FJC Distances Itself from Experts Report

The letter below has just appeared in my inbox. It answers some of the questions I had been pondering, and a few I hadn’t thought of.

For ease of reference other relevant reading on this blog can be found here: Experts in Family Courts, Experts Upon Experts, and Experts, the Press and a Sloppy Approach to Evidence Based Reporting.

 

Mrs Westmacott et al

By email.

17 April 2012

Dear Sirs

 

Professor Ireland’s Research

Thank you for your letter, sent on behalf of a number of your colleagues, dated 8th April.

You ask several questions relating to Professor Ireland’s study, recently published by UCLAN. In responding, I follow the order set out in your letter.

How was the research instigated and was a process of tendering followed?

The research proposal was first discussed in the Experts Committee of the Family Justice Council in late 2008 and early 2009 and Professor Ireland was asked to submit a proposal to the Projects Committee of the Council. The issue first arose because of anecdotal evidence suggesting a level of concern about the quality of some psychologists reports used in expert evidence in family proceedings. Professor Ireland submitted a proposal and it was considered by the Projects Committee and then approved by the Executive Committee of the FJC. The proposal then went through the procurement and Data Access Panel processes required by the Ministry of Justice and HMCTS. Professor Ireland has indicated that the research proposal was given ethical approval by UCLAN.

How was this research team selected from any competitors?

Professor Ireland’s proposal met the criteria for a single tender.

What is the nature of FJC involvement with and support for this study?

The Council part funded the study which was submitted to the FJC, as agreed, for review and with an option to publish.

What is the FJC’s view of the quality of the study?

Four academic and professional reviewers commented on various drafts of the report, on behalf of the FJC, and all took the view that the report would require some amendment before the Council should publish it. Professor Ireland made a number of amendments but, ultimately, the FJC declined to exercise the option to publish the work. However, as only part funders the work was not the intellectual property of the FJC, but of UCLAN which has promulgated the material on their own website.

Does the FJC endorse the results of the study?

The FJC understands that the document published by UCLAN is a summary of the findings of the study. The Council feels the study would benefit from further academic assessment and review. To this end, the Council has invited the authors to submit a full write up of the paper for publication in a peer reviewed journal, so that the methodology, findings and conclusions can be appropriately debated in the academic and professional community, but understands that this has not yet been done. The FJC considers that the most robust evidence undergoes a process of academic peer review and achieves publication in appropriate journals. Any piece of evidence must be considered and evaluated, but naturally less weight can be given to material that has not undergone such a process. The document so far published on the UCLAN website does not currently meet the usually recognised criteria for peer reviewed publication.

Do you share any of our concerns about the execution, write up and publication of this research? The FJC has already commented on the limited methodology of the study and feels it important to take a balanced view of the aspects of the study that contain value, which were emphasised in the Council’s press release.

Would you reassure us that the Family Justice Council is neither recognising nor endorsing the “Ireland Standard”? The FJC has neither promulgated, nor recommended, the use of ‘Ireland criteria’ for expert witnesses. The FJC has been developing consensus based standards for experts and is due to publish these for consultation soon.

How do the FJC intend to use the research?

The FJC is working to improve quality, supply and best practice in the use of expert witness reports in all specialisms. The study provides a reminder that appropriate quality and validity measures must always be applied by the court to expert witness expertise, and reports, to ensure fitness for purpose in the family courts. The FJC has, from the outset, considered the study as a first step in a process intended to promote debate on how to improve the quality assurance of expert evidence used in family proceedings. The Council will be considering a number of pieces of work relating to improving supply, quality and best practice in the use of expert witness evidence at its next meeting on 29th April.

If anything in this letter is unclear please feel free to contact me on the telephone number or email address above.

