Archive for the ‘Case Preparation’ Category
Whether you are involved in criminal or civil litigation, before long you are likely to run into a forensic neuropsychologist and a neuropsychological exam. A new article (mostly directed at civil litigation involving adults) discusses 12 forms of bias and how to mitigate those biases. You may want to review it carefully (or have an expert witness review it carefully) prior to trial. The article is written by three practicing forensic neuropsychologists and is intended to assist both the expert witness and both sponsoring and examining attorneys. For the purposes of this blog post, which is only meant to raise your awareness of this resource, we will list the 12 forms of bias that are identified with the author’s recommendations on how to mitigate. This is an information-rich resource, so for additional background and details, please review the article itself.
Logistical and administrative biases (or how the neuropsychologist has arranged the evaluation and the sources of information upon which they rely).
Conflating clinical and forensic roles. There is a clear distinction between these roles and they should not be mixed. The authors give specific examples and describe the differences between a treating expert and a forensic neuropsychologist charged with assessing and writing a report but not with treatment or advocacy.
Financial/payment bias. The authors describe payment arrangements on a continuum from “straightforward to murky to highly biased”. They recommend a “fee for service” arrangement and offer examples of how alternate arrangements can be questioned in open court.
Referral source bias. The authors describe “Rule 26 disclosure” and how forensic neuropsychologists repeatedly retained by a specific attorney can be seen as “hired guns” by jurors. The authors describe multiple ways you can “see” a referral source bias in a testifying expert.
Self-report bias. The authors describe how some evaluators forget the importance of verifying the report of the examinee with workplace, school and family reports and prior testing to ensure the reports are accurate. They discuss secondary gain, misremembering pre and post injury events, or situation-specific amnesia.
Statistical biases (under-utilization of base rates and ignoring normal variance in test scores).
Under-utilization of base rates. Base rates are often confusing for jurors and it is important that a neuropsychologist uses them accurately even though the authors stress evidence that neuropsychologists are both unaware of base rates and under use them in their evaluations.
Ignoring normal variance in test scores. Another statistical bias is not understanding normal variance in test scores and thus making inappropriate conclusions.
Cognitive, personal and attributional biases.
Confirmation bias. This is a bias we often discuss on our blog and it is also a trap for the unwitting evaluator. Essentially, confirmation bias occurs when you use your pre-existing beliefs to support your hypotheses rather than seeking confirmation in the data.
Personal and political bias. While this may seem to be an obvious bias for the evaluator to guard against, it is commonly seen according to the authors. Additionally, they discuss a term from the psychotherapy arena: countertransference and warn against examinee characteristics “such as age, attractiveness, gender, ethnicity and socioeconomic status” that could bias the examiner either toward or against the examinee.
Group attribution error. This occurs when the examiner makes an assumption about an individual based on the belief that the “individual’s traits are representative of an entire group”. This extends far beyond race and ethnicity with examples offered of examiners who think everyone with Alzheimer’s should present in a certain fashion or everyone with head injuries should have common symptoms, or that everyone with fibromyalgia has a somatoform disorder.
Diagnosis momentum. This is the tendency for a diagnosis to be seen as unquestionably accurate as increasing numbers of people select that specific diagnosis rather than performing a complete evaluation to ensure the validity of the diagnosis of record. This could obviously have major impact on case outcome.
Good old days bias. This is a bias held by the examinee rather than the examiner that may result in self-reports that over-report the level of past function. This makes the examination of prior records imperative and its presence is often seen as a hallmark of a “psychological process that occurs post-injury”.
Overconfidence. This bias happens when an individual neuropsychologist grows sloppy in their work because they feel experienced enough to “know the truth”.
