing legal briefs and other filings. He writes that advocates are credible if they concede points when appropriate, discuss opposing arguments, and avoid overstating their points (Lebovits, 2010a). Supreme Court Justice Antonin Scalia and editor in chief of Black's Law Dictionary Bryan Garner advise attorneys to be “scrupulously accurate” in their briefs and arguments. Psychiatrists should do no less. The decision to include or omit a piece of information is sometimes fraught with ethical pitfalls. Both the language chosen and the data selected may indicate overt or subtle bias. A detailed account of current substance abuse is relevant to an airline pilot's fitness for duty, but the fact that the pilot used marijuana once as an adolescent is not likely to be relevant and may be prejudicial in a report regarding the impact of his depression. In deciding whether to include information that is damaging or embarrassing, carefully weigh the probative value of the information against its prejudicial effect. Working within the adversary system places several pressures on these ethical tenets. This example illustrates some of these pressures. Dr. Jones, who has a primarily biological practice, is retained by Attorney Smith, the plaintiff's attorney in a malpractice case, to offer an opinion regarding another psychiatrist's off label use of a mood stabilizer. Deposition testimony later reveals that the defendant psychiatrist also conducted psychotherapy sessions with the plaintiff. Attorney Smith calls and asks Dr. Jones to offer an additional opinion regarding whether the defendant psychiatrist's conduct of the psychotherapy fell below the standard of care. Mr. Smith adds that there is a filing deadline in three days. Mr. Smith asks Dr. Jones to provide a brief e-mail with his opinion and helpfully offers to “have my paralegal draft the opinion in the form we need.” This raises several ethical concerns. First, Dr. Jones must determine whether he has the expertise to offer this opinion. Second, Dr. Jones must determine whether he can devote the time
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necessary to thoroughly assess this question in three days. Third, Dr. Jones should reject the attorney's offer to draft the opinion because it may compromise the objectivity of the opinion. Thoughtful consideration of the key ethical issues of confidentiality, consent, honesty and objectivity, and qualifications before writing the report is critical. Ongoing reflection on the ethical questions before, during, and after writing the report will help the psychiatrist remain vigilant about the pressures posed by working within an adversary system. 2.2. Data gathering All of the necessary information should be collected before writing the report. This includes notes from interviews, referral letters, medical records, depositions, police reports, and relevant literature. This is also a time to take a final inventory of the available information. Important information that is missing should be sought. If it is not received, its absence should be noted in the report. Psychiatrists should keep a list of all sources of information. This list will eventually be integrated into the written report. In the meantime, it keeps track of information and helps determine whether additional documents should be requested. The list should be numbered in the report (Guthiel, 2009). The list can be organized chronologically or by the types of information. For example, all police reports or all medical records can be grouped together. Each listed item should be described in sufficient detail. For example, a clinical interview should include the date, place, and duration of the interview. In describing medical records, the dates, author and/or institution should be identified. Instead of listing, “Mrs. Smith's past medical records,” specify, “Mrs. Smith's medical records from Smallville General Hospital from January 2, 2012 until January 8, 2012.” When listing sources of information, avoid using vague terms to describe sources such as “various medical records.” Such language makes the psychiatrist appear careless and will make it difficult to testify without referring to the original records. A complete list of sources of information helps achieve “scrupulous accuracy” and facilitates accurate testimony. Any professional literature cited in the report should be listed as a source of information. When citing articles, it is critical to be familiar with the latest literature in the area. The entire report can be undermined if the literature cited is obsolete or has been contradicted by subsequent authority. When referring to textbooks, it is important to cite the most recent edition. Even if the authority is cited to support information that has not changed, the use of an older edition can make the psychiatrist appear out of touch with new developments in the field (Babitsky & Mangraviti, 2002). 2.3. Consider the audience No diplomat would embark on a journey to a foreign land without having some understanding of the language, culture, and customs of the land. Similarly, a forensic psychiatrist must consider to whom he is writing, the purpose of the report, and how it may be utilized by the recipient. Even the most carefully prepared report is useless if it does not convey relevant information to the target audience. Reports prepared for different readers may require different style and content. Even a clearly written report can yield poor results if the psychiatrist fails to consider the audience. For example, forensic psychiatry fellows are taught to define medical terms and describe the purpose of all medications mentioned. This is good practice in writing for a legal audience, but not when writing for medical readers. We have sometimes encountered reports prepared by forensic psychiatry fellows consulting to treating physicians that described the purpose of prescribed medications. Such an author says, in effect, “You, Dr. Treater, are currently prescribing Mr. Smith olanzapine, which is an antipsychotic used to treat Schizophrenia, an illness characterized by hallucinations, delusions, or disjointed thinking.” This language is superfluous at best and
may be viewed as condescending by the psychiatrist who is seeking consultation. 2.4. Organizing the report In their classic work, The Elements of Style, Strunk and White (Strunk & White, 2000) advise authors to “choose a suitable design and hold on to it.” The design, the basic skeleton of the report, is dictated by the purpose of the report. Reid advises psychiatrists preparing forensic reports to “fit the format to the needs of the case and the reader.” He properly notes that the format and style of the report vary depending upon the purpose of the report, intended audience, and jurisdictional rules (Reid, 2011). In selecting a design, decide which data are important and how to convey that information in a clear manner. Consider the referral issue, the relevant legal standard, the audience, and the legal requirements for the report in the relevant jurisdiction. Some jurisdictions require that specific information be included in certain types of reports while others provide general guidance or none at all. At a minimum, the report should sufficiently articulate the opinions, the manner in which the psychiatrist reached the opinions (records reviewed, examinations conducted, and people interviewed), and the bases for the opinions. For example, a report prepared to address a defendant's sanity at the time of the act should include a description of the alleged offense and the symptoms the defendant was experiencing at the time of the offense. This data will inform the psychiatrist's opinion regarding the sanity issue. In contrast, the core of a report addressing competence to stand trial is the defendant's current mental state and their ability to understand the proceedings and work effectively with an attorney. 2.5. Outlining the report Scalia and Garner advise attorneys to outline their briefs before beginning to write. They note, “Eliminating this step is false economy. The time saved will be more than counterbalanced by the time consumed in deletions and revisions that will be required if you charge ahead with no plan in mind” (Scalia & Garner, 2008, p70). The outline reflects key decisions about the structure of the report, the types of information to be included, the opinions and supporting evidence, and the logical progression of the report. It allows the psychiatrist to clarify opinions, choose an appropriate format, and preemptively eliminate redundant and unnecessary information. Outlines are particularly useful when dictating reports because they impose an organization upon the writer. The outline may be detailed. It may contain each heading in the report and the data to be discussed in each section. For example, an outline of the Educational History could include behavioral problems, special education, highest level of education attained, and academic performance. The use of headings to break up the body of the report into smaller sections allows the reader to easily find information within the report. Attorneys strongly favor the use of such headings. For example, instead of a single large section labeled “Personal History,” it is more reader friendly to subdivide a lengthy personal history into sections such as “Educational History,” “Relationship History,” “Employment History,” and “Legal History.” The choice of headings should be tailored to the particular legal issue. For example, appropriate headings in a sanity report might include the defendant's relationship to the victim, events preceding the crime, the defendant's account of the offense, and the defendant's mental state at the time of the offense. Having a heading labeled “Defendant's Account of the Crime” reduces the need to continually begin each sentence with “The defendant stated…” The most important section of the outline is the opinion. Begin by listing each of the opinions and noting the factors supporting each opinion. This process is called “mapping” the opinion (see example in the “Opinion” section below). Next, determine the order in which
