LAWYERS, LITIGATION & MEMORY: THE MEMORY ILLUSION
A single moment of logical thought will lead to the conclusion that it is strange that lawyers don’t learn about memory. Much (indeed most) litigation relies on the memory of the parties. Judges are, more often than not, called upon to decide whose memory of events is the most accurate. The judge cannot shy away from that task. Most cases are decided on the basis of accuracy of recollection rather than points of law. For that reason it is worth reading The Memory Illusion by Dr Julia Shaw: “Remembering, Forgetting and Science of False Memory”. This book raises issues of direct relevance to the working litigator.
MEMORY IS MALLEABLE
Identity and memory, Dr Shaw shows, are inherently linked. Yet memory is like clay, and memory is malleable:
“Over the course of just a few friendly interviews… I have convinced people they have committed crimes that never occurred, suffered from a physical injury they never had, or were attacked by a dog when no such attack ever took place.”
The book explains memory, how it works but, more important, why it is unreliable and how it can be (often unwittingly) manipulated. It shows how memory is affected by social media and numerous external factors.
MEMORY IS DANGEROUS
The most challenging chapter is the chapter on memory and sexual abuse.
“… suggestive and leading interview techniques can lead to the false recall of terrible things.”
THE DANGEROUS PROFESSIONALS
In relation to criminal cases Dr Shaw identifies a danger of professional ignorance.
“The final factor which can cause problems in criminal cases is scientific ignorance. Many of the professionals involved in such cases are not aware of (or trained in) what the latest research says about memory.”
She argues against the use of the word “false memory syndrome”. “False memories are just memory illusions due to normal kinds of memory processes.”
KNOW THAT MEMORY IS INACCURATE (AND EMBRACE IT)
“We know that we can get memories fundamentally wrong, believing things that never actually happened. And precisely when versions of memories fit well with who we think we are, or who we want to be, these memories may be extra likely to become part of our perceived personal past.”
AND WHAT DOES THIS HAVE TO DO WITH CIVIL LITIGATION?
The basic answer is – everything. Whilst the criminal, and family, courts have paid some regard to the fallibility of memory it plays virtually no part in the training or day to day practice of the civil lawyer. Until that is, a witness is cross-examined about a witness statement that “their lawyer has drafted” – and (oftentimes) blames the lawyer for any inaccuracies.
A UNIVERSAL ISSUE IN EVERY TYPE OF CIVIL COURT
The major mistake would be to think that this only applies to matters such as allegations of sexual abuse. The issues here are universal.
In a judgment given last month in the Companies Court Mr Registrar Briggs( in Cusack -v- Holdsworth  EWHC 3084 (Ch).) said:
“… the fallibility of the memory has to be taken into account when determining issues of fact. Memory is an active process, subject to individual interpretation or construction. Each witness will have produced their witness statements many months ago, will have been asked to read or re-read their statement and review documents before giving evidence in court. There is high level commentary that reveals that this process reinforces a memory, even if the memory was false to begin with, and may cause a witness’s memory to be based not on the original experience of events but on the material which has been read and re-read.”
AND YOU, THE LITIGATOR, HAVE A DIRECT IMPACT UPON THE LITIGANT’S MEMORIES
The reason that litigators have to be fully, and absolutely, aware of the principles and fallibility of memory is that the litigation process has a direct impact upon memory. One passage, of one case, that every litigator should have pinned on their walls is the judgment in Gestmin SGPS -v- Credit Suisse (UK) Ltd  EWHC 3560
“16…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.”
He later went on:
“19. 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 to one side of the dispute. A desire to assist, or at least not prejudice, the party who 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.
20. 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 or 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 10 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 record. 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.”
SO WHEN YOU TAKE A WITNESS STATEMENT YOU ARE HAVING AN IMPACT UPON “MEMORY”
This is inevitable. However a failure to appreciate that and, the (hopefully usually unwitting) bias that results is a factor that has to be taken into account in assessing your own (and your opponent’s) witness evidence. See the recent judgment of Mr Justice Collins in Smith -v- Bar Standards Board  EWHC 3015 (Admin). That it comes as a result of very basic failings by the Bar Standards Board is extraordinary.
“It is worth noting that in the present approach to litigation involving the drafting and redrafting of statements of witnesses, the latest of which is submitted as his or her evidence, it is often shown in cross-examination that the witness statement does not in truth fully or properly reflect his true evidence. This does not mean that there has been deliberate invention but it is all too easy to persuade a witness that he should put his evidence in a particular way which may turn out not to be entirely accurate.”
MORE CASES DEPEND ON MEMORY THAN POINTS OF LAW
Memory and witness credibility are often the key points in civil trials. Yet these issues are unexplored by the profession. Training is not given in relation to the collection of evidence. Lawyers gamble with their client’s (and often their own) money and then complain when a witness “does not come up to proof”. The fault, it is said, lies with the witness and “witness training” is necessary. The answer, however, is that it is those taking the statements, not the witnesses, that need the training. Reading this book would be a good start.
- In-House course on witness statements and civil procedure.
- Witness statements: When things go wrong – blame the solicitor.
- Witness statements: alteration and the fallible memory: a scientific study.
- Witness statements and Hillsborough: confirmation bias at its worst.
- Why lawyers have to know about the fallibility of memory (even company lawyers)
THE GESTMIN TEST
- Witness evidence, reliability & credibility: Why everyone should read Gestmin
OTHER POSTS ON WITNESS CREDIBILITY
This issue is also discussed in a number of other posts.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability
CASES WHERE THE GESTMIN APPROACH HAS BEEN CONSIDERED (AND APPLIED)
- R (British American Tobacco) -v- Secretary of State for Health  EWHC 1169 (Admin)
- Barker -v- Baxendale Walker Solicitors  EWHC 664 (Ch)
- Sloper -v- Lloyds Bank PLC  EWHC 483 (QB)
- Dunhill -v- W Brook & Co  EWHC 165 (QB)
- Royal National Institute for Deaf People -v- Turner  EWHC 3301 (Ch)
- Mainland Digital Communications Ltd -v- Chaddah  EWHC 1580 (QB)
- Foulser -v- The Commissioners for Her Majesty’s Revenue & Customs  UKFTT 220 (TC)
- Lavis -v- Nursing & Midwifery Council  EWHC 4083 (Admin)
- Le Puy Limited -v- Potter  EWHC 193 (QB).
- Prescott -v- The University of St Andrews  CSOH 3
- UBS -v- Kommunale Wasserwerke  EWHC 3615.
- Hirtenstein -v- Hill Dickinson LLP  EWHC 2711
- Virulite LLC -v- Virulite Distribution Ltd  EWHC 366 (QB)
- Watson Farley & Williams -v- Itzhak Ostrovizky  EWHC 160 QB
- East England Schools CIC -v- Luci Palmer  EWHC 4138 (QB)