Private Work as Collaboration or Confrontation
Every now and again I do some private work. Mostly when people hear about private work in forensic psychology they imagine wealth and all the glories excess money brings. It’s certainly true that I once had a whole week on Grand Canaria on the basis of private work and took a date to Sat Bains on the back of work that became grandly entitled by a judge as “The Duff Protocol”. It’s also true that I really don’t do it for the money because, in my opinion, it’s not worth the money. Is that easy for me to say? Perhaps more so than for you if you are paying nearly 10k a year for your Stage I or Stage II, but equally I am not blessed with a fridge full of Veuve Clicquot and Hackleback. My desire for this note is not to put anyone off private work but to raise an issue that I have experienced quite often and that I think it is useful to be prepared for, but also because it seems to me to be a counter-productive consequence of our adversarial legal system and how psychologists can be pulled into it.
How does private work happen?
I don’t do that much private work so am not a psychologist
who is known in legal circles. At least not for the psychology. There are
psychologists who have built companies and careers on this kind of work and are
the first-call by solicitors. I also don’t tout. I do not have a plush website
that refers to me in the third person as a consultant or principle forensic
psychologist, or a clinical director, with glossy pictures of me looking
thoughtful and dynamic, along with my equally beautiful, thoughtful, and
dynamic associates. Photoshop is good, but it is not that good. Usually I get a
job because someone can’t or doesn’t want to do a job, so I am always second
choice (which may sound glum, but has enormous advantages, a philosophy for
another day). The solicitor then gives me a little bit of information about the
case, asks me what I am likely to charge per hour (be aware that legal aid has
a limit and privately funded work has a credibility limit), and if I want the
work and they like my numbers, they send me the ‘Bundle’, which is all of the
information that they have regarding the case.
The Bundle and the interview
The Bundle can be vast and often is terrible to try to
navigate. This is both because often the material in the Bundle is of such
terrible quality that it is almost nonsensical and because it has been so badly
put together that you are reading several versions of the same document. You
have to do this. You need to read the Bundle, all of it, because until you have
you don’t know if you are reading the same thing over and over. To not do so
means you might miss something that is central to you understanding the case,
the situation, the client, and going into court with a report that is
fundamentally flawed is never a good idea. The Bundle is the basis of your
understanding and the basis of developing your interview strategy. I read the
bundle before arranging to meet the client because it helps me think about how
long I might likely need for that first meeting and things that I might want to
make sure I cover, issues that I might want to be aware of (I have done this
kind of work with people with PTSD, people with a known history of attacking
professionals, people with learning difficulties and I have learned that it is
better to be prepared).
Once I have a bit of a plan I will arrange the first
interview and I always will require that it is done at the solicitor’s offices
(unless the person is detained somewhere – that again poses some interesting
issues for another day) and always overestimate the time that I will need. I’d
rather get out early than not get the information I need. If I feel at the end
of the interview that I have enough to address the questions I have been asked
by the solicitor I will start writing the report. This is a curious task as
your role is to help the judge make a decision, based on your impartial
expertise. I do bring in psychology, research, statistics, but always try to
remember that solicitors, barristers, and judges are not psychologists.
Confrontation
At this stage everything is likely to have been quite
collaborative. The confrontation can come from two sources.
If the solicitor doesn’t like the tone of your report (i.e.
it is not supportive of their position) you might hear about it. That really
doesn’t matter, as your job is to be impartial. Your report might not be
submitted to the court, but you still get paid for your work. Sometimes you
might get some blowback (I am frequently not asked to work for solicitors again
if they didn’t like my conclusions, but as it’s not my career this schoolyard
revenge, and poor understanding of what being an expert witness demands,
doesn’t bother me) and it can make you question your understanding of the
situation and your report. As long as you feel you can justify your position
based on the information you have, and the thinking and reading you have done,
try not to let this undermine your professionalism. We are all prone to doubt
ourselves and sometimes we will be wrong, it’s important to develop some
confidence and self-belief too.
