Professor Hugh Koch, Chartered Psychologist and Director, HK Associates LLP, Cheltenham, UK and Visiting Professor to Birmingham City University
Professor Nick Carleton, Department of Psychology, Regina University
Professor Arnie Cann, Department of Psychology, University of North Carolina at Charlotte, USA
Dr Laura Grundy, HK Associates LLP, Cheltenham and Abergavenny
Expert witnesses, barristers and judges all seek to obtain information, facts and evidence which is reliable, valid andcomprehensible. At any and all stages of the medico-legaltrail, legal professionals can experience feelings of uncertainty about the evidence available and about their ownabilities to interpret data in a robust and impartial manner.The ability to manage and ‘tolerate’ these feelings of uncertainty are, at one level, very uncomfortable and can leadto doubting one’s self confidence and self-esteem. At another level, however, they are a very creative opportunityto consider an issue in greater depth and learn from it forthe case in question and future cases (Koch, 2016).
This paper develops the rationale, previously presented inthis Journal two years ago (Koch, Newns and Cosway,2016). Here the authors considered predominantly the uncertainty in providing diagnostic and prognostic opinions.In this paper, we develop this theme but also broaden theperceived relevance of this concept to apply to issues of reliability and magnification, claimant memory and the questfor professional impartiality. We continue with consideringthe issue of measurement (of Tolerance of Uncertainty)and how to define and train for the micro skills of greatertolerance of the uncertainties inherent in the civil legalprocess. This builds on publications in 2016 by the secondauthor (Carleton 2016 a&b).
This paper continues the understanding of how Psychologyimpinges on the justice system in particular in relation tocognitive psychology and social/communication psychology. (Koch, 2017).
What causes uncertainty?
Whether in the expert’s clinic or in the court room, we areroutinely faced with incomplete information from claimantsand lack of comprehensive collateral information such asmedical or occupational records. The legal professionalmay asked inadequate questions, or been confined bycomplex, entangled historical symptom data. The maintypes of diagnostic uncertainty are: -
1. Inconsistency between sources of data (e.g. selfreport/GP records)
2. Unusual symptoms reported (inconsistent with widelyunderstood clusters of symptoms)
3. Magnified or exaggerated symptom self-report
4. Borderline symptoms (clinically significant/diagnosticor not)
5. Differential disruption (social/psychological but not occupational disruption)
6. Lack of confirmatory GP attendance history
7. Differential diagnosis between clinicians
8. Interpreting unreliable information from claimants
9. Understanding the interaction between pain and mood
10. Proportionally and multiple causality (e.g. two accidents)
11. Effects of litigation-maintaining symptoms
12. Interpreting poor response to therapy
13. Differentiating between different diagnoses
The task of the legal professionals is to weigh up the multi-variate evidence and use a scientific and logical method toformulate and test hypotheses using consistency to movefrom data to evidence to opinion.
Reliability and Magnification
As discussed, legal professionals deal with data and evidencewhich can, at times, appear to be unreliable. The initial uncertainty experience can at times be interpreted as, on theone hand, unconscious magnification or unwitting memory deficits or, alternatively, interpreted, in a less trustingmanner, as untruthful and, in extremis, fabrication of actual experience. This variation in possible interpretation may beaffected by legal professional overall attitude/‘world view’ orby specifics of any one individual case presentation.
Quest for Impartiality and Optimal UncertaintyTolerance
Legal professionals involved in the civil medico-legal processaim for maximum impartiality when analysing data andevidence. In order that this can be attained, a high level ofuncertainty tolerance is needed so that when faced with anunusual, inconsistent or poorly-fitting set of data, the opinion maker can consider how best to understand the relationship between inconsistent, consistent and contradictorycase-specific evidence.
Can we measure Intolerance of Uncertainty (IU)
Psychologists in the UK and Canada have carried out aconsiderable quantity of research into how this variable canbe assessed and measured. The Intolerance of UncertaintyScale (IUS) (Freeston et al, 1994; Carleton et al 2007)measured responses to general uncertainty and ambiguoussituations. They identified two factors that contributed tothis variable:
a) Prospective behaviour e.g. “dislike being taken bysurprise”
b) Inhibitory behaviours e.g. “when its time to act, uncertainty paralyses me”
With colleagues, we developed a short form which wasadapted to use with medico-legal experts (unpublished).Preliminary data indicated that this was a sensitive test topicking up variation in levels of expert witness uncertaintyintolerance. A case report (Koch, Carleton and Cosway,2017) illustrated examples which contributed to prospectiveand inhibiting factors of IU.