Yours faithfully,

 

Alex Clark

Secretary to the Family Justice Council

Experts in Family Courts

I don’t subscribe to The Times, but whilst waiting for my taxi to court yesterday I came across [a letter in*] yesterday’s edition from Psychologist Sam Westmacott:

Sir,

Professor Jane Ireland shocked psychologists when she published her research on expert witnesses (“The shocking tale of a mother seeking help” Camilla Cavendish, Opinion, Apr 12). Her data remains secret and un-reviewed. Normally, research is considered by other scientists who check that the conclusions drawn are based on sound evidence. Professor Ireland could not publish in an academic journal without that review. She wrote an article for a newspaper and made her claims on television.

Her claims were of profound concern to those of us working in the family courts and even more alarming for the families we assess. Her core claim that a fifth of psychologists working as expert witnesses were unqualified was not proven by the evidence in her report. 

She made the claim on the basis of the qualifications printed in each expert report. The authors were not contacted by the researchers to establish whether they met her stated criteria of membership of the British Psychological Society (BPS), registration with the Health Professions Council (HPC) and further training beyond their basic qualification.

I and many psychologists publish a short-form CV in expert witness reports. On that alone, I would be consigned to the unqualified fifth, although I am a member of the BPS, registered with the HPC, and have a range of additional qualifications. How many of that fifth were wrongly identified?

Sam Westmacott, Watchet, Somerset.

Other relevant reading on this blog: Experts Upon Experts, and Experts, the Press and a Sloppy Approach to Evidence Based Reporting.

*typographical error corrected 17/4/12

UPDATE 18/04/12: The following relevant authority in which Dr Westmacott is named has been drawn to my attention: L (children), Re [2006] EWCA Civ 1282.

The Ethics of Friending

The Bar : meet Social Media…Social Media : meet The Bar. How doo you doo? *whispers – don’t shake hands whatever you do!*

The blogging bar is small but has grown exponentially since I struck out almost alone in 2007, to the snooty derision of certain colleagues. Even those members of the bar who still rely on a typing service rather than their own fingertips are beginning to pop up on Linkedin, no doubt prompted (dragged) by more savvy clerks and Chambers CEOs. And a reasonable few are embracing twitter, or at least taking a curious peek at it from the sidelines. Appropriate caution and a bit of healthy skepticism are one thing, but what of the ethical dimension? There are plenty of rules of conduct that apply to social media generally, and a lack of regard to these can result in a twitter storm or unpleasant trolling incident for the naive or ill prepared, but above and beyond this – are there ethical considerations particular to the bar? I think there are. And I don’t think that we have thunk them through enough just yet.

Client confidentiality is an obvious one (and for family lawyers contempt of court arising from the privacy of proceedings). It’s been dealt with before (e.g. here) and I won’t rehearse it here but it’s pretty fundamental and it one that a surprising number of lawyers on twitter seem to get wrong. What you tweet or blog may be anonymous to most people, but will it be unidentifiable to your client, your opponent, the other party or the judge who sees what you’ve posted, with your location visible? There are judgment calls to be made all the time when we blog about real clients and real cases.

And as the Geeklawyer episode recently demonstrated it is possible for tweets to bring the profession into disrepute (although the Geeklawyer case was about more than just conduct by tweeting). Whilst most people with a pinch of common sense don’t get too twisty or hysterical about a poorly judged tweet, twitter is full of people without such common sense who thrive on frenzied and immediate overreaction. So it pays to be careful. It is possible to libel, offend, harass or commit a criminal offence all in 140 characters or less.

But actually what prompted this post was an impromptu discussion about connections on Linkedin, arising from a chat over a work-avoidance cuppa char and a mutual exchange of the more bonkers requests we had recently received. Twitter and Linkedin have both been really useful ways of making connections with people I would never have otherwise known, and of sharing ideas and conversations with a broader range of people. I have connected with lots of really interesting and likeminded people through social media, and generally this outweighs the number of tiresome idiots. Some are colleagues at the bar, some are solicitors in firms who have instructed me, some in firms who have never instructed me (and who never will for reasons of geography), some are clerks at other chambers. Some are litigants or campaigners or employees of organisations. The great thing about twitter is that it is a space for conversation between people who might in other circumstances see themselves as competitors. If you use twitter well you can filter out the dross, the obvious marketing drivel, and find the stuff that is mutually interesting. There is a sharing of information, expertise and resources that I don’t see elsewhere. And the blogging community is extraordinarily supportive in a collegiate sort of way. I often receive emails from newbie bloggers asking for help or guidance and I readily give it; I myself have received unasked for support from other bloggers when I have faced controversy or difficulty.

