EXPERT WITNESS: Working with your expert witness

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By Michael G. Brock

One skill that is very important for a lawyer and cannot be taken for granted is the ability to work with an expert witness. I have found that there are attorneys who are very sensitive to this issues, and those who seem to lack understanding. However, the expert witness is providing evidence in your case, and, in most cases, the quality of your evidence plays a large role in determining the disposition of the case. This is most evident in high stakes cases, such as CSC or murder cases, but also holds true in driver license restoration. The main difference is that in the driver license case, the attorney is in control of the evidence that goes before the Hearing Officer (read: judge by another name), thus, giving him or her more control over the outcome of the case. I should think this would be a lawyer's dream.

Moreover, you may not think of the evaluator as your expert in a given case, but he clearly is. It has long been my practice, and I believe it is standard practice for those of use doing the Substance Use Evaluation SOS 258, to send the report to the client. Or, if the client is represented by counsel, I now send the report directly to the attorney representing the client, with the instructions to the client to sit down with the attorney to fill out the Request for Hearing SOS 257 form, and to also make sure the attorney gets the letters of support, and that these letters be signed, dated, notarized, and contain the last drink and/or drug use date, and contact information for the person writing the letter. I also tell them to make sure they have a copy of everything.

I send the report to the attorney because clients often drag their feet on getting their evidence to the lawyer, who, if he or she is busy with another case at the time, may allow the time (90 days) to lapse before getting the evaluation to the state. Sending the report directly to the attorney has, for the most part, eliminated this problem. It also allows the lawyer to review the evaluation, Request for Hearing, and the client's letters of support, and to make sure they line up before sending them to the state. The importance of this cannot be overstated. Inconsistency is the biggest reason for denial, after evidence that contradicts the record. These mistakes can and should be prevented. It also offers attorneys the opportunities to correct my errors before the evidence goes in.

What makes me your expert witness in these cases is that the attorney has the option to use my evaluation, ask for corrections, or seek another evaluation if he or she believes mine is unfair. Therefore, why a lawyer would fail to communicate and coordinated with me regarding my report baffles me. Treating your expert with contempt, or withholding necessary information cannot possibly be in your client's best interests. The best lawyers make sure I have the driving record, or in some cases, the completed Request for Hearing form before I begin work. These lawyers are meticulously attentive to detail. More importantly, they realize that inconsistencies will be viewed as dishonesty on their clients' part, though it may well be just disorganization or laziness.

Last week I had the following exchange with a client, which is a good example of how not to get what you want from your expert. The attorney, who had provided me no information prior to the evaluation and did not bother to contact me at any point, wrote the following email to her client upon receiving the completed evaluation:

"(8/1/2018) I have reviewed your Substance Use Evaluation, and the following corrections need to be made: [1] Lifetime Conviction History: The date of your second DUI was 08/09/2008, not in July 2008. [2] Diagnostic Impression: Your last offense was in August, not July of 2008, so your last use of alcohol could not have been in July 2008. This was a huge issue in your hearing in 2012. [3] Drug Screen: I need this sent to me. [4] Lifetime Abstinence History: This cannot be correct because of your offense occurring in August, not July. [5] Once the above corrections are made, this can be signed and dated by both you and the Evaluator. [Signed by the attorney]"

It should be noted that the eval and drug screen were mailed out on 7/30/2018, so that what the attorney was responding to was not the final evaluation, but the unsigned rough draft that I send out with a free copy of my book on driver license restoration. The drug screen results are not back when I send that out, so that may be why she did not acknowledge receipt of it. It is intended for review and comment/correction. This is a rough draft (as stated in the communication), hence, no signature.

Note several points:

1) The attorney had the client's driving record and/or the rejection letter from the previous hearing, which, if provided to me prior to the evaluation, would have prevented the error which stated that he was sober when he got his last DUI. It would also have provided me the opportunity to respond to the reasons the client was denied at his last hearing. Hearing Officers expect these concerns to be addressed. If they are not, the Hearing Officer assumes (correctly) that the evaluator is making his assessment with incomplete information. They will, accordingly, afford the evaluation less weight than if they had a complete picture of the client's previous litigation history.

2) The date of the last offense, therefore, was based on the client's best guess. Since it was bad guess, everything that followed: sobriety date and lifetime abstinence history, was seriously inaccurate and unlikely to result in success at the hearing.

