One of our intermediaries Holly talks about how to avoid the ‘do you understand?’ trap.

If I could wave my magical intermediary fidget aid and make one small change to legal proceedings, I would banish the question, “Do you understand?” from existence. Almost impossible to avoid, “Do you understand?” (and its close cousin, “Does that make sense?”) are very widely used in legal proceedings (particularly conferences). Even legal professionals who are notably adept in working with individuals who have communication difficulties frequently fall into the “Do you understand?” trap.

The problem with questions of this nature is two-fold:

1. The service user may just say “yes”. Many of us would struggle to respond “no”, if asked this question by a Crown Court judge during our oral evidence, while feeling flustered and overloaded in front of a full courtroom. This issue can be compounded when a person has a communication difficulty. People with communication difficulties are often skilled at masking their needs. Many will have done so throughout their educations and adult lives. There are many reasons why an individual would erroneously respond “yes”, when asked whether they understand. They may:
   
   • Feel embarrassed about not understanding.
   • Feel overwhelmed and simply want a situation to end.
   • Feel uncomfortable seeking support from unfamiliar professionals.
   • Have an expressive difficulty which makes it challenging to provide a more nuanced response.
     
2. The service user may think they understand. An individual may also state that they understand because they erroneously believe that they do. Misunderstandings frequently arise between individuals who do not have a communication need, resulting in two people having very different understandings of one piece of information. When an individual does have a communication difficulty (for example, difficulty maintaining attention, processing verbal information or understanding figurative language) the opportunities for misunderstanding can increase. A person with a communication difficulty may have entirely misunderstood information or partially misunderstood, yet still respond “yes” when asked whether they understand.

As an intermediary, I have endless examples of situations in which a service user has said they understand but, when their understanding was directly checked, revealed that they had not.

Case study: I assisted a service user with a mild learning disability. They presented with strong expressive communication skills, using a wide range of legal terminology correctly while giving instructions. The barrister mentioned to me that they were surprised the service user had been allocated an intermediary, based on their presentation. The barrister spoke rapidly to his client, using very low frequency vocabulary (eg, “Otiose”). It was necessary for me to check the service user’s understanding while the barrister was not present, then provide simplification. The service user explained to me that they did not feel comfortable speaking to the barrister.   In conference after the hearing, the barrister stated, “Well you understood all that, didn’t you? You know what VIG work is”. The service user nodded. I then checked their understanding by asking a direct comprehension question (“What is VIG work?”). They responded, “I don’t actually know”. I therefore provided a simple explanation of the term, which they were able to recap in their own words when understanding was re-checked.

How to check understanding

Direct, specific comprehension questions are one of the most effective methods of checking understanding and retention of information. For example, after an explanation of a Special Guardianship Order, ask: “What is a Special Guardianship Order?”, rather than, “Do you understand the SGO?”. This ensures the individual expresses exactly what they have understood, so that it can be checked and (where necessary) corrected.

Although this process is simple and often highly effective, in some cases it can be challenging to implement if:

The service user doesn’t engage with comprehension checking

Some individuals may feel patronised or put on the spot by this strategy. In these cases, there are lots of measures that can be implemented to assist, including:

• Explaining the rationale for the strategy (e.g., “It’s really important that your legal team gives you all the information you need. This is to check we have explained everything properly”)
• Adopting a more informal, conversational approach after building rapport (e.g., “What was all that about, then?”)
• Asking their opinion to open up the conversation in order to assess understanding (e.g., “What did you think about X?”)
• Feigning ignorance, to allow the service user to ‘fill in the blanks’ (e.g., “What did the judge say about X again? I missed it”)

The service user has expressive difficulties

If an individual has difficulty putting their understanding into words, it can be challenging to explore their true understanding using comprehension checking questions alone. It may assist to:

• Use more specific prompt questions (e.g., “What did the doctor say about X?”, “What does that mean?”, “Why is that important?”)
• Give multiple options, including a distractor item (e.g., “Does consecutive mean: One after the other, at the same time, or no prison time?”)
• This approach can be visually supported if the service user has a reduced auditory working memory capacity (e.g., using pictorial multiple choice questions)
• Use other visual aids to support their expression (e.g., if discussing court roles, use a plan of a courtroom to allow them to point to different areas and professionals)

Never assume understanding

Intermediaries and legal professionals should never assume “yes” means that an individual with a communication need has understood. There are also other presentations which we should not assume demonstrate understanding. These include:

• Nodding during explanations.
• Making sounds of engagement during explanations, (e.g., “Mhmm”).
• Echoing parts of the explanation (e.g., repeating the final clause, “Yeah, like the social worker said”).

Checking understanding more effectively can be a longer process but helps ensure that individuals with communication needs have the information required to fully understand proceedings. This can help them to make better informed decisions, give clearer instructions and feel more confident engaging with proceedings (among many other advantages).

Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs.