by Koch HCH, Palmer H & Reay K
The field of ‘psychology and law’ is now recognised as an important area of practical study aiming to understand and enhance justice in criminal, civil and family contexts (1). Psychologists and lawyers use interchangeable terms such as ‘legal psychology’, ‘therapeutic jurisprudence’, ‘psychological jurisprudence’ when debating how psychology impinges on law, in practice, research and/or educational ways. Every area of psychology (e.g. developmental, social, clinical cognitive) is relevant to some aspect of law (2). This possible application emerged in the early years of the twentieth century with Sigmund Freud’s clinical work, and Musterberg’s experimental /court room work. In 1969, the American Psychology-Law Society AP-LS) was started followed by a number of journals addressing legal psychology (e.g. Law and Human Behaviour; International Journal of Law and Psychiatry). The relationship between the two disciplines has expanded and deepened over the past 40 years with considerable optimism on both sides.
Both professions, Psychology and Law, aim at ‘uncertainty avoidance’ in their respective searches for truth and justice. Uncertainty is intrinsic to the scientific and legal processes. Over time uncertainty is reduced, and conclusions revised by additional, new or contrary data. Law is important and shapes our lives from ‘womb to tomb’. Many issues confronted by the legal system are inescapably psychological.
Contemporary 21st Century Therapeutic Jurisprudence
Therapeutic Jurisprudence (TJ) developed by law professors, Wexler and Winick, in the US in the 1980’s is based on the practical premise that findings from the behavioural sciences, predominantly psychology, can inform and improve how litigation is carried out. Practical examples have predominantly emerged from the context of criminal justice e.g. problem solving courts, drug treatment courts, eye witness testimony (3). More recently, professionals working in the civil justice system in Europe (4,5) have addressed how psychology and law can constructively interact. The UK/Sweden collaboration (4) has illustrated the relevance of many psychological processes: -
• Individual, idiographic approaches to claimant functioning and behaviour
• Systems or organisational approaches to how the civil courts operate
• Ways to enhance claimant responsiveness and satisfaction
• Process improvement in expert skills and expertother interaction
• Total Quality Management in law firms, the courts and medico-legal agencies
• Dispute/conflict resolution via the innovative Joint Statement process.
A ‘TJ’ Agenda for 2017
Where and how do we go from here? The field of psychology and law within the context of civil justice suggests many areas for professional, inter-disciplinary and research-oriented investigation. Figure I below indicates four areas for scrutiny and approximately sixteen specific lines of enquiry which we are keen to develop during 2017.
In order that the key aims of civil justice (just, fair, appropriate, reasonable, understandable and resolved) can be achieved, the underlying principle of this paper is that psychological factors that impinge on the several ‘players’ and ‘processes’ in civil litigation need to be understood.
As in other sectors, both public and private, the legal system is an ideal context to apply the principles of Total Quality Management to (4, 6) such as customer
responsiveness, continuous process improvement and staff empowerment. TQM and TJ usefully address vision and core values within a framework of continuous quality improvement,
There are many internal and external ‘customers’ in civil litigation.
a) Claimant Stress
It is widely acknowledged that the main customer, the claimant, experiences a relatively high level of stress during the litigation process.
Four main stresses are:
• Stress resulting from the litigation process alone (e.g. court procedures, depositions);
• Stress secondary to financial difficulties (e.g. loss of income, legal fees);
• Stress from a combination of the initial trauma (e.g. road traffic accident) and litigation process;
• Stress due to uncertainty in the claimant’s life
(e.g. when will litigation end, return to work).
Three separate groups of people who become distressed during litigation included:
• Those who become progressively more agitated and begin to exhibit increasing rates of posttraumatic symptoms following repeated interviews;
• Those who have not previously exhibited post-trauma-like symptomology, but begin to do so once they commence serial interviews;
• A group of claimants who become irritated by and resentful of the experience of repeated interviews, but who do not develop a trauma-like response to the process.
Specific reasons for stress include: -
• Being asked repeatedly about the event;
• A change in the person managing the case (legal);
• The prospect of perhaps needing to go to court;
• Getting information from the case handler;
• Feeling that the claim is taking too long;
• The time and location of appointments with medical experts;
• The financial effects of the accident;
• Understanding the entire claims process
While we must acknowledge the inevitability that litigants will experience some elements of stress which cannot be ameliorated during the process of litigation, e..g the uncertainty that now exists in their lives and financial loss, some stress-reducing factors can be attended to:
• Use of a structured interview that would gather the relevant background information needed by all professionals involved;
• Typed chronology of GP attendance history, so that GP attendance for accident-related problems is known to the expert prior to the assessment;
• Clearer dissemination of information to claimants about the litigation process;
• Full description of the index accident provided in the instruction letter.
b) Feelings of injustice
Claimants frequently display anger and resentment when conducting their claim. This may be mild and readily understandable, given the stress claimants
experience or may become so entrenched that it becomes clinically significant and in need of treatment. A specific assessment of what aspects of the index event were experienced as unjust and what the claimant would have needed/still needs to feel better is frequently warranted. This is where Restorative Justice can have a role by understanding the psychological impact of this injustice.
c) Access to diagnosis and treatment
Claimants who experience physical and/or psychological injury or symptoms deserve rapid assessment and diagnosis and, where appropriate, recommendation and provision of the appropriate type of treatment. Claimants need to feel able to access treatment for psychological problems independent of their claim even if this makes the process of their claim more complex.
d) Rapid claim resolution
One of the key sources of stress for claimants is the length of time a claim takes to be resolved. All the professionals involved may contribute to this duration, with its associated lack of explanation. An understanding of reason for delay can alleviate this stress. It is reasonable for claimants to be given an expectation of how long their claim could take.
