In The Spotlight
by Giles Eyre and Dr Linda Monaci
by Jeremy Dickerson, Burges Salmon LLP -
by Giles Eyre and Dr Linda Monaci
by Jeremy Dickerson, Burges Salmon LLP -
by Koch HCH, Newns K & Strachan R
The Interface between Psychology and Law
The interface between Psychology and Civil Law has begun to be better recognised in the UK, aided significantly by publications in this journal (1,2)
The field of ‘psychology and law’ is now recognised as an important area of practical legal study aiming to understand and enhance justice in criminal, civil and family contexts (1). Every area of psychology (e.g. forensic, social, clinical, cognitive) is relevant to some aspect of law. The relationship between the two disciplines has expanded and deepened over the past 40 years with considerable opportunity on both sides. Both professions, Psychology and Law, aim at ‘uncertainty avoidance’ in searches for truth and justice. Uncertainty is intrinsic to the scientific and legal processes. Many issues confronted by the legal system are inescapably psychological and relate to all the key players in civil litigation (Figure I).
Contemporary 21st Century Therapeutic Jurisprudence, which addresses the culture of the legal process, was developed by Wexler and Winick (3), in the US in the 1980’s and is based on the practical premise that findings from the behavioural sciences, predominantly psychology, can inform and improve how litigation is carried out. More recently, professionals working in the civil justice system in Europe (4,5) have addressed how psychology and law can constructively interact.
For example: -
• Individual, idiographic approaches to assessing claimant trauma and distress
• Systems or organisational approaches to how the civil courts operate
• Ways to enhance claimant responsiveness and satisfaction with services received
• Process improvement in expert skills and ‘expert-other’ interaction
• Total Quality Management in law firms, the courts and medico-legal agencies
• Dispute/conflict resolution via the innovative Joint Statement process, and A.D.R.
The field of psychology and law within the context of civil justice suggests many areas for professional, inter-disciplinary and research-oriented investigation. Figure 2 - 4 below indicates three of the medico-legal relevant to this discussion.
Starting at the point of a personal injury event such as a road traffic accident or work accident through to the conclusion of litigation, there are many psychosocial processes involving claimants, lawyers, medical experts, barristers and the judiciary which can affect any one particular case and assessment of damages. The main branches of psychology which are applicable to different aspects of the medico legal trail and are illustrated in Fig. 5 below:
These branches are summarised below: -
a) Clinical: The understanding of a claimant’s personal injuries in terms of diagnosis, attribution and prognosis in study; the formulation of treatment recommendations.
b) Social/Communication: The understanding of interpersonal communication between claimant and professional, and between professionals; the behaviour of professionals in group situations e.g. case conferences and court hearings.
c) Organisational: The behaviour and interaction of professional lawyers in law firms and court settings; the wellbeing and the resilience of lawyers.
d) Occupational: The understanding of legal and medico-legal work processes; time, people and paper management; process improvement.
e) Cognitive: The understanding of how thoughts and ‘schemas’ of claimants and professionals affect their outlook, attitudes and behaviour, and the specific area of neurocognitive processes including memory and attention.
f) Conflict Management: The understanding of why legal and medico-legal conflicts exist and how best to resolve them, via the theme of advanced face-to-face and written communication skills.
The Psychology of Communication: What is it?
At several of the steps in the medico-legal ‘trail’, and the court hearing trails it is crucial that the lawyer communicates effectively with other legal and clinical professionals. For example, he/she needs to understand how a medical expert uses classification schemes, assesses severity and pre-existing injury/symptoms and, through experience, appreciates the multi-dimensional approach that each expert utilises to assess reliability and truthfulness.
The lawyer will be faced with plenty of opportunity to communicate with claimants and other legal professionals in written form, telephone and face to face contact, Lawyers have a high level of communication skills utilising some or all of the micro skills of effective communication resulting in their contact being productive and effective.