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to state the opinions and the order of supporting evidence. The logical progression of the opinion is determined by the referral questions and the legal standards. Let's assume, for example, that a forensic psychiatrist is performing a sanity evaluation in a jurisdiction in which the sanity statute requires 1) the presence of a mental disease that causes the defendant to 2) lack substantial capacity to appreciate the wrongfulness of his actions or to 3) be unable to conform his conduct to the requirements of the law. The opinion section should address each of the three issues. After determining the order of each opinion, the psychiatrist should look carefully at the supporting evidence for each opinion. List the evidence for each opinion in order from strongest to weakest. In a lengthy list of evidence, consider eliminating the last few points. Scalia and Garner advise attorneys that “scattershot argument is ineffective” and state that the “very most important” step in any presentation is “selecting the arguments that you will advance” (Scalia & Garner, 2008, p22). A skillful cross examiner may spend considerable time discrediting the weakest points to make the entire opinion appear weakly supported. 3. Writing the report If the psychiatrist has spent adequate time in planning the report, the writing stage should go smoothly. The four principles of good writing are clarity, simplicity, brevity, and humanity. We will offer specific suggestions to apply these principles to forensic psychiatric report writing. Try to dictate or type the report immediately after the evaluation when the information is still “fresh.” 3.1. Clarity Scalia and Garner admonish their attorney readers to “value clarity above all other elements of style” in writing legal briefs (Scalia & Garner, 2008, p107). Clarity ensures that the report will be understood. Ambiguous reports may deliberately be mischaracterized by opposing attorneys during cross examination. Clarity requires good formatting, adequate information, appropriate word choices, good grammar, and clear attribution. Clarity begins with good formatting. Judge Lebovits recommends using a 12 point serif font (such as Times New Roman, Courier New, Garmond), and maximizing the amount of white space in the document (Lebovits, 2009b). White space is the area on the page where no text appears such as the margins and the space around headings. It does not include the space between lines. His recommendations for increasing white space include using 1.25 inch margins, avoiding long paragraphs, using headings and subheadings, adding a line between sections, using bullet and numbered lists, using left justified text, and avoiding block quotations or adding a line after block quotations. Numbering the pages and indicating the total number of pages in the report (“page 7 of 9”) is helpful to the reader. Reports should be self sufficient. Consequently, the writer should consider summarizing any critical records in the body of the report. Without referring to other documents, the reader should be able to understand how the opinion was reached from the data in the report. We generally prefer summarizing records in a separate section. Each record summarized should begin a new subsection. This allows the reader to quickly refer back to the summary of a source of information. However, sometimes brief summaries can be smoothly incorporated into a narrative of events in order to increase readability without compromising clarity. For example, “Mr. Jones said he was admitted to Smallville Psychiatric Institute in 1988 for depression. He said he was treated with ‘some drugs.’ The discharge summary by Dr. Smith of Smallville Psychiatric Institute indicates that Mr. Smith was admitted from June 4, 1988 to July 13, 1988 after threatening suicide. He was diagnosed with Melancholic Depression and treated with the antidepressant nortriptyline 150 mg at bedtime (an average dose).”
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In the diagnostic section of your forensic report, the psychiatrist should never write “rule out.” “Ruling out” a diagnosis is appropriate to write upon admission to a hospital. However, the legal reader is not going to rule out any diagnosis. If the psychiatrist has a tentative diagnosis but is not sufficiently confident to state it, he/she can precede it with the word, “probable.” Use only diagnoses listed in the latest Diagnostic and Statistical Manual of the American Psychiatric Association. Follow each diagnosis with a brief paragraph showing how the symptoms meet the DSM criteria. Within the body of the report, the writer should identify the source of each item of information. If the psychiatrist is discussing several pieces of information from one source, such as an interview, it is sufficient to identify the source at the beginning of each paragraph and indicate when a new source of information is used. For example, “Mr. Jones reported he has never used cocaine. However, his records from Smallville Psychiatric Institute indicate he had a positive urine drug screen for cocaine on May 4, 2002.” To avoid sounding monotonous, don't continually write, “Mr. Jones reported.” Instead, vary the terms used e.g., “Mr. Jones stated, Mr. Jones told me.” It is useful to clarify inconsistent data in a forensic report. For example, “Although Mr. Jones stated that he was diagnosed with PTSD while in Elsewhere Hospital in 2009, the discharge summary from Elsewhere Hospital dated June 13, 2009 reports instead a final diagnosis of malingering. When Mr. Jones was confronted with this inconsistency, he said he must have been mistaken in his recollection.” Avoid ambiguity in word choice and sentence construction. For example, “The plaintiff has discussed your proposal to fill the drainage ditch with his partners.” Contranyms should be avoided. Contranyms are words that have two opposite meanings. For example, sanction may mean both to “give permission” or to “disapprove.” Use the correct verb tense. In the report of the interview put things in the past tense. For example, “Mr. Jones described his father as passive and weak.” The mental status observations should also be in the past tense. For example, “Mr. Jones was neatly dressed and cooperative.” The opinion section should be in the present tense. For example, “It is my opinion with reasonable medical certainty that Mr. Jones is competent to stand trial.” The review of medical records is also usually best put in the present tense. For example, “The doctor's progress note on January 4 states…” Make correct word choices. For example, “feel” is often incorrectly used, such as in, “The defendant felt he was unjustly arrested.” Feel refers to visceral descriptions. So it is proper to say that the defendant felt dizzy and nauseated. “Think,” “believe,” and “state” refer to intellectual statements. Thus, the above statement should say, “The defendant believed that he was unjustly arrested.” "Guilty" carries a stronger connotation of blameworthiness than "liable." One is guilty of a crime but liable for a civil wrong (Lebovits, 2005). 3.2. Simplicity Simplicity means avoiding unnecessarily complex or specialized terms, phrasing, and sentence structure. It begins with voice, continues with word selection, and ends with writing style. The goal should be to avoid jargon and excessive formality. Instead, use simple, crisp English. The report writer should always use the active voice because using the passive voice makes the report harder to read. For example, instead of saying “the psychiatrist was repeatedly interrupted by the evaluee,” say “the evaluee repeatedly interrupted me.” Refer to yourself in the first person. Some psychiatrists refer to themselves in the third person. This is awkward and, as Babitsky and Mangraviti point out, the cross examiner can use this language to make the expert look silly or pompous (Babitsky & Mangraviti, 2002). Multi syllable words reduce readability, tax the reader, and decrease comprehension. Sentences of 20 to 25 words have the greatest readability. Use common words. Rather than writing “remuneration,” use “salary.” Instead of saying, “subsequent to,” say “after.” Many jurors are confused by the phrase “subsequent to.” In constructing sentences,
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eliminate meaningless introductions. Do not write, “It is possible that….” or “There are….” For example, do not write, “There are two basic rules that psychiatrists should follow in preparing reports.” Instead write, “Psychiatrists should follow two basic rules in preparing reports.” Plain language should be used in the report. The use of overly formal language both confounds the meaning of the report and communicates a lack of confidence. Do not use archaic language such as “aforementioned.” Instead of "enclosed herewith please find....," say “I enclose....” Simplicity means omitting jargon. While medical terminology facilitates communication among medical professionals, it obfuscates communication with the non-medical reader. Instead of stating, “Mr. Smith's mood was euthymic with a full affect. His thought process was linear,” write, “Mr. Smith's mood was neither depressed nor elevated and he displayed an appropriate range of emotional expression. He responded relevantly to my questions and his thoughts were logical and easy to follow.” When medical terms can not be avoided, they should be clearly defined. Even terms that seem basic can be misleading to attorneys. For example, schizophrenia is commonly misunderstood by the public to mean having multiple personalities. The lay reader is not likely to be familiar with prescribed medications. Therefore, the first time a medication is mentioned, describe its use, route of administration (if not oral), and consider characterizing the dose being given as low, average, or high. For example, instead of stating, “sertraline 150 mg qD,” write “sertraline 150 milligrams daily (antidepressant, average dose).” The report writer should have the confidence to let points speak for themselves. Do not attempt to convince the reader by prefacing statements with conclusory terms such as “clearly,” “certainly,” or “obviously.” Avoid embellishments like italics, underlining, or bold font. These techniques suggest that the psychiatrist wants to emphasize a fact but doesn't know how to do so. They also shout at the reader. It is better to express thoughts through content, not style (Lebovits, 2009a). 3.3. Brevity The French philosopher and mathematician Blaise Pascal once wrote, “I have only made this letter longer because I have not had the time to make it shorter (Pascal, 1656).” It takes more time and thought to succinctly address the relevant issues than it does to write a lengthy report that simply recites all of the information learned about the case. Brevity begins with carefully planning the topics and opinions to be covered in the report. It continues with clear writing and concludes with careful pruning of unnecessary information from the finished product. First, the writer should plan the depth and breadth of the report. Determine which topics are essential to discuss and which are unnecessary. For example, a detailed history of the evaluee's sexual practices is usually unnecessary in a Competence to Stand Trial report but highly relevant in an assessment of sexual offender recidivism risk. Next, determine whether specific pieces of information within each topic area are relevant. The next step is careful writing. Strunk and White admonish writers to “omit needless words.” They state, “A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts” (Strunk & White, 2000, p23). Avoid unnecessary words and redundancy. Reid emphasizes the importance of brevity in psychiatric reports and suggests that psychiatrists resist “the temptation” to write everything they know about the subject unless the referring party requests an “exhaustive treatise” (Reid, 2011). The editing stage is the last opportunity to make certain the report is no longer than necessary to address the legal issue. Scalia and Garner advise attorneys that brevity requires the “ruthlessness” to eliminate irrelevant material (Scalia & Garner, 2008, p98). Forensic psychiatrists should be equally “ruthless” when taking a red pen to their reports.