Naming biases seems to be epidemic, kind of like coming up with clever Twitter hashtags. Ultimately, the point is that people try to make sense of confusing or disruptive thoughts and feelings as quickly and effortlessly as they can, even if it requires torturing the truth. Overall, the authors acknowledge there are countless other biases that exist and this is a starting point for assessment of a forensic neuropsychological evaluation. They offer multiple strategies for the forensic evaluator to defend against biases (and thus for the attorney who wishes to examine potential sources of bias in the report). This is a useful resource to keep on hand and use to assess biases that may be present in court-ordered forensic neuropsychological reports.
Effective trial strategies for reducing biases often come from teaching jurors what the possible biases are, and how making smart and correct judgments requires ignoring or avoiding them. Warn jurors of how tempting it can be to race to conclusions, pointing out some of the pitfalls, and tipping them off that getting seduced into getting hooked into these false impressions will not only be a source of error, but for everyone who wants to be correct, it will also be a source of regret.
Richards, P., Geiger, J., & Tussey, C. (2015). The Dirty Dozen: 12 Sources of Bias in Forensic Neuropsychology with Ways to Mitigate Psychological Injury and Law, 8 (4), 265-280 DOI: 10.1007/s12207-015-9235-1
Every once in a while, I read something and think, “I could have written that!” and today it happened again. There is a deceptively simple blog post over at the Scientific American site that is actually a wonderful treatise on how to bring life to something complicated and esoteric so that people will actually understand and even care about what you are saying.
You likely remember Alan Alda from the TV show MASH but may not know that he has quite an interest in science and has spent a great deal of time and effort helping scientists figure out how to tell their stories of discovery in an engaging way. The blog post we are pointing you to today is written by a theater professional who works with the Alan Alda Center for Communicating Science but we think it’s a post easy to apply to high-tech patent or IP cases or other cases about an esoteric concept, a complex process, or medical mysteries that do not involve the living (as is the case with the upcoming blog post). .
The post tells the story of a scientist who’d won a contest for discovering something novel and significant but as he told the story of the discovery, it was dry and filled with jargon. This brief blog post shows how the scientist was helped tell a story that grabbed the emotion of the listener and you can even see before and after videos of the story itself.
Here’s the blog post: How to tell an engaging story of scientific discovery.
And here is the before and after video (with the differences in video quality explained in the blog post itself).
We like to say “every story is about people” and based on the blog post linked to above and the video showing you how the story presentation was changed—it looks like Alan Alda agrees.
Those of us who work in patent litigation are used to strange bedfellows, but this is irony at its best. You may have heard about CRISPR as it’s been all over the media with hopes and promises and endless controversy. Essentially, it is a way to edit the genome to remove hereditary diseases caused by mutated genes. Here is a nice CRISPR primer from Gizmodo.
The emergence of CRISPR has caused multiple concerns about “designer babies” and what happens if the CRISPR operator snips a bit too much out of someone’s DNA. The international symposium on CRISPR (held in December, 2015) concluded they need to be open to studying the issue further. “
The symposium final statement asserts that germline gene editing for human reproduction — that is, genetically altering sperm, eggs, or embryos and initiating a pregnancy with them — has not been shown to be safe or effective, and that for now “it would be irresponsible to proceed.” Nor should any such effort be made, it says, until “there is broad societal consensus about the appropriateness of the proposed application.”
If you are still wanting clarity on how all this works, you can also watch this 4 minute video explaining CRISPR from MIT.
In the meantime, there is a big fight going on as to just who invented CRISPR. A well-regarded scientist recently wrote an article on the history of CRISPR and has been attacked for trying to cut women out of the picture as well as not disclosing conflicts of interest. The invention has been tied up for years as researchers argue about who got to the USPTO first. Now, like King Solomon and his decision to cut the baby in half so each “mother” could have part of it, the USPTO has decided they will decide using an “interference law” already expired but in place at the time the patents were filed. Here’s what WIRED magazine says in the article:
The US Patent Office will resolve a dispute over one of the hottest biotech breakthrough of the decade, the genome-editing technology Crispr/Cas9, through an arcane proceeding that technically should no longer exist. Because the disputed patents date back to just before a new law took effect in 2013, the patent office will work out who gets credit for inventing Crispr via a so-called interference proceeding—probably one of the last such proceedings ever.