3) These mistakes could have easily been preempted by communicating the necessary information to the expert witness/evaluator. The fact that they were not resulted in a waste of everyone's time and effort. Communicating with your expert through your client is always a bad idea. In so far as possible, the attorney's main function is to save their client from him or herself. Clients who lose at these hearings have usually self-destructed. Lawyers need to understand this basic principle of mental health forensics to properly represent their clients and have a reasonable chance of success.

I responded to this client as follows:

"If the evaluation I provided you was not accurate and your lawyer has accurate information, why was I not provided this information in a timely manner (before the evaluation was completed and mailed)? I asked you why you were denied at your last hearing and if you had the denial letter. You said no, leaving me no other choice but to go off the information you provided. This is not a sound way to make your case.

"If your lawyer had your driving record, or the denial letter, why was that not provided to me? The denial letter would have outlined the reasons for your denial and would have afforded you the opportunity to respond to each of the Hearing Officer's concerns. The denial letter would have had specific dates of your offenses, and blood alcohol content (BAC). The denial letter would also have stated that there were inconsistencies between the evaluation and the driving record; i.e., the information you provided me and the information that is a matter of record and which the Hearing Officer will go by. Even the driving record alone would have kept us from repeating the mistake of saying you were sober when you got your last DUI.

"I tell all of my clients and the attorneys I work with that the two biggest reasons for denial of the appeal are lack of sufficient time in sobriety and inconsistent statements across the four pieces of evidence the state requires you to provide at the hearing: a) The Substance Use Evaluation 257, b) The SOS Request for Hearing 258, which I instruct my clients to fill out with their attorney if they have one, or WITH THE COMPLETED 257 IN FRONT OF THEM if they are not represented by counsel, c) The letters of support, and d) Their testimony at the hearing.

"If I have accurate information, I can keep you from making the same mistakes repeatedly and expecting a different result. If I have misinformation, it will affect that accuracy of the whole report. I am, in effect, your expert witness. Your attorney has the option to use my evaluation, of if she believes it is not in your best interests to do so, she can seek another.

"If you provide erroneous information at the hearing, you will not be given another chance to set your story straight and come back next week with another version. Never the less, it is my experience that my clients are generally unsophisticated regarding the law, and not as attentive to detail as their professionals. This is why I send the report directly to the attorney. It is also why it is best for the attorney to deal directly with me. The process is complex, and an important function of legal counsel is to make sure your evidence lines up with the record, and with other evidence you have provided.

"My job, as your evaluator, is done when I send out the report with the drug screen and the information you have provided me. I am not on retainer to continue making amendments to your report that your attorney believes need to be made, unless of course, it is due to my error. That is why it is important a) That the attorney communicate with me, and b) That I be provided accurate information at the time of the evaluation.

"My assessment of the attorneys I work with and which ones I refer to is based on the timeliness and accuracy of the information they provide me, and then provide the completed evaluation, Request for Hearing, and support letters to the state. If you need to have your evaluation updated because of your failure to provide me accurate information in a timely manner, you will need to make another appointment for that purpose, at which time you will need to provide me that information, meaning the entire denial letter from your last hearing, and your driving record. Since the drug screen will not need to be updated, you will be charged for one hour, and you will leave with a signed copy of the eval and drug screen."

One final point on a related matter. One of my clients recently told me that my instructions to him to obtain a PBT from a police station if he had a false positive on the interlock device was incorrect. He told me that Hearing Officers no longer accept a PBT as proof of sobriety. I emailed Ms. Tulloch-Brown, head of the Administrative Hearing Section to see if this was the case. She said it was not; that PBTs are accepted as proof of sobriety.

What probably happened in the case of this particular person, is that he waited too long to get the PBT, and in such a case, the client should obtain an EtG from a laboratory as proof of sobriety because it goes back further. However, as we describe in our book ("Get Your Michigan Driver's License Back! 2018," Michael Brock and Atty Matthew Zick), anything that can go wrong will go wrong, and clients should always keep a bottle of water handy to clear their mouth of yeast or anything else that may cause a false positive.
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Michael G. Brock, MA, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. Much of his practice in recent years relates to driver license restoration and substance abuse evaluation, but he also consults and serves as an expert witness regarding forensic interviewing and the use of forensic interviewing protocols in cases of child sexual abuse allegations. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail: michaelgbrock@comcast.net, website, michaelgbrock.com.

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