Judges, Barristers and Lawyer Experience
a) Understanding psychological factors
It is important that all three branches of professional law practice understand basic psychological principles of behaviour change, thinking, memory and neuropsychology, social influences on behaviour and individual differences between people’s personality and actions. In addition, key psychological concepts of
reliability, validity and probability are crucial. All of the above impinge on the court room (e.g. eye witness accuracy, evidential reliability), the case conference and the interview.
b) Understanding evidential reliability
Experts in all fields have a professional duty to improve the reliability of the evidence they provide to the courts. (7) Research is currently underway in Portsmouth and Cheltenham to operationalise credibility variables (8) in order that experts can give a logical coherent response to the legal question “is this
c) Case law & psychological commentary
Legal professionals resolve conflicts and decide ultimately on quantum with recourse to case law and recent precedents. Psychological commentary has much to offer to illustrate and clarify complex issues on causation, attribution, and reliability of evidence, both claimant and expert (9).
d) Advanced communication skills
The litigation process relies heavily on social interaction and communication between various professionals and public. The ability to display advanced face-to-face (and written) communication skills is crucial (10)
e) Understanding scientific uncertainty
Recent research (11) into the validity of scientific evidence in criminal cases rings ‘clear bells’ in civil litigation in terms of judges needing better information and training in areas such as chronic pain, traumatic stress, return to work ability and motivation, and the validity of psychometric and other measuring instruments.
a) Report writing process
Experts need a ‘continuous improvement’ approach to periodically enhance the logicality, style and brevity of their reports. Of particular importance, is ensuring
that opinions are, whenever possible, evidencebased, and also taking into account ethical consideration. (12)
b) Assessing unreliability and untruthfulness
Experts deal with written, verbal and medical information when compiling their opinions. Reliability and validity issues exist in each of these three areas and
challenge the expert to construct a robust and impartial opinion (13)
c) Tolerance of uncertainty
The courts require experts to have confidence in their logicality and ability to argue their opinion robustly. However, in all opinions, there is a level of uncertainty and experts show differing levels of tolerance of this uncertainty. Research is currently underway in Cheltenham to investigate what constitutes experts’ tolerance of uncertainty.
d) Managing claimant expectations when faced with conflicting data.
The claimant presents his/her ‘story’ or narrative in his/her own way. Despite crucial issues of reliability, it is important for the lawyer and expert to manage the
claimants’ expectations e.g. about time, interview perception; access to counselling/therapy. An expert may, as part of their assessment, assign a diagnosis as
a way of capturing and communicating the nature and severity of psychological symptoms. Experts need to be aware of the way a claimant may experience the
psychological impact of a diagnosis and take steps to aid understanding of this as part of a medicolegal interview.
Continuing Professional Development and Training
Law and Psychology training needs to continue to broaden its base to include interdisciplinary contact, in areas such as medical law and ethics, criminology and social-legal studies, and encourage a sensitivity to issues of ethnicity, gender and class. The interface between Law and Psychology is a fundamental area for further development with issues such as fraud and deception detection; dispute resolution; and advanced face-to-face communication skills being seen as central to understanding a lawyer’s world and expert’s and both mindsets (14). The challenges in the 21st Century provide an opportunity for students and law firms to learn about Therapeutic Jurisprudence, Quality Management, and the ‘medico-legal mind’ and how this applies to continuous professional development.
1. Skeem JL, Douplas KS & Lilienfeld SO (Eds) (2009) Psychological science in the court room. New York. Guilford Press.
2. Costanzo M and Krauss D (2010) Psychology and Law: A cautious alliance in Forensic and Legal Psychology. Worth Publications.
3. Wexler D, Winick B (1996) Law in a therapeutic key. Durham Press.
4. Diesen C & Koch HCH (2016) Contemporary 21st Century Therapeutic Jurisprudence in Civil Cases: Building bridges between Law and Psychology. Ethics,
Medicine & Public Health. 96, 13 – 19.
5. Koch HCH, Diesen C, Boyd T, Hampton C (2015) 21st Century Agenda for the Justice System: Therapeutic Jurisprudence and Total Quality Management. Solicitors Journal, January.
6. Koch HCH (1991) Total Quality Management in Healthcare, Longmans, Harlow.
7. Koch HCH, Newns K, Boyd T & Peters J (2016) Assessing Malingering and Deception in Forensic, Judicial & Clinical Contexts: Are Various Communications ‘Congruent’? Expert Witness Journal September 2016.
8. Koch HCH, Akehurst L & Easton S (2017) Judging Credibility of a Road Traffic Accident Claimant. Mathews Case Reports Journal (In submission)
9. Koch HCH & Addy K (2016) Material Contribution & the ‘but for’ test. Legal Mind Case & Commentary. PIBULJ. April 2016.
10. Ivey A (1971) Micro counselling: Innovations in training. Springfield. IL. Thomas.
11. Cooper S.L. (2016) Forensic Science Identification Evidence. Journal of Philosophy, Science and Law, 16, April. 1 – 35.
12. Young G. (2016) Psychiatric/Psychological Forensic Report Writing. In. J. Law and Psychiatry. 49, 214-220.
13. Koch HCH & Elson P (2016) Areas of medico-legal unreliability in personal injury cases. Mathews Journal of Case Reports. 2(1); 1 – 3.
14. Koch HCH (2017) The best of the best. How can universities reflect the 21st Century Legal Sector? In Modern Law editorial, 2017 (In press).
Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates, Cheltenham, U.K and visiting Professor to School of Law, Stockholm University Sweden.
Helen Palmer, Chartered Psychologist, Hugh Koch Associates, Cheltenham & Northampton, U.K.
Keiron Reay, Chartered Psychologist, Hugh Koch Associates, Cheltenham & Wolverhampton, U.K.