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Legal Mind Case and Commentary No. 34: Fundamental dishonesty or genuine unreliability? - Koch HCH, Gill I and Wilson S

26/05/21. This is the thirty-forth in a series of Case reports and Commentaries from Professor Koch and colleagues.

Background and summary: A further clinical negligence case was summarised recently in PIBULJ with comments from Paul Erdunast, Temple Garden Chambers, London. Issues of unreliability and dishonesty were raised by the Court and lessons drawn. Relevant factors and lesson drawn are summarised here and additional commentary from Prof. Koch and colleagues provided.

Relevant Factors: This case was Brent v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC190QB. The Court found, according to Erdunast, nine factors on which to base its conclusion that the claimant was not fundamentally dishonest, even though her evidence was significantly unreliable.

  1. Allegations of ‘fundamental dishonesty’ only came the day before the trial.

  2. One expert raised this issue, none of the treating clinicians did.

  3. No motive of financial gain was raised by the judge or expert.

  4. The claimant presented complaints in a consistent way.

  5. Initial limited disclosure was seen as irrelevant.

  6. The witness’s belief was of a genuine and significant disability.

Lessons drawn by Erdunast:

Erdunast summarised that:

  1. Allegations of fundamental dishonesty (F.D.) should be made at a reasonable time, not ‘a day before trial’.

  2. A pattern of F.D. should be looked for or excluded, and its certainty to the case ascertained (or excluded).

  3. Possible motivation for dishonesty needs clarification (e.g. financial gain).

  4. Expert Witness opinion on F.D. should be collected and given prominence.

Commentary:

The debate surrounding fraud, unreliability and its detection is one of the top issues facing the judiciary and the expert witnesses who support them with opinion and evidence.

Veracity and reliability of evidence in specific aspects of a claim or in its entirety are clearly crucial to a judgment about liability and damages. There is ambiguity or range of decision-making as to whether unreliability or dishonesty in one part of a claim can or should be generalised to the whole claim.

In a previous Legal Mind Case & Commentary (No. 9, Koch HCH and Willows J), we commented on the difficulty a judge had in deciding where to draw the line in cases involving dishonesty (Churchill Case Insurance v. Kelly). This judge had suggested that it was not uncommon to believe a claimant on one issue but not another.

All parties have a responsibility to ensure evidence produced is of the highest possible veracity, reliability and consistency. Both experts and counsel have the responsibility to identify incongruity and untruthfulness in claimants in order to assist the court in deciding upon the overall degree of veracity and its implications for awarding damages or not. (Koch, Bowe, Strachan and Daye, 2018).

It is important for the Court, lawyers and experts to consider with great diligence and logicality the evidence provided by claimants and assess the psychological variables of reliability, validity and certainty and truthfulness in order to reach a robust conclusion and judgment. Each professional uses his own rules to test the consistency and plausibility of evidence provided. The ‘truth eventually will out’ but requires a robust way to interview, interrogate, and piece together information to arrive at a final view of whether fundamental honesty or dishonesty is at play (Koch and Boyd, 2016).

It is the key to be able to obtain reliable and consistent evidence either from claimants, or from other providers of evidence i.e., experts. Claimant evidence must be and seen to be, consistent, reliable and not exaggerated, either consciously or unconsciously/unintentionally. Evidence must not be selectively produced by the claimant either in written documentation or in verbal accounts.

In addition, experts must take an impartial and logical view to dealing with the information available and produce a coherent and robust opinion (as implicit in the description ‘Expert’) and, once of that opinion, not change this unless presented with additional de-novo information (Koch, 2016).

Findings of dishonesty will adversely affect at least part of their claim and costs. All parties have a responsibility to ensure evidence produced is of the highest possible veracity, reliability and consistency.

It has been argued elsewhere (Koch, 2016) of the importance of having claimant self-report information being substantiated by GP medical records, or Occupational Health records. Without these, the evidence is not as robust as possible. In addition, it is the expert’s responsibility to clarify claimant evidence to maximise its reliability.

There are many verbal and non-verbal characteristics that are detected by lawyers and experts when interviewing claimants, some of these leading to an overall impression of incongruity and untruthfulness (Koch, Newns, Boyd & Peters (2016)). It is not necessarily the duty of the expert to be the final arbiter of untruthfulness; a complex concept. However, the expert should highlight areas of evidential inconsistency and its degree of severity, (i.e. untruthfulness) in order to assist the court in deciding upon the degree of veracity and its implications for awarding damages or not.