3.4. Humanity We must not lose sight of the fact that psychiatric reports are ultimately about people, their thoughts, their emotions, and their behaviors. As Griffith and Baranoski observed, “Forensic reports must contend with several human voices seeking to be heard” (Griffith & Baronoski, 2007). Using quotations of the evaluee's language animates writing. Quotations allow the person to speak directly to the reader. Using quotations is particularly important in conveying a defendant's account of the crime. In addition to demonstrating humanity, allowing the different human voices to be heard in the reports promotes objectivity by demonstrating that the psychiatrist considered each person's perspective in forming their opinions. One of the easiest ways to maintain humanity is to avoid dehumanizing language. For example, instead of continually referring to the individual being evaluated as “the evaluee,” “the defendant,” or the “plaintiff,” refer to the person by name. Use the person's surname preceded by the appropriate title such as Mr., Ms., or Dr. This approach sends two messages. First, it communicates respect for the person being evaluated. Second, it indicates that the report is about an individual rather than a generic report. The psychiatrist should avoid using pejorative language towards the evaluee. Rather than saying, “Mr. Smith is a liar as evidenced by the fact that he told the police he did not rob the store but admitted it an hour later,” write, “The fact that Mr. Smith told the police he robbed the store an hour after denying it suggests that he was consciously misrepresenting his role in the offense during his first interview with officers.” Using pejorative language violates both the principles of objectivity and humanity. 3.5. The opinion section The opinion is the most important part of the report. Thus, it may require 50% of the writing time even if it makes up only 20% of the total report. Thus, the content of the opinion should be carefully planned. First, address the questions posed in the referral. Then prepare the opinions and the supporting evidence. We prefer labeling this section simply “Opinion” to convey that we are stating expert opinions. Designations such as “discussion” or “formulation” suggest speculation rather than a professional opinion. In organizing the Opinion Section, psychiatrists should jot down all their thoughts and then decide how to organize them (mapping the opinion). The following list shows that the defendant knew the wrongfulness of his act in an insanity case. Here are the psychiatrist's initial thoughts in random order. Hid his gun Wiped away fingerprints Apologized to the victim Waited until dark Said “sorry” to witness Cleaned up blood Wore gloves Expressed remorse to police Wore a ski mask Organizing the evidence will make it more convincing and easier for the jury to recall. Upon reflection, these points could be arranged into the following three clusters: Avoided detection Gloves Ski mask Darkness
Removed evidence Fingerprints Cleaned blood Hid gun
Expressed remorse To police To witness To victim
The writer should begin each section of the opinion by stating the opinion, followed by a list of supporting evidence starting with the strongest point. Don't begin a sentence with the evidence and
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conclude with the opinion. For example, rather than saying, “In view of a, b, c, my opinion is x,” it is better to say, “My opinion is x.” The following evidence supports my opinion: a, b, c. This approach makes the basis for each opinion clear and is preferred by legal readers. In formulating the supporting evidence for the opinion, be certain each point has a solid factual basis. Then, be certain it does, in fact, support the opinion. The psychiatrist must be clear about the relevant legal standard and resist the temptation to make an illogical leap from clinical symptoms to a legal conclusion. For example, it is incorrect to write, “Mr. Smith is incompetent to stand trial because he is grossly psychotic.” A better approach would be: “Due to his disjointed thinking, a symptom of schizophrenia, Mr. Smith is unable to testify relevantly or communicate critical information to his attorney.” In this manner, the clinical symptoms are tied to the legally relevant standard. Each piece of supporting evidence should be fully explained. The reader should not have to guess why the point supports the conclusion. Assume for example that a psychiatrist is marshalling evidence to support the opinion that the defendant, Mr. Jones, knew the wrongfulness of robbing a bank. Don't write, “Mr. Jones wore gloves.” Instead, write, “Mr. Jones wore gloves on a hot summer day. He acknowledged to me that he did not want to leave fingerprints, which indicates that he knew he was engaging in illegal conduct.” We call this “A to Z reasoning” because it shows the reader each step in your reasoning. After listing the supporting evidence, the psychiatrist should organize the list from strongest to weakest points. If the strongest points are not persuasive, the weaker points are certain to fail. Then, look closely at the last point and consider eliminating it. The writer should continue examining and eliminating the weakest points until he/she is confident that all of the supporting points are factually based and logically sound. Scalia and Garner accurately observe, “On the surface, it might seem that a ten point argument has been overanalyzed. In reality, it has been underanalyzed.” (Scalia & Garner, 2008, 23). If there is more than one version of events, the psychiatrist should consider offering alternative opinions for each version of the facts. Consider, for example, a malpractice case involving an inpatient suicide. The decedent's wife testified that she told the defendant doctor, one hour before the suicide, that her husband was depressed and planning suicide. The defendant doctor testified that he did not speak with the decedent's wife on the day of the suicide and added that, had he known that the decedent was contemplating suicide, he would have placed the decedent on suicide precautions. The expert can offer two opinions, depending upon which account the trier of fact credits. Refraining from opining which account is true will make the expert report more credible. The psychiatrist should avoid addressing the ultimate issue (the legal issue being decided) directly in the opinion. Instead, limit the opinion to the psycho-legal issue. For example, instead of writing, “Mr. Jones was insane at the time of the act,” write, “It is my opinion, with reasonable medical certainty, that Mr. Jones was suffering from a severe mental disease, schizophrenia, which caused him to not know the wrongfulness of killing Robert Smith on November 3, 2010.” Ultimate issue opinions are not preferable because they make it appear as though the psychiatrist is usurping the role of the trier of fact and dictating the outcome of the case. Occasionally, ultimate issue testimony is required by judges or by jurisdictional rules. 4. Editing The editing stage is among the most difficult because it forces the writer to look critically at his/her own work. Review the organization, writing, logic, and typography of the report. Begin by reviewing the organization of the report. Determine whether the organization selected is clear, simple, and reader friendly. It should be easy for the reader to find the opinions and the supporting evidence as well as specific pieces of information within the report