In particular, lawyers need to be:
• Accessible by telephone or email, and not play the ‘busy’ card (e.g. I’m preparing for court; I’m in conferences all week) - short but important phone calls which take a maximum of 5 – 10 minutes can be made over a 24 hour period including out-of normal hours.
• Correspondence over difficult or contentious matters can be undertaken in a pleasant (if formal) manner and style, preferably with clear focus on what ‘next step’ either party could take which would be helpful or beneficial.
In principle, Lawyers should maintain a high level of accessibility in order to encourage and not hinder rapid process and resolution of litigation.
Positive Lawyer-Client interaction was explored by Elbers (14) in a Netherlands based centre of Law and Health.
Their main points were: -
1. Positive characteristics for Lawyers were empathy, discussion, independence and expertise, in both areas of Procedural Justice (getting things done; the way decisions are made) and Therapeutic Jurisprudence (involvement of clients; empathy; care).
2. Lawyer dis-engagement (i.e attitude and poor communication) was one predictor for worse claimant recovery.
As a result they stated that the following skills or ‘preferable lawyer characteristics’ were the beneficial application or display of:
a. Communication: Client involvement, Information provision, Client-preferred mode of communication and frequency (every 2 months minimum)
b. Empathy: Compassionate, interested, accessible and friendly, Empathic and genuine (early on) Business- like (later on)
c. Decisiveness: Active, ‘bias for action’, Initial contact and action, not passive
d. Independence: Open and honest attitude towards insurer, Direct manner contacting medical experts
e. Expertise Information giving about litigation process and eligible damages, Efficient not careless.
It is crucial that the legal professional communicate effectively with each other. E.g. the expert needs to understand the lawyer’s need for definitive and logical opinions on which they can base quantum assessments.
Micro skills of Effective Communication
Lawyers have a high level of communication skills utilising some or all of the micro skills (15) of effective communication (see figure 8 below) resulting in their contact with experts being much more productive.
More training and professional development opportunities are needed to improve knowledge and understanding of psychological process by legal professionals.
At several steps in the medico-legal ‘trail’, it is crucial that the expert and lawyer communicates effectively with their chosen client or colleague. The expert witness will be faced with plenty of opportunity to communicate with experts and lawyers in written form, telephone and face to face contact. They need to have a high level of communication skills utilising micro skills of effective communication.
Experts should maintain a high level of accessibility to lawyers in order to encourage and not hinder rapid process and resolution of litigation.
Experts and Lawyers need positive characteristics of empathy, discussion, independence and expertise, in both areas of Procedural Justice (getting things done; the way decisions are made) and Therapeutic Jurisprudence (involvement of clients; empathy; care).
The specific and crucial area of impartiality and neutrality, which is key for all legal and medico-legal professionals has been recently discussed (16) with its emphasis on emotional intelligence and impartiality micro skills.
What are the social skills of impartiality?
We know that an expert or legal opinion must be robust and able to tolerate, withstand and react to the challenges of debate, opposing side’s expert and legal opinion, at various stages of the litigation trail. Such as: -
1. Claimant examination and re-examination
2. Meetings run by counsel
3. Attendance at court
4. Case conferences
5. Between-Expert discussion (joint statement discussion)
6. Cross examination in Court or deposition.
These stages and many others require a high level of effectiveness and advanced communication skills from expert and lawyer alike. These can be measured as a general expert impartiality trait but a necessary training and development requirement is the subdivision into its consistent micro skills, similar to the Ivey method which was originally applied to the counselling and therapy skills back in the 1970’s. Inherent in the Ivey Micro skills approach was the learning to be ‘intentional’ about utilising communication skills. The person needs to know and be aware of using any one particular micro skill when doing so.
From an analysis of 40 expert witness psychologists through peer supervision, case discussion and general inter-professional debate, the following key social skills, of impartiality have been identified (16): -
Non-verbal attending: Sitting still, observing and listening. Encouraging the other person to ‘open-up’
Active Listening: Using questions and summarising to encourage the claimant to repeat his/her ‘story’ to maximise the ability to detect consistency or inconsistency. Reflecting or paraphrasing information to clarify what the claimant is communicating. Identifying sources of bias (actual or potential). Displaying sincerity, integrity. Avoid interrupting. Use paraphrasing and summarising accurately.