It is the sort of dilemma we can imagine causing high distress for mock jurors. Here is technology that could result in removing inherited and often deadly disease from ever developing. On the other hand, there are those who insist this technology will result in “designer babies” and that scientists cannot be trusted to behave ethically around such hot-button (and financially lucrative) issues. These are case themes that would result in strong feelings all the way around. Yet, there was collaboration amongst the scientists and we think our mock jurors would say they should simply share the wealth. And then there are those who are adamantly opposed to ownership of genetic technology…
Even in dry and often esoteric and confusing cases, ultimately the story is always about people. In this case it is the scientists on both sides of this dispute, and their respective compelling personal stories. This is one we will continue to follow, and we encourage you to follow the links in this post and educate yourself on the hope and the drama this high-tech invention is prompting.
We’ve heard for a number of years now that the untreated mentally ill are more likely to end up in prisons than hospitals. And we’ve certainly read complaints about how the police treat those with mental illnesses. But a new report from the Treatment Advocacy Center tells us that people with untreated mental illnesses are 16x more likely to be killed by the police. They offer a sobering statistic:
Numbering fewer than 1 in 50 U.S. adults, individuals with untreated severe mental illness are involved in at least 1 in 4 and as many as half of all fatal police shootings, the study reports. Because of this prevalence, reducing encounters between on-duty law enforcement and individuals with the most severe psychiatric diseases may represent the single most immediate, practical strategy for reducing fatal police shootings in the United States, the authors conclude.
This is an issue that strikes close to home for us as a videographer we knew— who developed an untreated mental illness—was killed by a police officer while fleeing from the squad car in which he was being transported for a non-violent episode, a few years ago in North Carolina. While we were shocked and distressed by the facts of that specific incident, what this report says is it appears to happen all too often. Law enforcement officials say that interactions with mentally ill individuals are the most volatile interactions they have and can quickly turn dangerous. Some police departments have begun special training programs to effectively deal with “total collapse of the mental health system in the US. People who should be wards of the hospital are wards of the street”. The reality remains, however, that few police officers have been adequately trained and that results in a dangerous situation for both the citizen with mental illness and the police officer(s) responding.
About one in four fatal police encounters involve someone with a mental illness according to the report. Other disturbing statistics include that overall, about one in 10 police encounters with citizens involve someone who is mentally ill and one in five people in prison have mental illnesses. Why does this happen? Here’s what the report says about the rate of serious mental illness and the rate of medication compliance in those with mental illness.
An estimated 7.9 million adults in the United States live with a severe mental illness that disorders their thinking. Treatment in most cases can control psychiatric symptoms common to these diseases, but the system that once delivered psychiatric care for them has been systematically dismantled over the last half-century. Today, half the population with these diseases is not taking medication or receiving other care on any given day.
TREAT THE UNTREATED.
Shifting the responsibility for responding to acutely ill individuals from mental health professionals to police has criminalized mental illness at enormous cost to individuals with the most severe psychiatric diseases, the criminal justice system and society. The mental illness treatment system must be restored sufficiently so those with mental illnesses receive treatment before their actions provoke a police response.
ACCURATELY COUNT AND REPORT the number of fatal police encounters.
The U.S. government does not possess a comprehensive, accurate database of fatal police encounters. Factors that contribute to the absence include the lack of reporting requirements that are realistically funded, the absence of standardized definitions and methods to produce consistent data, and the lack of centralized oversight. Congress must enact legislation to direct resolution of these issues and to fund the operation of a reliable federal database of fatal police interactions nationwide.
ACCURATELY COUNT AND REPORT all incidents involving use of deadly force by law enforcement.
Fewer than half of police shootings result in a death. Counting only fatal shootings produces an incomplete picture of the use of deadly force and its attendant impacts, including injury and disability. A system for tracking and incentivizing the reporting of all use of deadly force by law enforcement must be established and maintained.
