RECONSTRUCTION AND RECOLLECTION: HONEST WITNESSES GET THINGS WRONG: WHICH WITNESS WILL BE BELIEVED

July 15, 2015 · by gexall · in Avoiding negligence claims, Civil evidence, Witness statements

The case of Wright -v- Lewis Silkin LLP [2015] EWHC 1897 (QB) has been widely reported. Some report it as a case where a solicitor’s evidence was not believed. This is grossly unfair. This case is another example of the problems caused by a witness relying on memory in litigation. (It may also emphasise the importance of litigators emphasising to their non-contentious colleagues the importance of taking file notes).

KEY POINT

“Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies.”

THE CASE

The claimant brought an action against his former solicitors alleging that they were negligent in failing to insert a jurisdiction clause into his contract with the Indian Premier League. One issue was whether the defendant had discussed the issue of a jurisdiction clause with the claimant.

THE EVIDENCE ON THIS ISSUE

The judge contrasted the evidence of the claimant, who stated that no such evidence had been given with the evidence of the defendant solicitor who stated it had. It is important to note that the case was put on the basis that no-one was telling lies. The strongest it got was that the witnesses were mistaken. The judge found that:-

The matter was of abnormal importance to the claimant at the time. Although his recollection was not accurate on every point of detail it was “virtually inconceivable” that he could have forgotten the suggested detailed discussion on jurisdiction.
There had been a number of accounts by the solicitor. The initial one was that the issue was kept open because it was better to sue in India. This explanation changed. The reason given for the change was going through the file in greater detail. “This suggests a process of reconstruction rather than recollection.”
There were differences between the corrected account, the pleaded account and the solicitor’s evidence. “These inconsistencies are also indicative of reconstruction rather than recollection.”
There were no notes or record of any advice given. If detailed advice was given a record would be expected.

“I also accept that [the solicitor] is a truthful witness and that he genuinely believes that he did go through the pros and cons with Mr Wright at the time. However, I find that this reflects faulty reconstruction rather than accurate reflection.”

ECHOES OF THE HIGHWAYMAN

There are similarities here to the case of Luffeorm Limited -v- Kitsons LLP [2015] EWHC B10(QB) discussed in Highwaymen, evidence and damages. In that case the solicitor stated he “believed” that advice had been given on a restrictive covenant. However that was not pleaded and the defendant elected not to rely on this “belief” even though it was stated in the witness statement.

A CANADIAN VIEW

Similar issues arose in the judgment in The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii). In that very colourful judgment Mr Justice Quinn observed

“Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies.”

THE STARTING POINT MR JUSTICE LEGGATT IN GESTMIN

The starting point in any consideration of witness credibility has to be the judgment of Lord Justice Leggatt in Gestmin -v- Credit Suisse [2013] EWHC 3560 (Comm)

“Evidence based on recollection

An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.