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(i.e., a summary of the evaluee's records from St. Elsewhere in 1998). Next, review the organization of each section for readability. Review the writing for clarity, simplicity, brevity, and humanity. When dictating, it is easy to be verbose, to use unnecessary introductory words, and to allow unnecessary modifiers such as “certainly” or “clearly” to slip into the report. These errors can easily be corrected through careful editing. Read and reread the opinion. Make certain that the report clearly addresses the specific legal issue. Typographical and grammatical errors are easy to overlook. Reading the report backwards or out loud can help to bring out such errors. In addition, consider having a colleague proofread the report for grammatical or typographical errors. 5. Conclusion Writing clear, concise reports is an essential skill for forensic psychiatrists. Like all successful endeavors, an excellent report begins with a solid plan. During the planning stage, the psychiatrist should reflect upon the legal question and how best to organize the report to communicate opinions about the issue. Next, strive for clarity, simplicity, brevity, and humanity in the writing. Each opinion should be followed by supporting evidence, beginning with the strongest point. Each item of supporting evidence should be stated fully and scrutinized for factual accuracy and logical clarity. Finally, edit ruthlessly to omit unnecessary words, phrases, or sections. Read and reread the report to correct grammatical and typographical errors. William Zinsser observed, “Clear writing is the logical arrangement of thought” (Zinsser, 1988, p viii). No less can be expected of a forensic psychiatric report. References American Academy of Psychiatry and Law Governing Council (2005). Ethics guidelines for the practice of forensic psychiatry. The American Academy of Psychiatry and Law Available from: http://www.aapl.org/ethics.htm. [Accessed April 2, 2012.] Babitsky, S., & Mangraviti, J. J. (2002). Writing and defending your expert report: The step by step guide with models. MA: Seak, Inc. Borrello, M.L. (2010) Quality of competency to stand trial evaluations: Judges' perceptions. Alliant International University, San Francisco Bay, AAT 3436975 (dissertation). Griffith, E., & Baronoski, M. (2007). Commentary: The place of performative writing in forensic psychiatry. The Journal of the American Academy of Psychiatry and the Law, 35(1), 28. Guthiel, Thomas (2009). The psychiatrist as expert witness (pp. 95–102). (second edition). American Psychiatric Publishing, Inc. Lebovits, G. (2005). Problem words and pairs in legal writing — Part III. The New York State Bar Association Journal, 59. Lebovits, G. (2009a). Persuading the judge through writing: How to win. The New York State Bar Association Journal, 56–57. Lebovits, G. (2009b). Document design: Pretty in print — Part I. The New York State Bar Association Journal, 54–56, 64. Lebovits, G. (2010 Feb). Persuasive writing for lawyers — Part I., 58–59. (pp. 64): The New York State Bar Association. Pascal, B. (1656). Provincial letters: Letter XVI. Pollack, Seymour (1969). The psychiatrist as expert witness: cross examination of the psychiatrist. Presented to First Annual Practicing Law institute, Criminal Advocacy Institute. Are Your Techniques Obsolete? January 25, 1969. Copyright, Seymour Pollack, M.D. Reid, W. H. (2011). Writing reports for lawyers and courts. Journal of Psychiatric Practice, 355–359. Scalia, S., & Garner, B. (2008). Making your case: The art of persuading judges. Thomson/West. Strunk, W., & White, E. B. (2000). The Elements of style (Fourth edition). Longman. Zinsser, W. (1988). Writing to learn. New York: Harper & Row.
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International Journal of Law and Psychiatry
Planning, writing, and editing forensic psychiatric reports ☆ Phillip J. Resnick a,⁎, Sherif Soliman b, c a b c
Case Western Reserve University, School of Medicine, 10524 Euclid Ave., Cleveland, OH 44106, United States Case Western Reserve University, School of Medicine, United States Northcoast Behavioral Healthcare, 1756 Sagamore Rd., Northfield, OH 44067, United States
a r t i c l e
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Available online 3 October 2012 Keywords: Report writing Forensic reports Forensic opinion Report organization
a b s t r a c t Forensic psychiatric reports are often the final product of a psychiatrist's work in a particular case because most cases do not go to trial but instead are settled through negotiation or plea bargaining. This article addresses the planning, writing, and editing of forensic reports. Planning a report requires thorough data gathering, and thoughtful organization of the report into specific subheadings. Throughout the report there should be a clear separation of factual data from professional opinions. Ten pitfalls of report writing are identified. The most important part of the forensic report is the opinion section. The evidence for the opinion should begin with the strongest points and the reasons supporting the opinion should be completely explained. Finally, ethical issues are addressed. © 2012 Elsevier Ltd. All rights reserved.
1. Introduction Report writing is an essential skill for forensic psychiatrists to master. Courts, attorneys, administrative agencies, and other readers rely upon forensic psychiatrists to articulate complex medical concepts in a clear, concise manner. Forensic psychiatric reports must translate information from the language of medicine into comprehensible language that elucidates the relevant psycho-legal issues. The success or failure of forensic psychiatric reports ultimately turns on how effectively they communicate information to courts. Surveying decision makers who routinely rely upon psychiatric reports is one way to measure the reports' effectiveness. A survey of industrial accident commissioners in California showed that compared to other physicians' reports, psychiatrists' reports were viewed as generally weaker, less understandable, more subjective, more complicated, and more unscientific (Pollack, 1969). Fortunately, more recent data suggests that the quality of forensic psychiatric reports has improved. A recent survey of 35 California judges examined their perception of the quality of Competence to Stand Trial evaluations. Most judges were “very satisfied” with the reports. Further, most of the judges surveyed preferred that psychiatrists conduct the evaluations (Borrello, 2010). Writing an effective report begins with careful consideration of the legal issue and the role of psychiatric expertise in addressing the legal issue. Merely grafting a legal opinion onto the end of a clinical report ☆ Portions of this article are taken with permission from Resnick, P.J. and Soliman, S. (2011) “Draftsmanship,” The Psychiatric Report: Principles and Practice of Forensic Writing. Buchanan, A. and Norko, M.A. Ed. Cambridge University Press. Pp 81–92. ⁎ Corresponding author at: Case Western Reserve University, School of Medicine, 10524 Euclid Ave., Cleveland, OH 44106, United States. Tel.: +1 248 390 6685; fax: +1 216 844 1703. E-mail address: [email protected] (P.J. Resnick). 0160-2527/$ – see front matter © 2012 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.ijlp.2012.09.019
is inadequate. Clinically relevant factors such as developmental history, past symptoms, and treatment recommendations may or may not be legally relevant. Experts should organize their reports to most clearly address the psycho-legal issue rather than strictly adhering to a unitary structure for all reports (Reid, 2011). The content of the report will also be guided by ethical considerations of objectivity, honesty, and respect for individuals. This article will discuss each of the stages of report writing: planning, writing, and editing. We will review relevant ethical issues and offer recommendations for each stage of report writing. We will discuss common pitfalls of writing reports and how to avoid them (Table 1). 2. Planning and preparation Good planning is the key to success. The planning stage will determine whether to write a report, what information will be included in the report, and how it will be organized. Experts should pay special attention to planning their opinions and marshalling the supporting evidence for those opinions. The planning stage is a good time to consider important ethical issues that the report raises such as objectivity, honesty, and respect for individuals discussed in the report. The planning stage should proceed with data gathering, considering the audience, organizing the report, outlining the report, and planning the opinion. 2.1. Ethical considerations The American Academy of Psychiatry and the Law's (AAPL) Ethical Guidelines for the Practice of Forensic Psychiatry (AAPL, 2005) contain four key ethical principles: confidentiality, consent, honesty and striving for objectivity, and qualifications. Considering each of these principles
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Table 1 Common pitfalls in report writing. Pitfall
Examples/comments
Tips for avoiding
Raising the bar unnecessarily
“My evaluation was thorough and complete.”