SYSTEMATICALLY IDENTIFY the role of mental illness in fatal police shootings.
Severe mental illness is an identifiable factor in at least 25% and as many as 50% of all fatal law enforcement encounters, but its role has been rendered virtually invisible by the failure of the government to track or report its presence. Questions to identify psychiatric factors must be included in the official surveys used to capture data about both fatal and nonfatal police shootings.
The full report is well worth your time if you are concerned about issues related to closing psychiatric hospitals and the untreated mentally ill who end up in interactions with the police as well as those who simply stop taking their medications for a time and end up in police custody or altercations with the police.
Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law Enforcement Encounters. Treatment Advocacy Center. http://www.tacreports.org/overlooked-undercounted
Here at KTC our kids are all Millennials (and we happen to be very fond of them), so we’re sensitive to the experience of Millennials being treated like children even though they have, in some cases, been in the workforce for years. Two recent experiences bring the work of the Pew Research Center to mind.
In the first instance, during a recent focus group we asked individual potential mock jurors if they could maintain confidentiality if they found the story particularly interesting (which it was). One young man we had recruited worked in IT support and was clearly bright and articulate. As we questioned him about confidentiality, he blurted out in frustration, “Oh come on! I’m 26 years old” and we both grinned and said, “Oh, well then!” and laughed a bit harder than he probably believed the comment merited.
The next day, I took my car in for warranty work and was waiting in the service area trying to read and blog in what I’d hoped would be a quiet environment. An older woman was making phone calls to multiple volunteers for a community meal of some sort where they would require those bringing food to give the food “an interesting holiday themed name” and repeated the same lines on every call at several decibels louder than she needed to speak. She was behind me and I looked up in frustration several times only to make eye contact and share mutual eye rolls with multiple 20-somethings also obviously trying to get some work done. Finally, one of the young people sharing my tall table with power outlets went over to her and politely (and quietly) asked her to make her calls outdoors as some of us were trying to get work done. The three of us seated at the table all turned and looked at her so she knew it was not just one person making the request.
It is one thing to be in your 50s (or older) and have to ask someone older than you to keep it down in a public shared space. It is another to be in your 20s or early 30s and do the same thing and I admired the courage and assertion of that young woman who spoke up for all of us making meaningful but silent eye contact. Then I thought back to the young man frustrated by our asking him if he could maintain confidentiality (which in truth is something we ask everyone—not just Millennials) when he’d been working for a number of years and had “signed multiple non-disclosure agreements”. He probably was insulted by our laughter and for that, I apologize as well. It just struck both of us as so funny since it was not at all why we were inquiring. Discretion has little to do with chronological age.
According to Pew Research, Millennials are now ages 18 to 34 years but only about 40% of them identify with the label “Millennial generation” and 33% (mostly the older Millennials) consider themselves part of Generation X. And despite the constant media sniping toward Millennials, the Millennials themselves are the most likely generation to identify with negative labels as descriptors for their generation (while Boomers and Silents see themselves most positively). On the other hand, young adults think there is strong evidence of climate change and that we should prioritize development of alternative sources of energy. Oddly, given the Millennial support of climate change and alternative energy sources, there is no difference in how people across different generations describe themselves as environmentally conscious.
It’s a reminder to us that how we see ourselves and how others see us are not necessarily the same. Whether you are 26 or 66—there are more similarities than differences across generations. Some of us are able to maintain confidences and others are not. Some of us are tolerant and others are not (although they may describe themselves as tolerant). Some of us are organized and capable and others are disorganized and yet can still get things done. We find Pew’s work on describing the generations useful as it tells us (over and over again) how similar we all are—regardless of age. Remember that when you are approaching voir dire and jury selection. Know how we are different but also remember how we are the same.
Pew Research Center. 2015. Most Millennials Resist the ‘Millennial’ Label—Generations in a Mirror: How They See Themselves. September 3. http://www.people-press.org/2015/09/03/most-millennials-resist-the-millennial-label/