Table 1 – Key Contributing examples to IU
Issues Contributing to Uncertainty
Claimant behaviour in interview; claimant reaction to report/opinion; conflictual Part 35 questions; (Part 35 questions refer to a set of questions typically sent from the opposing solicitors to clarify or question the expert witness’s findings and opinion (England and Wales); criticism from ‘opponent side’ or ‘instructing side’; complaints.
2. Absent Information
Pre-interview absence of medical reports and medical records; non returned claimant information (e.g. questionnaire); absent claimant (DNA; lateness); lack of surveillance evidence; case conference; new evidence.
4.Ability to anticipate
/Having medical evidence surprisespre-interview; new information provided in court; part 35 questions.
5. Any missing data
Absence of medical records. can be problematic
8. Ability to predict future events
Absence of medical records,evidence, court process; evidence in court; follow up data in second assessment.
9. Preventing surprise events
New information provided in court;
11. Ability to organise
Awareness & understanding in advance of totality of evidence pre-and during-court; preparation of draft joint statement.
3. Letting uncertainty affect me
Conflicting self-report affect meinformation; claimant’s own uncertainty; risk of errors in reports once typed.
6. Letting action be affected uncertainty
Unpredicted and conflictual claimant behaviour in interview.
7. Functioning being affected by uncertainty
Claimant providing confusing and/or conflicting information
10. Actively affected by ‘small uncertainties
Claimants changing ’statements post interview; lawyer asking for small modification in opinion; confidence in range of opinion and final diagnosis
12. Ignoring/avoiding uncertainty
Keeping joint statement consistently close semantically with initial reports; pressure to alter opinion in joint statement
Legal Communication: The Micro skills of Uncertainty Tolerance
We know that there are many key players in the medicolegal process (see Figure I below).
Figure 1 – The Key Players
These legal professionals interact at several places along thecivil medico-legal trail (see Fig 2)
Claimants Experts (medical and other)
Defendant Insurer and lawyer
All these legal professionals have a high level of communication skills utilising some or all of the typical micro skills ofeffective communication (Ivey, 1971) shown in Figure 3 below.
So what are the specific micro skills enabling legal professionals to manage and tolerate uncertainty? The followingexamples of key micro skills of uncertainty tolerance are: - Non-verbal attending to inconsistency: - relaxed listeningto communication which is inconsistent and initiallyconfusing.
Active listening to inconsistency: - Using questions, paraphrasing and summarising to cast logical light on how andwhy data or information does not tie up together. Accurateparaphrasing to help the other person or persons reach alogical appraisal of evidence.
Influencing skills towards logicality: - Being even-handed,fair and open-minded to increase the possibility that alogical appraisal can be reached which takes into account asmuch of the available data as possible.
Complex skills to tolerate uncertainty: - Using emotionalawareness and self regulation including the managing ofexpression of feelings especially anxiety or frustration.Maintaining a focus on complex opinion formulation.
Skills interaction towards impartiality: - Develop logicalneutrality and impartiality aimed at resolving conflicts ofdata and evidence.
Uncertainty Tolerance Training
In order to be able to interact and deal competently withmany 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. Legalprofessionals 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 meansunderstanding our competences and deciding from a rangeof alternative communication-based action.
Legal professionals have significant expertise to increase theunderstanding of how the two areas of Law and Psychology interact in the modern legal world and to promotepolicies which clarify and solve legal orientated challenges.Multidisciplinary research and education can make a majorcontribution to the generalisation and dissemination ofmedico-legal knowledge and, as a result, improve the decision-making processes undertaken by judges, lawyers,jurors and scientific/medical experts (Koch et al, 2017).Both US & UK legal frameworks and practices have aninbuilt uncertainty which individuals and professionals havea variable tolerance of and ability to manage, especiallyafter evaluating contentious scientific evidence in legalclaims. This issue of uncertainty tolerance is nowherebetter exemplified than in the two crucial areas of credibility assessment and judicial decision making. These two areasand the emphasis on legal communication is currentlyunder investigation by the first author and his colleagues,plus colleagues in the Law School, Birmingham CityUniversity.
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