* Thomas G. Gutheil

Editor:

The *Journal* contained a fascinating narrative from David Menkes, MD, PhD,1 about an expert who listened to a telephonic deposition without announcing his presence, while e‐mailing suggestions to the deposing attorneys as to what lines of inquiry to follow. In their detailed and thoughtful commentary, Candilis and Martinez2 demonstrated, citing multiple authorities, that the “silent” expert witness violated standards of ethics from a whole series of perspectives. However, the latter authors did not address the court's response, which was to defeat the motion *in limine* to exclude the silent expert's testimony, although the expert admitted on cross the truth of the scenario. The court's response deserves some commentary of its own.

Dr. Menkes describes the judge's reaction as follows: The judge opined that the eavesdropping “may not be very nice” but disputed the contention that it represented unlawful interception of communication on the basis that it was “for the purpose of court proceedings” [Ref. 1, p 241].

For perspective on the possible rationales of the court's view, note that experts may be asked to supply guidance to retaining attorneys about cross‐examination of opposing experts' opinions, not to mention participating as rebuttal witnesses in frank attempted refutation of those opinions. In a recent trial in which this author was an expert, a “litigation consultant” sat behind the opposing attorney's table and regularly passed slips of paper with apparent suggestions to the cross‐examining attorney; however, this occurred in full view of the judge and jury. Comparably, attendees at deposition of whatever status are customarily reported as “also present.” Neither of these benign contexts, however, applies in the instant case.

My suggestion here—unfortunately unprovable without specific data—is that the judge's response rested on several legal “dynamics,” as it were, beyond the remark attributed to columnist George Will, “The judge will do what the judge will do.” This is the apparent wish by some judges to “get it all in and sort it later.” One result of this view is seen in privilege arguments, where the exceptions seem to swallow the rule.3 A second is the concern, in a homicide case, that a claimed failure of a “speedy trial” will raise difficulty further along the way. A third is the basic distrust4 of experts (shown in some parts of the legal system) that would lead a judge to consider an expert's violation of his own ethical code an irrelevancy, or at least a harmless error.

I would be interested in other views, especially that of Dr. Menkes, as to what the underlying reasoning might have been.

*   American Academy of Psychiatry and the Law

## References

1.  Menkes DB: The silent expert. J Am Acad Psychiatry Law 34:240–1, 2006
    
    [Abstract/FREE Full Text](http://jaapl.org/lookup/ijlink/YTozOntzOjQ6InBhdGgiO3M6MTQ6Ii9sb29rdXAvaWpsaW5rIjtzOjU6InF1ZXJ5IjthOjQ6e3M6ODoibGlua1R5cGUiO3M6NDoiQUJTVCI7czoxMToiam91cm5hbENvZGUiO3M6NToiamFhcGwiO3M6NToicmVzaWQiO3M6ODoiMzQvMi8yNDAiO3M6NDoiYXRvbSI7czoyMjoiL2phYXBsLzM0LzQvNTY5LjEuYXRvbSI7fXM6ODoiZnJhZ21lbnQiO3M6MDoiIjt9) 

2.  Candilis PJ, Martinez R: Commentary: the higher standards of aspirational ethics. J Am Acad Psychiatry Law 34:242–4, 2006
    
    [Abstract/FREE Full Text](http://jaapl.org/lookup/ijlink/YTozOntzOjQ6InBhdGgiO3M6MTQ6Ii9sb29rdXAvaWpsaW5rIjtzOjU6InF1ZXJ5IjthOjQ6e3M6ODoibGlua1R5cGUiO3M6NDoiQUJTVCI7czoxMToiam91cm5hbENvZGUiO3M6NToiamFhcGwiO3M6NToicmVzaWQiO3M6ODoiMzQvMi8yNDIiO3M6NDoiYXRvbSI7czoyMjoiL2phYXBsLzM0LzQvNTY5LjEuYXRvbSI7fXM6ODoiZnJhZ21lbnQiO3M6MDoiIjt9) 

3.  Gutheil TG, Appelbaum PS: Clinical Handbook of Psychiatry and the Law (ed 3). Baltimore: Lippincott Williams & Wilkins, 2000
    
    

4.  Gutheil TG: Testimony, necromancy and basic distrust. AAPL Newsletter 25:1–4, 2000