The Phobic in Court

Harold J. Bursztajn, M.D.

As a forensic psychiatrist, a psychiatrist who both testifies in court as an expert witness and evaluates people who arc plaintiffs and defendants in civil and criminal cases, I often encounter the following paradox: those who will most benefit by testifying in court often arc those who arc most frightened and anxious about testifying in court. As often as not, such fears and anxieties become translated into phobias about having to take the witness stand and testify in a case. These fears can range from a fear of actually stepping into the courthouse, stepping up on the witness stand, swearing to tell the whole truth and nothing but the truth, or having to testify about an event which was so frightening in the first place that one wants to put it out of one's mind and yet the requirement of the case is to testify about it.

What follows is an illustrative case history. Jane D. was driving in her automobile when she was rear ended by a pick-up truck driven by a drunk driver. She lost consciousness but prior to losing consciousness remembers a moment in time that "almost stood still" as she went forward in the driver's seat and then back again restrained by her seatbelt which proved to be lifesaving. She does not remember what happened next but does remember being saved by the "jaws of life" which freed her from her automobile and then finding herself with terrible left chest pain. She was taken to the local hospital emergency room where it was revealed that she had three fractured ribs and a fractured left arm. After a brief period of hospitalization she remembers a trip back home and being frightened to get into the passenger's seat of the automobile which her husband was using to drive her home. She then preceded to have recurrent nightmares, recurrent intrusive flashbacks around the accident site whenever she was driving and would even avoid driving on any interstate highway which is where the accident occurred in the first place.

Driving herself, she would only take backroads, drive very slowly and still occasionally have panic attacks when any truck which reminded her of the truck which hit her would appear. She eventually was referred for treatment to a psychiatrist because of the profoundly disabling features of her mental state which included hyper-arousalability, hyperdestructibility, recurrent flashbacks and preoccupations, Her phobia around driving on open highways caused her phobic avoidance of driving on highways. In addition, her family life, including emotional and physical intimacy with her husband dwindled to a stop and she was becoming more depressed and, because of her problems with flashbacks, unable to concentrate on her job.

Her treating psychiatrist initiated an intensive program of individual psychotherapy which included behavioral, cognitive and psychodynamic components as well as pharmacologic therapy given the severity of her dysfunction. Two years after the accident and a year and half after beginning treatment, Jane D. showed some response in terms of a diminution of all of her presenting symptoms. Six months later, however, she was notified by her attorney that the legal case surrounding the damages was now proceeding to the point where she could see a trial date in the year ahead. She also asked her treating psychiatrist whether she would be willing to testify in court. The thought that the confidential nature of their dialogue would be revealed became a preoccupation for Jane D. Moreover, in speaking with her treating psychiatrist she informed her that the trial process itself might be stressful, it would be helpful to preserve the confidentiality of their treatment relationship and that a good alternative existed as far as being able to provide the court with psychiatric testimony. She stated that she herself, being a treating psychiatrist, would have no ability to give the kind of objective forensic psychiatric opinion that is required in court. By its very nature the treating psychiatrist-patient relationship is one where the treating psychiatrist's job is to act in the best interests of the patient. What is required for court, however, is a degree of detachment and objectivity on the part of the testifying psychiatrist as far as being able to inform the court with a degree of medical certainty as to the causal relationship between the patient's symptom and the accident as well as the extent of the damages and the patient's prognosis. At this point, her treating psychiatrist suggested that she seek a consultation in coordination with her attorney with a forensic psychiatrist.

This is when I received the phone call. I was asked whether I would be willing to do an extended evaluation of Jane D. for the purposes of presenting testimony in court about whether there was a causal relationship between the accident and her psychiatric symptomatology and what was the extent of the emotional and physiologic damages that she had suffered thereby. When I met with Jane D., it was with the clear understanding that I was consulting to her attorney, her treating psychiatrist, and to her, but that I was not going to be her treating psychiatrist Her treatment would continue unimpeded and unharassed by the possibility of her treating psychiatrist being called to testify, as the expert witness. In contrast, anything which she communicated to me she did so with the knowledge that should she and her attorney ask me to testify, I would testify to anything that she had communicated to me. As the evaluation preceded this bifurcation of function between the treating psychiatrist and myself, the forensic psychiatrist, proved to be most helpful. For example, in the course of my evaluation the patient had to reconstruct with me the very difficult and emotionally overwhelming experience of having felt helpless following the accident. Knowing that she would see her treating psychiatrist the next day, she was able to speak more freely and without dreading the overwhelming sense of helplessness that she knew she would experience during such a reconstruction. As our evaluation preceded further we were able to also interview others who had known Jane before the accident and who knew her after the accident, including her husband, her children, and two of her co-workers. Having such corroborative evidence for her changes in function proved eventually immensely helpful at trial.

Six months prior to trial Jane was notified that she needed to appear first for a deposition. The notice came in a certified letter which she received. She signed the receipt, opened the envelope, and then went into a state of panic. As I reviewed with her what a deposition would involve it became clear that she had fantasies of being exposed, shamed and humiliated about her symptoms of phobia. In particular, it became clear that her family had an extended history of stigmatizing individuals who had become phobic and that there was a strong family history of phobia. Moreover, she did not understand the "eggshell skull" principle of causality in civil litigation. Just because someone has a predisposition to becoming phobic, by reasons of genetics or early developmental history, and even if they were phobic before the accident, it does not mean that they will not be compensated. This misunderstanding plus a mixture of shame and a fear of loss about talking about her phobic symptoms combined to increase the anxiety for her of being deposed.

She was able to go through the deposition with this clarification in mind and six months after this it became time to prepare for trial. Once again symptoms of panic and shame reappeared around the experience of having to testify. The fear that telling the truth would leave one vulnerable to being humiliated or exposed was now based on the idea of seeking compensation for an automobile accident was something which her family had associated with people who malinger or fake their injuries. Her injuries were real but the old history of a family myth about what it means to sue someone in court for an automobile accident lingered on for her. In fact it became that much stronger as the trial date approached. Her treating psychiatrist focused with her around symptomatic relief. As a forensic psychiatrist my job was to help her communicate the truth as openly as she could. I did so by my reconstructing with her again, in detail, the accident and reviewing her reactions to it. This in itself seemed to help and at trial she was a most effective and credible witness.

The high six figure compensation award given to her by the jury gave her the means that she needed to pursue the kind of intensive treatment course which she needed. Although much remained as far as her treatment was concerned, my role as the forensic psychiatrist was over at this point.

I hope this composite case report illustrates and heartens people who are phobic of testifying in court. Should a consultation with a forensic psychiatrist be required, this should be done and should be separate from the treatment in order to preserve treatment confidentiality. The phobic person or his or her attorney can make contact with a reputable forensic psychiatrist.

Harold J. Bursztajn, M.D. is Co-Director of the Program in Psychiatry and the Law and Associate Clinical Professor of Psychiatry at Harvard Medical School.