May 01, 2021 Mental Health

Fools Rush In: Providing Expert Services in Advance of Confirmed Funding

Eric Y. Drogin

When it first appeared some four years ago, this column pledged to attend to “all issues, great and small.” It may go without saying that some issues can appear greater to one party than to another party—especially when those issues involve funding. Let’s examine how a prosecutor might consult with a reputable forensic psychologist when the scheduling of an urgently needed forensic examination may outpace the ability to guarantee payment.

Prosecutor: Are you sitting down?

Doctor: I’m a psychologist. It’s what we do.

Prosecutor: This is a pretty big deal. We’ve got a defendant in the county jail who shot two family members last night, and then tried to get the officers to shoot him when they arrived.

Doctor: What can I do for you?

Prosecutor: How soon can we get you over to the jail? The public defender is going to record video of the defendant this morning, speaking to their own shrink—uh, to their own doctor …

Doctor: Don’t worry. I’ve been called worse. On the stand. By you, come to think of it.

Prosecutor: … so we need to have you, our own doctor, see him as well. They’re going to argue that when it comes to an insanity defense, there’s no substitute for examining the defendant as soon after a homicide as possible. I’d rather be able to point out that we got there early as well, instead of just relying on a state hospital evaluation conducted several months after the fact. The judge told the public defender they could have the defendant seen today—and recorded—as long as we get to do it too.

Doctor: I’ve got a pretty decent camera, and I can be there by two o’clock this afternoon.

Prosecutor: You need to know that the judge hasn’t authorized funding for this yet.

Doctor: I’ve got a Number Two pencil, and I can be there by Thursday.

Prosecutor: Well … I understand.

Doctor: No, you don’t. I’ll be there at two o’clock this afternoon, ready to record.

Prosecutor: Are you sure?

Doctor: Absolutely. This is one of those exceptions that prove the rule.

Prosecutor: So you have a rule about getting funding first? Does this situation come up often?

Doctor: I didn’t always have a rule, and this situation comes up as often as you let it.

Prosecutor: How so?

Doctor: In a big city like this, you can’t throw a rock without hitting a mental health professional …

Prosecutor: … and besides, it’s illegal.

Doctor: I’ll take your word for it; you’re the prosecutor. Anyway, there are scores of doctors within a half hour of your jail who basically use the same tests that I do, and some of whom may charge less …

Prosecutor: Could you email me a list of names sometime?

Doctor: … so what really sets an expert witness practice apart—along with experience, name recognition, and a reputation with the bench for even-handedness—is customer service.

Prosecutor: Like returning calls and getting reports in on time?

Doctor: Like being there when the phone rings and getting reports in early. Also, like getting defendants seen at the first available opportunity.

Prosecutor: Thanks again, by the way.

Doctor: When counsel calls, it feels great—and looks even better—to provide a really early examination date and promise as quick a turnaround time as you can. Then the ball is in counsel’s court when it comes to getting records, authorizing collateral interviews, and so forth.

Prosecutor: I’ll file a motion tomorrow morning to try and get everything the defense is getting. It’s not like we can ask the defendant for a release.

Doctor: Understood. So, when it comes to getting that really early examination date on the calendar, it can really take an edge off the mood when you have to say, “let me know as soon as the judge authorizes funding, and then call me back so we can set a date.” It can take a while to draft a funding order, get it to the judge, get the judge to sign it, get it back from the court, and then send it off to the expert … and who knows when the next available time slot is going to be for an examination?

Prosecutor: You said you didn’t always have a rule about this.

Doctor: I always just used to say, “that’s alright; we can always sort out the financial aspects later.”

Prosecutor: I don’t know about “always” …

Doctor: I had a hunch, and after a while, I did know. I was going down a list of open cases a few months ago and realized that I had over 30 matters—some of them involving multiple examinations, written reports, and even court appearances—that amounted to tens of thousands of dollars that I couldn’t bill. At least yet.

Prosecutor: Can’t you just contact counsel and say, “please send over the order”?

Doctor: There can be a few problems with that. One is that counsel can be, shall we say, a bit preoccupied …

Prosecutor: Don’t worry. I’ve been called worse. From the stand. By you, come to think of it.

Doctor: Preoccupied is one issue, and I get it. For example, a public defender gets an email message from me that I still don’t have a signed funding order. It’s one of 135 emails counsel receives that day. It’s the third time I’ve sent a similar email message to counsel—on this case alone. It’s 4:30 p.m. on a Friday. Counsel can rummage around, find a copy of the order, and send it to me with a properly collegial and apologetic email message in return, so I can get paid more money in this single matter than counsel takes home in a month, with counsel painfully aware that the particular evaluation in question wasn’t even helpful for the client’s case. Or counsel can go and do 11 jail visits that really shouldn’t wait until after court on Monday.

Prosecutor: Still, they should send you the order.

Doctor: That’s when they even have one! There’s preoccupation, and then there’s procrastination, and then there’s losing the plot altogether. What if counsel never got around to requesting the order, is scared to let the judge know that such a huge bill was run up without the court’s initial approval, and is concerned about reminding the judge so close to, say, a competency ruling that an evaluation was performed, which obviously didn’t support counsel’s perspective, or a report would have been filed? Even worse, in some jurisdictions this could inspire the judge—or the other side—to start asking questions that might surface some very unhelpful information indeed.

Prosecutor: With all of these problems for counsel and for your own bottom line, why don’t you stick to your rule? Of course, I’m not trying to talk you into it …

Doctor: In an emergency—like today’s case—you can’t just sit around. The overall collection rate in this line of work would put any other small business to shame, so the expert needs to treat occasional missed fees of this sort as part of the overhead. One more thing: Experts shouldn’t ever complain if they provided services in advance of confirmed funding and wound up not getting paid. They knew the risks.

Prosecutor: Let’s try to keep that from happening in this case. I’ll file a funding motion first thing tomorrow.

Our readers were also promised a “balanced approach,” so here goes. When defense counsel had to procure an examination in a hurry in order to preserve mental health evidence, it’s important to let the court know at the first opportunity that the expert was aware of the financial risk involved and that there was no attempt to achieve a funding fait accompli. Among other advantages, this is likely to increase the likelihood that fees will be granted after the fact.

Please feel encouraged to contact Dr. Drogin at edrogin@bidmc.harvard.edu with any questions about expert witness funding matters, or with any suggestions for future topics.

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Eric Y. Drogin

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Eric Y. Drogin is a board-certified forensic psychologist and attorney serving on the faculties of the Harvard Medical School and the BIDMC Harvard Psychiatry Residency Training Program.