Using pompous or haughty language.
“I am a world renowned expert.”
Using absolute language such as “always,” “never,” “all,” or “none.” Using hedge words like “apparently,” “seems to,” and “in a sense.” Appearing to advocate for the retaining party in communications with the retaining attorney. Labeling a report a draft, confidential, or a work product.
“No reasonable psychiatrist would ever fail to check a lithium level.” “Mrs. Jones was apparently walking home at the time of the robbery.” “Dear Bob, I hope this helps Adam finally get justice.”
“I interviewed Mr. Smith for six hours, reviewed his medical records from 1981 to 2012, and interviewed his wife.” “I have been practicing for ten years, have published 40 papers, and have received 10 awards.” “Dr. Jones fell below the standard of care in failing to check the lithium level.” “Mrs. Jones told police that she was walking home at the time of the robbery.” “Dear Mr. Smith: Attached please find my report.”
Making snide comments about opposing experts or parties. Using legal terms or the word “legal” or “legally.”
Language that makes your report appear to be the product of a “mill.”
Using pregnant negatives
Using preambles which weaken your writing. Using false emphasis such as the words “clearly” or “obviously.”
This makes it appear as though the psychiatrist is trying to hide information from the court or the opposing party. “Dr. May's failure to review the medical records from 1988 renders her opinion useless.” “From a legal standpoint, Ms. Jones is not competent.” If the psychiatrist uses legal terms, cross examining attorneys will likely ask the psychiatrist to provide precise definitions. “Dictated not read.”
A pregnant negative is a negative statement that leaves open additional questions. “There were no obvious delusions.” (Were there subtle delusions?) “To be fair, Ms. Smith has severe depression.” “The defendant was clearly malingering.” The point should be made clear by the supporting evidence. Also, using bold text, underlining, or italics should be avoided because it shouts at the reader and attempts to shortcut the logical process by using formatting rather than evidence to make a point.
when preparing the forensic report will reduce the risk of inadvertently violating these principles during deposition and trial testimony. Confidentiality, the clinician's obligation to hold in confidence information learned during evaluation and treatment, should be maintained to the extent possible. Experts must explain at the outset of the evaluation the foreseeable disclosures and, if known, how the information disclosed will be used. If the psychiatrist has not treated and will not be treating the evaluee, he/she should make it clear that he/she is not the evaluee's physician and a doctor–patient relationship does not exist. This notice should be documented in the forensic report. To the extent possible, the psychiatrist should guard against any unauthorized disclosure of information contained in the report. Informed consent is a core principle of medical ethics. Informed consent to evaluations and procedures must be knowing, voluntary, and competent. Informed consent reflects respect for the individual. Informed consent should be obtained when “necessary and feasible” (AAPL, 2005). In some cases such as court ordered evaluations, informed consent is not required. In these cases, inform the person of the nature of the evaluation and advise them that, if they decline to participate, a report will nonetheless be required and will specify their refusal. If the evaluee lacks capacity to consent to the evaluation, this information should be included in the report. Striving for objectivity is critical in forensic evaluations and reports. In contrast to treating psychiatrists whose primary role is to advocate for the health and welfare of their patients, forensic psychiatrists objectively describe their findings as part of the search for truth. That truth may or may not be in the evaluee's best interest. Honesty requires the psychiatrist to accurately report all relevant information and clinical findings, regardless of the psychiatrist's employer. Objectivity demands that significant information that does not support the psychiatrist's opinion be included in the report. Honesty and objectivity are not only ethical requirements, but also make reports more credible. The Honorable Gerald Lebovits, a judge
Avoid preparing multiple drafts. If it is necessary to make substantive changes, save the original and be prepared to explain the rationale for any changes. “Dr. May did not review the 1988 records, which are relevant because…” “Ms. Jones lacks the capacity to communicate rationally with her attorney.” If you need to use legal terms, be sure to be familiar with the definitions. Some boilerplate language is necessary (e.g., statement of non-confidentiality.) Make it specific rather than generic. For example, Instead of writing, “I explained to the defendant,” write, “I explained to Mr. Jones…” “There was no evidence of delusional thinking but Mr. Smith was very suspicious of the motives of others.” “Ms. Smith has severe depression.” “The defendant was malingering as evidenced by…”
in New York City Civil Court, Housing Part and adjunct professor at St. John's University School of Law advises attorneys to be credible and “maintain integrity” in preparing legal briefs and other filings. He writes that advocates are credible if they concede points when appropriate, discuss opposing arguments, and avoid overstating their points (Lebovits, 2010a). Supreme Court Justice Antonin Scalia and editor in chief of Black's Law Dictionary Bryan Garner advise attorneys to be “scrupulously accurate” in their briefs and arguments. Psychiatrists should do no less. The decision to include or omit a piece of information is sometimes fraught with ethical pitfalls. Both the language chosen and the data selected may indicate overt or subtle bias. A detailed account of current substance abuse is relevant to an airline pilot's fitness for duty, but the fact that the pilot used marijuana once as an adolescent is not likely to be relevant and may be prejudicial in a report regarding the impact of his depression. In deciding whether to include information that is damaging or embarrassing, carefully weigh the probative value of the information against its prejudicial effect. Working within the adversary system places several pressures on these ethical tenets. This example illustrates some of these pressures. Dr. Jones, who has a primarily biological practice, is retained by Attorney Smith, the plaintiff's attorney in a malpractice case, to offer an opinion regarding another psychiatrist's off label use of a mood stabilizer. Deposition testimony later reveals that the defendant psychiatrist also conducted psychotherapy sessions with the plaintiff. Attorney Smith calls and asks Dr. Jones to offer an additional opinion regarding whether the defendant psychiatrist's conduct of the psychotherapy fell below the standard of care. Mr. Smith adds that there is a filing deadline in three days. Mr. Smith asks Dr. Jones to provide a brief e-mail with his opinion and helpfully offers to “have my paralegal draft the opinion in the form we need.” This raises several ethical concerns. First, Dr. Jones must determine whether he has the expertise to offer this opinion. Second, Dr. Jones must determine whether he can devote the time
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necessary to thoroughly assess this question in three days. Third, Dr. Jones should reject the attorney's offer to draft the opinion because it may compromise the objectivity of the opinion. Thoughtful consideration of the key ethical issues of confidentiality, consent, honesty and objectivity, and qualifications before writing the report is critical. Ongoing reflection on the ethical questions before, during, and after writing the report will help the psychiatrist remain vigilant about the pressures posed by working within an adversary system. 2.2. Data gathering All of the necessary information should be collected before writing the report. This includes notes from interviews, referral letters, medical records, depositions, police reports, and relevant literature. This is also a time to take a final inventory of the available information. Important information that is missing should be sought. If it is not received, its absence should be noted in the report. Psychiatrists should keep a list of all sources of information. This list will eventually be integrated into the written report. In the meantime, it keeps track of information and helps determine whether additional documents should be requested. The list should be numbered in the report (Guthiel, 2009). The list can be organized chronologically or by the types of information. For example, all police reports or all medical records can be grouped together. Each listed item should be described in sufficient detail. For example, a clinical interview should include the date, place, and duration of the interview. In describing medical records, the dates, author and/or institution should be identified. Instead of listing, “Mrs. Smith's past medical records,” specify, “Mrs. Smith's medical records from Smallville General Hospital from January 2, 2012 until January 8, 2012.” When listing sources of information, avoid using vague terms to describe sources such as “various medical records.” Such language makes the psychiatrist appear careless and will make it difficult to testify without referring to the original records. A complete list of sources of information helps achieve “scrupulous accuracy” and facilitates accurate testimony. Any professional literature cited in the report should be listed as a source of information. When citing articles, it is critical to be familiar with the latest literature in the area. The entire report can be undermined if the literature cited is obsolete or has been contradicted by subsequent authority. When referring to textbooks, it is important to cite the most recent edition. Even if the authority is cited to support information that has not changed, the use of an older edition can make the psychiatrist appear out of touch with new developments in the field (Babitsky & Mangraviti, 2002). 