Influencing Skills: Maintaining empathy but not agreement (or disagreement). Withholding knowledge where appropriate to encourage claimant selfdisclosure. Being even-handed and fair. Building and maintaining trust. Avoiding displaying participating or bias. Treating own and others views equally (time; emphasis; interest). De-personalising debates.
Complex Skills: Emotional Self Awareness (identifying bias, over-identification). Emotional self regulation regulation (managing expression of feelings). Manage sympathy/empathy interface. Understand internal conflictual feelings. Maintaining focus on opinion and its implications.
Skills Interaction: Develop emotional intelligence. Display logical neutrality and impartiality. Resolve conflicts in neutral way. :
Intentionality and Microskills: The Role of Training and CPD
In order to be able to interact and deal completely with many people in many different legal situations, professionals need to be flexible, learn new ways to interact and understand one’s ways of ‘being’ with others. Legal professionals we meet have multiple issues and concerns. ‘Intentionality’ is a core goal of effective communication, and results from being aware of our own responses and possible responses and their effects and outcomes – it means understanding our competences and deciding from a range of alternative communication-based action. To begin with, our understanding of the micro-skills hierarchy shown in figure 10 and 11 (the pyramid for building intentionality) is crucial.
Understanding the psychology, the human factors, which are relevant to the many aspects of the medicolegal trail is crucial – within this, interpersonal communication is of paramount importance. Some examples of this are shown below in Figure 11: -
One key aspect of the litigation process is ‘conflict resolution’ via a negotiated settlement, hearing process, joint statement or Alternative Dispute Resolution (ADR). All these processes involve, at some stage, certain key communication micro-skills such as:
1) Identifying and clarifying mixed messages
2) Understanding incongruity in messages
3) Managing conflictual communication
These are summarised using the adapted Ivey Micro skills Model in figure 12 below:
Figure 12: Micro Skills Hierarchy (adapted from Ivey, Ivey & Zalequat, 2014)
How can confrontation management help you? Although all communication skills are concerned with understanding and facilitating change, it is the confrontation of discrepancies that acts as a lever for the resolution of claims within our adversarial legal context. Most legal professionals come to a meeting seeking some sort of movement or change. Yet, at times, they may need to move beyond their issues to realise a wider solution. Confrontation is basic to helping this process.
Knowledge and skill in confrontation result in the following:
u Increased ability to identify incongruity, discrepancies, or mixed messages in behaviour, thought, feelings or meanings.
u Ability to increase talk with a view toward explanation and/or resolution of conflict and discrepancies.
u Ability to identify change processes occurring during the meeting, using confrontation skills.
u Ability to utilize confrontation skills as part of mediation and conflict resolution.
It is important that both academic and practitioner groups are active in promoting the understanding of the interface between Law (and legal systems) and psychology in the context of civil cases and litigation, and thereafter to provide education to legal students and practitioners on these issues. This collaboration should inform the scientific, medical and psychological communities on the one hand, and legal communities on the other, and also the public, about current research and practice in the area of science and law (18).
Civil courts admit evidence from health care experts in order to assess injury and determine quantum. It points to a need for Law and Psychology to address the use of science, and both sectors’ narrow constructions of rationality and logicality which can often have the effect of divorcing science and ‘facts’ from their psychological and social context (19).
Both lawyers and psychologists groups have significant expertise to increase the understanding of how these two areas (Law and Psychology) interact in the modern legal world and to promote policies which clarify and solve legal-oriented challenges. Multidisciplinary research and education can make a major contribution to the generalisation and dissemination of medico-legal knowledge and, as a result, improve the decision-making processes undertaken by judges, lawyers, jurors and scientific/medical experts. Both US & UK legal frameworks and practices have an inbuilt uncertainty which individuals and professionals have a variable tolerance of and ability to manage, especially after evaluating contentious scientific evidence in legal claims. This issue of uncertainty tolerance is nowhere better exemplified than in the two crucial areas of credibility assessment and judicial decision making. These two areas and the emphasis on legal communication is currently under investigation by the first author and his colleagues, plus colleagues in the Law School, Birmingham City University.