So social media is an environment where normal barriers are broken down. But in our everyday job as lawyers these barriers and boundaries on conduct and on relationships still exist. So what about independent experts? A colleague recently said to me that she accepts any connection request that comes her way. A discussion then ensued: If an independent expert were to follow you on twitter should you follow back? If an independent expert on Linkedin sought to connect should you accept? Her view was, “Why on earth not?”. Mine was, “Definitely not!”. The third colleague’s reaction was “I’ve never really thought about it”.

For some people following someone on Twitter or connecting on Linkedin means not a lot – it does not signify friendship or closeness, so what’s the problem? But although I’m not “friends” with all my contacts I don’t share that view. I have had a number of follows or connection requests from independent experts: I don’t follow back and I have declined to connect. Some are unknown to me, they are usually counsellors or psychologists and likely I think to be hoping that a broader network will lead to instructions. For my part I would never recommend an expert based on a Linkedin profile or connection and I’m rather offput by what feels like touting for business. Some however are experts I have encountered at court – sometimes experts I respect and others who I have less favourable views about. I don’t want to cause offence but I tend only to connect to people I know or where I think there could be some mutual benefit to the connection (and when I say mutual benefit I don’t mean pecuniary, it might just be an interesting conversation). I don’t think it’s appropriate to include in my network people who may be acting as independent experts in cases upon which I may be instructed in future. That’s not to say that I think a Linkedin connection would in fact compromise their independence (or mine), but I don’t think it looks so great. And in a world when lay clients often look up their own and their opponent’s counsel on the internet, click through from the chambers profile to Linkedin…it’s not hypothetical. I know at least one colleague who is being followed on twitter by a litigant in person on the other side of a case he was working on. I’d put money on his Linkedin profile having been reviewed by said litigant in person.

The counter argument is that there are out of court encounters between professionals working in the family justice system happening already – at social events or training events, conferences, committee meetings etc., so what’s the difference? The difference is that they are not open to interpretation as a public statement of allegiance or endorsement in the same way as an active follow or direct connection. And frankly I’d rather avoid the waste of time argument that it might one day prompt.

And in truth I think it would be uncomfortable to be connected to an expert I might one day have to robustly cross examine, challenge or even criticise. I don’t think it would alter the vigour with which I might conduct that task, but might my client reasonably think it had if after the event she saw I was chums on Linkedin with the expert who had testified in favour of the other side? Again, not really a discussion I ever want to have, thanks.

I think Twitter is slightly more nuanced, for a couple of reasons. Firstly, a person can follow you without you following back. And it’s generally good twitter manners to follow back. It’s accepted I think on twitter that a follow is not necessarily endorsement. I follow a number of twitter accounts out of interest, or to keep track of the stream of rubbish that flows forth. And I’m sure many of my followers think I’m a [ corrupt / moronic / boring / insert appropriate adjective ] bleep in exactly the same way. But I do still generally decline to follow experts on twitter, unless they are talking about something I really want to keep track of.

It seems to me that in these days of heightened anxiety about the probity of family court proceedings, of experts and of lawyers, we can keep our own lives more simple and minimise the chances for confidence in the justice system to be diminished by steering clear of social media connections with experts. Perhaps that’s more pragmatism than ethics, but it’s where I’m coming down at the moment.

I’d be really interested to know what other people’s views are on this. I think many of the same issues arise for solicitors as barristers, but in some respects the problem seems more acute for trial advocates. Am I over thinking this or is it a genuine issue that we need to grapple with?

In the meantime, some of you will now know why you never got a reply to that connection request or a follow back. It’s not personal. 😉

EDIT 13/04: H/T to Laurie Anstis (@ljanstis) for reminding me about THIS : Law Society Guidance on Social Media.