2.3. Consider the audience No diplomat would embark on a journey to a foreign land without having some understanding of the language, culture, and customs of the land. Similarly, a forensic psychiatrist must consider to whom he is writing, the purpose of the report, and how it may be utilized by the recipient. Even the most carefully prepared report is useless if it does not convey relevant information to the target audience. Reports prepared for different readers may require different style and content. Even a clearly written report can yield poor results if the psychiatrist fails to consider the audience. For example, forensic psychiatry fellows are taught to define medical terms and describe the purpose of all medications mentioned. This is good practice in writing for a legal audience, but not when writing for medical readers. We have sometimes encountered reports prepared by forensic psychiatry fellows consulting to treating physicians that described the purpose of prescribed medications. Such an author says, in effect, “You, Dr. Treater, are currently prescribing Mr. Smith olanzapine, which is an antipsychotic used to treat Schizophrenia, an illness characterized by hallucinations, delusions, or disjointed thinking.” This language is superfluous at best and
may be viewed as condescending by the psychiatrist who is seeking consultation. 2.4. Organizing the report In their classic work, The Elements of Style, Strunk and White (Strunk & White, 2000) advise authors to “choose a suitable design and hold on to it.” The design, the basic skeleton of the report, is dictated by the purpose of the report. Reid advises psychiatrists preparing forensic reports to “fit the format to the needs of the case and the reader.” He properly notes that the format and style of the report vary depending upon the purpose of the report, intended audience, and jurisdictional rules (Reid, 2011). In selecting a design, decide which data are important and how to convey that information in a clear manner. Consider the referral issue, the relevant legal standard, the audience, and the legal requirements for the report in the relevant jurisdiction. Some jurisdictions require that specific information be included in certain types of reports while others provide general guidance or none at all. At a minimum, the report should sufficiently articulate the opinions, the manner in which the psychiatrist reached the opinions (records reviewed, examinations conducted, and people interviewed), and the bases for the opinions. For example, a report prepared to address a defendant's sanity at the time of the act should include a description of the alleged offense and the symptoms the defendant was experiencing at the time of the offense. This data will inform the psychiatrist's opinion regarding the sanity issue. In contrast, the core of a report addressing competence to stand trial is the defendant's current mental state and their ability to understand the proceedings and work effectively with an attorney. 2.5. Outlining the report Scalia and Garner advise attorneys to outline their briefs before beginning to write. They note, “Eliminating this step is false economy. The time saved will be more than counterbalanced by the time consumed in deletions and revisions that will be required if you charge ahead with no plan in mind” (Scalia & Garner, 2008, p70). The outline reflects key decisions about the structure of the report, the types of information to be included, the opinions and supporting evidence, and the logical progression of the report. It allows the psychiatrist to clarify opinions, choose an appropriate format, and preemptively eliminate redundant and unnecessary information. Outlines are particularly useful when dictating reports because they impose an organization upon the writer. The outline may be detailed. It may contain each heading in the report and the data to be discussed in each section. For example, an outline of the Educational History could include behavioral problems, special education, highest level of education attained, and academic performance. The use of headings to break up the body of the report into smaller sections allows the reader to easily find information within the report. Attorneys strongly favor the use of such headings. For example, instead of a single large section labeled “Personal History,” it is more reader friendly to subdivide a lengthy personal history into sections such as “Educational History,” “Relationship History,” “Employment History,” and “Legal History.” The choice of headings should be tailored to the particular legal issue. For example, appropriate headings in a sanity report might include the defendant's relationship to the victim, events preceding the crime, the defendant's account of the offense, and the defendant's mental state at the time of the offense. Having a heading labeled “Defendant's Account of the Crime” reduces the need to continually begin each sentence with “The defendant stated…” The most important section of the outline is the opinion. Begin by listing each of the opinions and noting the factors supporting each opinion. This process is called “mapping” the opinion (see example in the “Opinion” section below). Next, determine the order in which
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to state the opinions and the order of supporting evidence. The logical progression of the opinion is determined by the referral questions and the legal standards. Let's assume, for example, that a forensic psychiatrist is performing a sanity evaluation in a jurisdiction in which the sanity statute requires 1) the presence of a mental disease that causes the defendant to 2) lack substantial capacity to appreciate the wrongfulness of his actions or to 3) be unable to conform his conduct to the requirements of the law. The opinion section should address each of the three issues. After determining the order of each opinion, the psychiatrist should look carefully at the supporting evidence for each opinion. List the evidence for each opinion in order from strongest to weakest. In a lengthy list of evidence, consider eliminating the last few points. Scalia and Garner advise attorneys that “scattershot argument is ineffective” and state that the “very most important” step in any presentation is “selecting the arguments that you will advance” (Scalia & Garner, 2008, p22). A skillful cross examiner may spend considerable time discrediting the weakest points to make the entire opinion appear weakly supported. 3. Writing the report If the psychiatrist has spent adequate time in planning the report, the writing stage should go smoothly. The four principles of good writing are clarity, simplicity, brevity, and humanity. We will offer specific suggestions to apply these principles to forensic psychiatric report writing. Try to dictate or type the report immediately after the evaluation when the information is still “fresh.” 3.1. Clarity Scalia and Garner admonish their attorney readers to “value clarity above all other elements of style” in writing legal briefs (Scalia & Garner, 2008, p107). Clarity ensures that the report will be understood. Ambiguous reports may deliberately be mischaracterized by opposing attorneys during cross examination. Clarity requires good formatting, adequate information, appropriate word choices, good grammar, and clear attribution. Clarity begins with good formatting. Judge Lebovits recommends using a 12 point serif font (such as Times New Roman, Courier New, Garmond), and maximizing the amount of white space in the document (Lebovits, 2009b). White space is the area on the page where no text appears such as the margins and the space around headings. It does not include the space between lines. His recommendations for increasing white space include using 1.25 inch margins, avoiding long paragraphs, using headings and subheadings, adding a line between sections, using bullet and numbered lists, using left justified text, and avoiding block quotations or adding a line after block quotations. Numbering the pages and indicating the total number of pages in the report (“page 7 of 9”) is helpful to the reader. Reports should be self sufficient. Consequently, the writer should consider summarizing any critical records in the body of the report. Without referring to other documents, the reader should be able to understand how the opinion was reached from the data in the report. We generally prefer summarizing records in a separate section. Each record summarized should begin a new subsection. This allows the reader to quickly refer back to the summary of a source of information. However, sometimes brief summaries can be smoothly incorporated into a narrative of events in order to increase readability without compromising clarity. For example, “Mr. Jones said he was admitted to Smallville Psychiatric Institute in 1988 for depression. He said he was treated with ‘some drugs.’ The discharge summary by Dr. Smith of Smallville Psychiatric Institute indicates that Mr. Smith was admitted from June 4, 1988 to July 13, 1988 after threatening suicide. He was diagnosed with Melancholic Depression and treated with the antidepressant nortriptyline 150 mg at bedtime (an average dose).”