In addition, the first two authors are investigating the differences between the UK and USA system in the use of negotiated settlements using cross-expert discussions.
1. Koch HCH, Palmer H, Reay K (2017) The Interface Between Psychology & Law: Continuous Improvement in Claimant, Lawyer and Expert’s Experience. Expert Witness Journal. Spring.
2. Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.
3. Wexler D and Winick B (1996) Law in a Therapeutic Key. Durham.
4. Koch HCH and Diesen C (2015) Contemporary 21st Century Therapeutic Jurisprudence in Civil Cases: Building bridges between Law and Psychology
5. Koch HCH, Diesen C, Boyd T, Hampton N (2016) 21st Century Agenda for the Justice System: Therapeutic Jurisprudence and Total Quality Management. Solicitors Journal. January.
6. Koch HCH (2017) Special Edition on ‘Trauma & its medico-legal implications’. Mathews Open Access Journals, 2, 1 – 11.
7. Koch HCH, Cleary A, Mackinnon J & Willows J (2017) Chronic Pain and Understanding the Interplay between Orthopaedic and Psychological Aspects: A Case Study. MOJ Public Health. May 2017.
8. Koch HCH, Elson PA (2017) Impartiality of medico-legal experts. The Expert Witness Institute Newsletter. Spring 2017.
9. Koch HCH, Akehurst L & Easton S (2017) Judging Credibility of a Road Traffic Accident claimant. Journal of case reports and studies. Annex Publishers. April 2017.
10. Koch HCH & Diesen C (2017) Koch HCH (2017) Therapeutic Jurisprudence – Continuous Quality Management and Positivity in the Civil Justice System in Sweden and UK. MOJ Public Health. February 2017
11. Koch HCH, Court K, Bates S (2016) Medico-Legal Implications of Assessing Unreliability in Civil Compensation Cases: A Case Study Reflecting Potential Unreliability. Scholarena SAJ Case Reports. February 2017
12. Koch HCH, Carleton RN, Cosway R (2017) Investigating Expert Witness Uncertainty: A Single Case Study Approach. CP Case 1(1), 1-4
13. Koch HCH (2016) Medico-legal case commentary: Interface Between Clinical Opinion and Legal Case Report Reporting in Personal Injury Litigation. Mathews Open Access Journal. April 2016.
14. Elbers NA, Akkermann AJ, Cuipers P & Bruinuels (2012) Procedural Justice and Quality of Life in Compensation Process. Injury. Nov. 44 (11) 1431-6.
15. Ivey A (1971) Micro counselling: Innovations in Interview Training. Servingfield, Illinois.
16. Koch HCH, Humphreys K, Byram V, Livingstone L, Wilson S (2017) Communication Psychology in Civil Law: The micro skills of impartiality and neutrality. Expert Witness Journal. December 2017.
17. Ivey AE, Ivey MB & Zalaquett CP (2014. Intentional interviewing and counselling: Facilitating client development in a multicultural society (8th ed.). Belmont CA: Cengage Learning.
18. Cooper SL (2016) Forensic Science Identification Evidence. Journal of Philosophy, Science and Law. 16: 1-35.
19. Koch HCH, Hampton N, Midgley S and Tanner R (2017) Current Developments on the Interface of Psychology and Law in Civil Justice: Reconciling Law, Science & Policy. J Psychol Cognition. 2(2): 83-85.
All authors can be contacted via www.hughkochassociates.co.uk.
Dispute Resolution analysis: Colm Nugent, barrister, of Hardwicke chambers, examines the High Court’s refusal to grant the claimants permission to adduce in evidence chapters of a book written by a defence witness which they suggested conflicted with the evidence he had given. This article was originally published for LexisNexis PSL