Likewise, the nature and origin of any additional information provided as part of the assessment process (e.g. the claimant’s medical records or any additional medico-legal reports) are carefully examined and explicitly cited in the expert’s report. Furthermore, where it is clear that further assessment would be helpful, for example by an Orthopaedic Specialist in relation to a claimant’s reports of physical pain, then this is recommended and a psychological diagnosis and prognosis may well be described as provisional (or ‘guarded’) pending the receipt of further information.

Processes such as these allow lawyers and experts to make best use of the information contained within the claimant’s subjective account, to consider this within the context of their observation of the claimant during interview (i.e. consistency and congruence) and also to assess this against the backdrop of any third party information including medical records and additional medico-legal assessments (Koch and Willows, 2016).

Who knows best? The judge or the expert?

Logic is used to reach a conclusion using the most accurate route available to us. Common sense however is not always accurate and can sometimes be based on assumptions, social acceptance and no facts.

Logical thinking in a court room context implies that experts (and their instructing lawyers) would consider their opinions carefully pre-trial and via the joint opinion process to ‘inoculate’ their individual or joint opinion against any other different viewpoint which might be levelled against them. This should then result in it being extremely unlikely that a presiding judge could raise a significantly albeit simple, alternative view which has not already been considered in the expert’s prior deliberations. The lack of focussed, close questioning aimed at obtaining specific clinical data should, at the very least, be raised in these prior deliberations.

Secondly, before rejecting the expert evidence, a judge should be mindful of giving the experts opportunity to answer his concerns that certain issues have not been appropriately addressed (Koch and Hetherton, 2016).

The Way Forward

It is incumbent on practitioners and researchers in the legal field of reliability and honesty adjudication to develop “rules” to guide the Court (judiciary; barristers; lawyers and experts) in how to identify unreliability (Koch, Mushati and Francis, 2019). These rules will encompass: -

1. Claimant’s knowledge or belief as to the facts

2. Levels of exaggeration when presenting information (medical or otherwise)

3. Attitude and style of action by the defendant which adversely affects claimant motivation.

Current field research is being carried out by the first author to develop and articulate more fully the four stages on this unreliability discussion and include clear examples of what these stages actually represent behaviourally.

This will help judges, lawyers and experts alike have a better understanding of how and why these stages differ, and how experts can assess and handle these different and complex presentations.

Figure I. Dimension of Evidential Reliability

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Authors

Prof. Hugh Koch, Dr Ian Gill and Dr Sara Wilson.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University.

Dr Ian Gill and Dr Sara Wilson, Clinical Psychologists with HK Associates.

References

Erdunast P (2021) Unconvincing and unreliable witnesses vs. dishonest ones. PIBULJ, 31.3.21.

Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort law Psychology. Expert Witness Publications. Manchester

Koch HCH, Bowe J, Stratchan R and Day S (2018) Legal Mind Case and Commentary No. 16. Fundamental Dishonesty: Honest claimants have nothing to worry about. PIBULJ.

Koch HCH and Boyd E (2016) Legal Mind Case and Commentary No. 5 Assessing Dishonesty. PIBULJ.

Koch HCH and Hetherton J (2016) Legal Mind Case and Commentary No. 10 Who knows best? The Judge or the Expert? PIBULJ.

Koch HCH, Kon T and Jackson T (2017) Legal Mind Case and Commentary No. 13 Reliability of Evidence. PIBULJ.

Koch HCH, Mushati D and Francis A (2019) Legal Mind Case and Commentary No. 21 To convince or deceive? The analysis of reliable and realistic evidence. PIBULJ.

Koch HCH and Willows J (2016) Legal Mind Case and Commentary No. 9 Dishonesty – where is the line? PIBULJ

Previous commentaries have covered

Koch HCH, Jansen F, Stockton C and Huntley F (2021) Legal Mind Case & Commentary No. 33 Judge’s opinion of Expert: Partiality and arrogance. PIBULJ. March 2021.

Koch HCH, Rydin-Orwin T, Riggs E, Gorman J and Jansen F (2020) Legal Mind Case & Commentary No. 32. What the Judge thought of the expert evidence. PIBULJ. September 2020.

Koch HCH and Bowe J (2020) Legal Mind Case & Commentary No. 31 Fixing mistakes. PIBULJ. August 2020.

Koch HCH, Fulford L, Parmar B, Francis A and Davies M (2020) Legal Thoughts: How to Improve Lawyer Wellbeing Post-COVID-19. Expert Witness Journal. Summer 2020.

Koch HCH, Sutton E, Fernandez-Ford L and Jansen F (2020) Legal Mind Case & Commentary No.30 The Joint Report and Agendas. PIBULJ. June 2020.

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