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In the diagnostic section of your forensic report, the psychiatrist should never write “rule out.” “Ruling out” a diagnosis is appropriate to write upon admission to a hospital. However, the legal reader is not going to rule out any diagnosis. If the psychiatrist has a tentative diagnosis but is not sufficiently confident to state it, he/she can precede it with the word, “probable.” Use only diagnoses listed in the latest Diagnostic and Statistical Manual of the American Psychiatric Association. Follow each diagnosis with a brief paragraph showing how the symptoms meet the DSM criteria. Within the body of the report, the writer should identify the source of each item of information. If the psychiatrist is discussing several pieces of information from one source, such as an interview, it is sufficient to identify the source at the beginning of each paragraph and indicate when a new source of information is used. For example, “Mr. Jones reported he has never used cocaine. However, his records from Smallville Psychiatric Institute indicate he had a positive urine drug screen for cocaine on May 4, 2002.” To avoid sounding monotonous, don't continually write, “Mr. Jones reported.” Instead, vary the terms used e.g., “Mr. Jones stated, Mr. Jones told me.” It is useful to clarify inconsistent data in a forensic report. For example, “Although Mr. Jones stated that he was diagnosed with PTSD while in Elsewhere Hospital in 2009, the discharge summary from Elsewhere Hospital dated June 13, 2009 reports instead a final diagnosis of malingering. When Mr. Jones was confronted with this inconsistency, he said he must have been mistaken in his recollection.” Avoid ambiguity in word choice and sentence construction. For example, “The plaintiff has discussed your proposal to fill the drainage ditch with his partners.” Contranyms should be avoided. Contranyms are words that have two opposite meanings. For example, sanction may mean both to “give permission” or to “disapprove.” Use the correct verb tense. In the report of the interview put things in the past tense. For example, “Mr. Jones described his father as passive and weak.” The mental status observations should also be in the past tense. For example, “Mr. Jones was neatly dressed and cooperative.” The opinion section should be in the present tense. For example, “It is my opinion with reasonable medical certainty that Mr. Jones is competent to stand trial.” The review of medical records is also usually best put in the present tense. For example, “The doctor's progress note on January 4 states…” Make correct word choices. For example, “feel” is often incorrectly used, such as in, “The defendant felt he was unjustly arrested.” Feel refers to visceral descriptions. So it is proper to say that the defendant felt dizzy and nauseated. “Think,” “believe,” and “state” refer to intellectual statements. Thus, the above statement should say, “The defendant believed that he was unjustly arrested.” "Guilty" carries a stronger connotation of blameworthiness than "liable." One is guilty of a crime but liable for a civil wrong (Lebovits, 2005). 3.2. Simplicity Simplicity means avoiding unnecessarily complex or specialized terms, phrasing, and sentence structure. It begins with voice, continues with word selection, and ends with writing style. The goal should be to avoid jargon and excessive formality. Instead, use simple, crisp English. The report writer should always use the active voice because using the passive voice makes the report harder to read. For example, instead of saying “the psychiatrist was repeatedly interrupted by the evaluee,” say “the evaluee repeatedly interrupted me.” Refer to yourself in the first person. Some psychiatrists refer to themselves in the third person. This is awkward and, as Babitsky and Mangraviti point out, the cross examiner can use this language to make the expert look silly or pompous (Babitsky & Mangraviti, 2002). Multi syllable words reduce readability, tax the reader, and decrease comprehension. Sentences of 20 to 25 words have the greatest readability. Use common words. Rather than writing “remuneration,” use “salary.” Instead of saying, “subsequent to,” say “after.” Many jurors are confused by the phrase “subsequent to.” In constructing sentences,
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eliminate meaningless introductions. Do not write, “It is possible that….” or “There are….” For example, do not write, “There are two basic rules that psychiatrists should follow in preparing reports.” Instead write, “Psychiatrists should follow two basic rules in preparing reports.” Plain language should be used in the report. The use of overly formal language both confounds the meaning of the report and communicates a lack of confidence. Do not use archaic language such as “aforementioned.” Instead of "enclosed herewith please find....," say “I enclose....” Simplicity means omitting jargon. While medical terminology facilitates communication among medical professionals, it obfuscates communication with the non-medical reader. Instead of stating, “Mr. Smith's mood was euthymic with a full affect. His thought process was linear,” write, “Mr. Smith's mood was neither depressed nor elevated and he displayed an appropriate range of emotional expression. He responded relevantly to my questions and his thoughts were logical and easy to follow.” When medical terms can not be avoided, they should be clearly defined. Even terms that seem basic can be misleading to attorneys. For example, schizophrenia is commonly misunderstood by the public to mean having multiple personalities. The lay reader is not likely to be familiar with prescribed medications. Therefore, the first time a medication is mentioned, describe its use, route of administration (if not oral), and consider characterizing the dose being given as low, average, or high. For example, instead of stating, “sertraline 150 mg qD,” write “sertraline 150 milligrams daily (antidepressant, average dose).” The report writer should have the confidence to let points speak for themselves. Do not attempt to convince the reader by prefacing statements with conclusory terms such as “clearly,” “certainly,” or “obviously.” Avoid embellishments like italics, underlining, or bold font. These techniques suggest that the psychiatrist wants to emphasize a fact but doesn't know how to do so. They also shout at the reader. It is better to express thoughts through content, not style (Lebovits, 2009a). 3.3. Brevity The French philosopher and mathematician Blaise Pascal once wrote, “I have only made this letter longer because I have not had the time to make it shorter (Pascal, 1656).” It takes more time and thought to succinctly address the relevant issues than it does to write a lengthy report that simply recites all of the information learned about the case. Brevity begins with carefully planning the topics and opinions to be covered in the report. It continues with clear writing and concludes with careful pruning of unnecessary information from the finished product. First, the writer should plan the depth and breadth of the report. Determine which topics are essential to discuss and which are unnecessary. For example, a detailed history of the evaluee's sexual practices is usually unnecessary in a Competence to Stand Trial report but highly relevant in an assessment of sexual offender recidivism risk. Next, determine whether specific pieces of information within each topic area are relevant. The next step is careful writing. Strunk and White admonish writers to “omit needless words.” They state, “A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts” (Strunk & White, 2000, p23). Avoid unnecessary words and redundancy. Reid emphasizes the importance of brevity in psychiatric reports and suggests that psychiatrists resist “the temptation” to write everything they know about the subject unless the referring party requests an “exhaustive treatise” (Reid, 2011). The editing stage is the last opportunity to make certain the report is no longer than necessary to address the legal issue. Scalia and Garner advise attorneys that brevity requires the “ruthlessness” to eliminate irrelevant material (Scalia & Garner, 2008, p98). Forensic psychiatrists should be equally “ruthless” when taking a red pen to their reports.