Where things can get a bit dicey is where the expert from
the other side has a different conclusion to you, and this is where I think the
real trouble lies. As I have suggested, we base our reports on the information
we have, our expertise, our reading and thinking, our psychological knowledge,
and different people, either with differences in those things or sometimes when
they are all the same, may reach different conclusions. That in itself isn’t
the primary issue – in some ways it is as one would hope that we are enough of
a science that when I add my psychological 2+2, and you add your psychological
2+2, we get the same answer – the issue is how that difference is dealt with.
The problem is that seldom do disagreeing professionals come
together to reach a consensus. Sometimes a judge demands this, but without that
the two opinions are set against one another, and this provides the barristers
for grist for the questions. Why do you disagree, do you think you are wrong,
have you been swayed by something...that can be difficult – I have been in a
situation where a barrister asked me the same question about 50 times, taxing
his vocabulary to find new ways to express the same thing, until the judge
suggested that as he wasn’t getting anywhere he might best move on. It is not
pleasant to feel brow-beaten and know that if you change one element of a
conclusion you believe in (and if you don’t believe in it then better to change
it) it will undermine anything else you have written or might say. However, the
worst consequence of this confrontation is that the client does not benefit
from professionals working together for their best interests. It might be that
they require treatment to keep them and others safe, it might mean that they
need support, or education, or that they are culpable. It seems to me that our
job in being impartial experts is not to “win” for our side, not to “win” for
our report, and really not to “win” by helping the judge, but to think about
the client and society, and reach an outcome that best serves both. As our
legal system is adversarial, as barristers and solicitors don’t like to lose,
as we can feel our professional status is on the line, this all works against
what I think is the fundamental purpose of having experts in court.
I don’t have an answer for the ‘how’ of this. We have to be
careful who we talk to when involved in a case as our behaviour could be
misconstrued as trying to impact on another witness’ opinion. One solution
would be to demand that all experts have access to the same information, and
sometimes that means that experts are forced to meet the clients that they are
writing reports about (this does not always happen) and that experts are forced
to document where they have, or why they haven’t, changed their reports based
on newly emerging information. It’s not a panacea as this all adds time and
cost to a legal system that is already slow and expensive, but I do think that
our profession has a duty to find a way to remove the adversarial component from
expertise, rather than setting us up to battle in court.
Side note
Sometimes, after our report has been submitted, we are
threatened with having to appear in court, more often than not this is where
the report doesn’t fit the solicitor’s position. Don’t show fear. I recommend
responding with great enthusiasm and saying that you are looking forward to
presenting your opinion in court and assisting the judge in making the
appropriate decision. Confidence can keep you out of the witness box, and being
confident suggests that you have done a good piece of work that you believe in,
and that is always nice.
References
Brekke, N. J., Enko, P. J., Clavet, G., & Seelau, E.
(1991). Of juries and court-appointed experts: The impact of nonadversarial
versus adversarial expert testimony. Law and Human Behavior, 15(5), 451.
Dodier, O., Melinder, A., Otgaar, H., Payoux, M., &
Magnussen, S. (2019). Psychologists and psychiatrists in court: What do they
know about eyewitness memory? A comparison of experts in inquisitorial and
adversarial legal systems. Journal of Police and Criminal Psychology, 34(3),
254-262.
Gianvanni, E., & Sharman, S. J. (2015). Psychologists as
expert witnesses in Australian courtrooms. Psychiatry, Psychology and Law,
22(6), 920-926.
Ireland, J. L. (2012). Evaluating expert witness
psychological reports: Exploring quality. Preston, University of Central
Lancashire, available online at www. ccats. org. uk/images/Expert% 20Witness.
pdf.
Loftus, E. F. (1986). Ten years in the life of an expert
witness. Law and Human Behavior, 10(3), 241-263.
Rotgers, F., & Barrett, D. (1996). Daubert v. Merrell
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recommendations for practice. Professional Psychology: Research and
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Links
BPS guidance for family courts
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