3.4. Humanity We must not lose sight of the fact that psychiatric reports are ultimately about people, their thoughts, their emotions, and their behaviors. As Griffith and Baranoski observed, “Forensic reports must contend with several human voices seeking to be heard” (Griffith & Baronoski, 2007). Using quotations of the evaluee's language animates writing. Quotations allow the person to speak directly to the reader. Using quotations is particularly important in conveying a defendant's account of the crime. In addition to demonstrating humanity, allowing the different human voices to be heard in the reports promotes objectivity by demonstrating that the psychiatrist considered each person's perspective in forming their opinions. One of the easiest ways to maintain humanity is to avoid dehumanizing language. For example, instead of continually referring to the individual being evaluated as “the evaluee,” “the defendant,” or the “plaintiff,” refer to the person by name. Use the person's surname preceded by the appropriate title such as Mr., Ms., or Dr. This approach sends two messages. First, it communicates respect for the person being evaluated. Second, it indicates that the report is about an individual rather than a generic report. The psychiatrist should avoid using pejorative language towards the evaluee. Rather than saying, “Mr. Smith is a liar as evidenced by the fact that he told the police he did not rob the store but admitted it an hour later,” write, “The fact that Mr. Smith told the police he robbed the store an hour after denying it suggests that he was consciously misrepresenting his role in the offense during his first interview with officers.” Using pejorative language violates both the principles of objectivity and humanity. 3.5. The opinion section The opinion is the most important part of the report. Thus, it may require 50% of the writing time even if it makes up only 20% of the total report. Thus, the content of the opinion should be carefully planned. First, address the questions posed in the referral. Then prepare the opinions and the supporting evidence. We prefer labeling this section simply “Opinion” to convey that we are stating expert opinions. Designations such as “discussion” or “formulation” suggest speculation rather than a professional opinion. In organizing the Opinion Section, psychiatrists should jot down all their thoughts and then decide how to organize them (mapping the opinion). The following list shows that the defendant knew the wrongfulness of his act in an insanity case. Here are the psychiatrist's initial thoughts in random order. Hid his gun Wiped away fingerprints Apologized to the victim Waited until dark Said “sorry” to witness Cleaned up blood Wore gloves Expressed remorse to police Wore a ski mask Organizing the evidence will make it more convincing and easier for the jury to recall. Upon reflection, these points could be arranged into the following three clusters: Avoided detection Gloves Ski mask Darkness
Removed evidence Fingerprints Cleaned blood Hid gun
Expressed remorse To police To witness To victim
The writer should begin each section of the opinion by stating the opinion, followed by a list of supporting evidence starting with the strongest point. Don't begin a sentence with the evidence and
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conclude with the opinion. For example, rather than saying, “In view of a, b, c, my opinion is x,” it is better to say, “My opinion is x.” The following evidence supports my opinion: a, b, c. This approach makes the basis for each opinion clear and is preferred by legal readers. In formulating the supporting evidence for the opinion, be certain each point has a solid factual basis. Then, be certain it does, in fact, support the opinion. The psychiatrist must be clear about the relevant legal standard and resist the temptation to make an illogical leap from clinical symptoms to a legal conclusion. For example, it is incorrect to write, “Mr. Smith is incompetent to stand trial because he is grossly psychotic.” A better approach would be: “Due to his disjointed thinking, a symptom of schizophrenia, Mr. Smith is unable to testify relevantly or communicate critical information to his attorney.” In this manner, the clinical symptoms are tied to the legally relevant standard. Each piece of supporting evidence should be fully explained. The reader should not have to guess why the point supports the conclusion. Assume for example that a psychiatrist is marshalling evidence to support the opinion that the defendant, Mr. Jones, knew the wrongfulness of robbing a bank. Don't write, “Mr. Jones wore gloves.” Instead, write, “Mr. Jones wore gloves on a hot summer day. He acknowledged to me that he did not want to leave fingerprints, which indicates that he knew he was engaging in illegal conduct.” We call this “A to Z reasoning” because it shows the reader each step in your reasoning. After listing the supporting evidence, the psychiatrist should organize the list from strongest to weakest points. If the strongest points are not persuasive, the weaker points are certain to fail. Then, look closely at the last point and consider eliminating it. The writer should continue examining and eliminating the weakest points until he/she is confident that all of the supporting points are factually based and logically sound. Scalia and Garner accurately observe, “On the surface, it might seem that a ten point argument has been overanalyzed. In reality, it has been underanalyzed.” (Scalia & Garner, 2008, 23). If there is more than one version of events, the psychiatrist should consider offering alternative opinions for each version of the facts. Consider, for example, a malpractice case involving an inpatient suicide. The decedent's wife testified that she told the defendant doctor, one hour before the suicide, that her husband was depressed and planning suicide. The defendant doctor testified that he did not speak with the decedent's wife on the day of the suicide and added that, had he known that the decedent was contemplating suicide, he would have placed the decedent on suicide precautions. The expert can offer two opinions, depending upon which account the trier of fact credits. Refraining from opining which account is true will make the expert report more credible. The psychiatrist should avoid addressing the ultimate issue (the legal issue being decided) directly in the opinion. Instead, limit the opinion to the psycho-legal issue. For example, instead of writing, “Mr. Jones was insane at the time of the act,” write, “It is my opinion, with reasonable medical certainty, that Mr. Jones was suffering from a severe mental disease, schizophrenia, which caused him to not know the wrongfulness of killing Robert Smith on November 3, 2010.” Ultimate issue opinions are not preferable because they make it appear as though the psychiatrist is usurping the role of the trier of fact and dictating the outcome of the case. Occasionally, ultimate issue testimony is required by judges or by jurisdictional rules. 4. Editing The editing stage is among the most difficult because it forces the writer to look critically at his/her own work. Review the organization, writing, logic, and typography of the report. Begin by reviewing the organization of the report. Determine whether the organization selected is clear, simple, and reader friendly. It should be easy for the reader to find the opinions and the supporting evidence as well as specific pieces of information within the report
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(i.e., a summary of the evaluee's records from St. Elsewhere in 1998). Next, review the organization of each section for readability. Review the writing for clarity, simplicity, brevity, and humanity. When dictating, it is easy to be verbose, to use unnecessary introductory words, and to allow unnecessary modifiers such as “certainly” or “clearly” to slip into the report. These errors can easily be corrected through careful editing. Read and reread the opinion. Make certain that the report clearly addresses the specific legal issue. Typographical and grammatical errors are easy to overlook. Reading the report backwards or out loud can help to bring out such errors. In addition, consider having a colleague proofread the report for grammatical or typographical errors. 5. Conclusion Writing clear, concise reports is an essential skill for forensic psychiatrists. Like all successful endeavors, an excellent report begins with a solid plan. During the planning stage, the psychiatrist should reflect upon the legal question and how best to organize the report to communicate opinions about the issue. Next, strive for clarity, simplicity, brevity, and humanity in the writing. Each opinion should be followed by supporting evidence, beginning with the strongest point. Each item of supporting evidence should be stated fully and scrutinized for factual accuracy and logical clarity. Finally, edit ruthlessly to omit unnecessary words, phrases, or sections. Read and reread the report to correct grammatical and typographical errors. William Zinsser observed, “Clear writing is the logical arrangement of thought” (Zinsser, 1988, p viii). No less can be expected of a forensic psychiatric report. References American Academy of Psychiatry and Law Governing Council (2005). Ethics guidelines for the practice of forensic psychiatry. The American Academy of Psychiatry and Law Available from: http://www.aapl.org/ethics.htm. [Accessed April 2, 2012.] Babitsky, S., & Mangraviti, J. J. (2002). Writing and defending your expert report: The step by step guide with models. MA: Seak, Inc. Borrello, M.L. (2010) Quality of competency to stand trial evaluations: Judges' perceptions. Alliant International University, San Francisco Bay, AAT 3436975 (dissertation). Griffith, E., & Baronoski, M. (2007). Commentary: The place of performative writing in forensic psychiatry. The Journal of the American Academy of Psychiatry and the Law, 35(1), 28. Guthiel, Thomas (2009). The psychiatrist as expert witness (pp. 95–102). (second edition). American Psychiatric Publishing, Inc. Lebovits, G. (2005). Problem words and pairs in legal writing — Part III. The New York State Bar Association Journal, 59. Lebovits, G. (2009a). Persuading the judge through writing: How to win. The New York State Bar Association Journal, 56–57. Lebovits, G. (2009b). Document design: Pretty in print — Part I. The New York State Bar Association Journal, 54–56, 64. Lebovits, G. (2010 Feb). Persuasive writing for lawyers — Part I., 58–59. (pp. 64): The New York State Bar Association. Pascal, B. (1656). Provincial letters: Letter XVI. Pollack, Seymour (1969). The psychiatrist as expert witness: cross examination of the psychiatrist. Presented to First Annual Practicing Law institute, Criminal Advocacy Institute. Are Your Techniques Obsolete? January 25, 1969. Copyright, Seymour Pollack, M.D. Reid, W. H. (2011). Writing reports for lawyers and courts. Journal of Psychiatric Practice, 355–359. Scalia, S., & Garner, B. (2008). Making your case: The art of persuading judges. Thomson/West. Strunk, W., & White, E. B. (2000). The Elements of style (Fourth edition). Longman. Zinsser, W. (1988). Writing to learn. New York: Harper & Row.