LAWYERS, LITIGATION & MEMORY II: HOW YOU ARE AFFECTING THE MEMORY OF WITNESSES (AND POSSIBLY SOWING THE SEEDS FOR DEFEAT)
The post on “Lawyers, litigation and memory“clearly struck a chord. It had many hundreds of readers (on a Sunday too). It highlights the fact that a failure to be trained in, and consider, issues relating to memory, causes litigators numerous problems. These problems only become apparent once a witness is cross-examined. Here we look at how the basic way in which questions are asked can affect memory and then go on to have a major (often detrimental) impact upon the litigation itself.
HOW LAWYERS AFFECT MEMORY
We have looked many times at the issue of how the litigation process affects memory. This starts when a witness statement is taken. No training is given to lawyers on this issue, and therefore no thought, is given to the impact this has upon memory.
GUIDANCE FROM THE EAST
I have recommended before the article by Ula Cartwright-Finch and Alex Waksman of Herbert Smith Freehills on the accuracy of witness statements and the psychology of investigations.
THE FRAGILITY OF MEMORY AND THE USE OF LEADING QUESTIONS
The article examines the fragility of memory and highlights the dangers of asking leading and misleading questions. The best example of the use of leading questions is asking a group of people who had seen a video of a road crash. The use of a particular verb in asking the question had a direct impact on the responses when witnesses were asked to state the speed of the car:
- Smash – 40.5 mph
- Collide – 39.3 mph.
- Bump – 38.1 mph
- Hit – 34 mph
- Contact 31.8 mph
Similarly questions such as “did you see “the” broken headlight “as opposed to “did you see “a”broken headlight” had a major impact on the number of people who reported seeing a broken headlight.
The articles also examines the dangers of implanted memories. Look at the way so many people remember seeing Bugs Bunny at Disneyland after being shown (false) adverts of his presence there. Bugs Bunny is not a Disney Character, yet people – duly prompted – have clear memories of his presence.
The actual process of investigation can prejudice the witness results. This can happen on the part of the person taking the statement and not just the witness. There is a tendency to seek out evidence that supports a view and overlook or ignore the evidence that contradicts it.
PRACTICAL INTERVIEWING TECHNIQUES
Finally the article looks at practical ways to minimise the problems of bias. For instance:-
- Ask open questions.
- Use alternative techniques if the interviewee’s memory is particularly weak or vague.
- Have a thorough documentation retention process inplace.
- A person making an investigation should take measures to insulate themselves from confirmation bias.
THE QUESTIONS YOU ASK DETERMINE THE ANSWERS YOU GET
There are a declining number of civil practitioners who will have seen examination in chief in a civil case, let alone carried out this task. Witness statements now stand as the evidence in chief. It used to be a hard task. “Proofs of evidence” could be fairly perfunctory (if they existed at all). However the most difficult problem was the fact that you could not ask “leading questions”. This could lead to interesting results. A central fact that a party had told you about clearly in conference 10 minutes earlier could, sometimes, not be teased out of them at all.
However the rule against asking leading questions was important. It meant that the judge was hearing the witnesses’ evidence rather than a response to a number of loaded questions coming from the advocate.
This practice, of not asking leading questions, is an essential tool in a litigator’s armoury. It means that the evidence is far less likely to be “corrupted”. Here I don’t mean deliberately corrupted but that a witness, who is anxious to help, could inadvertently agree with matters which, on closer examination, are not correct.
A GRAPHIC EXAMPLE
There is much controversy about the statements that were taken after the Hillsborough disaster. That controversy is on-going. However one significant matter is the way that the police actually asked questions. The best example of this I have seen is Brian Reade, writing in the Mirror, on his experience of having his statement taken by the police after the disaster:
“Virtually all the questions were slanted towards finding out how culpable the fans were: “What time did you arrive at the ground? Did you witness any disorder? Did you witness any consumption of alcohol in the streets? Did you witness alcohol being brought into the ground or consumed inside the ground? Did you witness any act by supporters which obstructed police, stewards or medical persons? Were you subjected to any threats or violence? Did you witness anything you consider to be a criminal act by any person?”
Not a single question about how many police were outside the ground, the state of the stadium, whether any stewards filtered people away from the central Leppings Lane death pens, whether police officers responded to dying fans screaming to be let out of the cages , or if I saw any medics helping casualties.
Just a set of questions geared entirely towards the behaviour of people, like myself, whose only fault was that we saw fellow fans die.”
See the whole article at http://www.mirror.co.uk/news/uk-news/brian-reade-hillsborough-witness-statement-2301438
TAKING STATEMENTS WITH AN “AGENDA”
It can be seen that there was clearly an agenda when those statements were being taken. The questions were loaded, not open ended, they were working towards a pre-existing view of what happened.
In a similar manner the dangers of having a set “checklist” of questions is clearly seen in the judgment in the contempt of court case of Motor Insurers Bureau –v- Shikhell  EWHC 527 (QB).
THE FACTS IN SHIKHELL
A contempt of court action was being brought against Mr Shikhell for false statements he made in a personal injury action. He had given evidence that he could not play football and was severely disabled. In fact he played regularly, had played every match for his team that season and had been “man of the match” several times. The proceedings were also brought against his father and two “character witnesses”, a neighbour and a team mate.
THE WAY THE STATEMENT WAS TAKEN
The neighbour who gave evidence had made a statement that Mr Shikhell was “unhappy because he could not play football as he did before.” There was considerable debate about what this meant – that he was playing to lower standard – or could not play at all?
The judge considered the way that the statement was taken
“I am also mindful of the evidence I have heard from [a trainee solicitor] She was a trainee solicitor in her first seat, a matter of weeks into that seat, when she was asked by her principal to proof Mrs Glancy and Simon Fennell. She took their statements over the telephone and she was provided with a list of questions, drafted by a more senior fee earner, to use when discussing the case with Mrs Glancy and Simon Fennell. Interestingly the drafting of perhaps the most crucial question is ambiguous: “Did they play football with James? If so, has he expressed sadness at not being able to play to the same level and ability as before the accident?” [22/942]. The question is ambiguous in that it might suggest that James Shikell was in fact playing football, albeit not at the same level and ability as before the accident, or it might suggest that he is not playing at all. A straightforward question asking the witness to confirm whether or not, to his or her knowledge, James Shikell was playing football might have averted the problems which subsequently arose. A witness who claimed to have the requisite knowledge should then have been asked the basis for that knowledge. I make no criticism at all of [the trainee] who was undoubtedly doing her best and following the list of questions provided to her. However, she was plainly very inexperienced. The drafting of the statement is extremely poor in that it fails to tie matters to particular dates and contains significant amounts of opinion evidence which is inadmissible for a witness of fact. It is undoubtedly the case that the drafting of the Witness Statement reflects the questions asked in that list.”
I HAD A LITTLE LIST (AND THAT’S WHERE THINGS STARTED TO GO WRONG)
It can be seen that:
- The actual taking of the statement was delegated to the most inexperienced level.
- The person taking the statement was provided with a list of questions.
- Those questions were, on some occasions, leading questions.
- Many of those questions were about matters of opinion.
The key question, which led to Mrs Glancy spending five days in the High Court, was “ … has he expressed sadness at not being able to play to the same level and ability as before the accident.”
This led to her statement reading “James … is sad that he is unable to play football as he used to…”. This was one of the passages which formed a count on the contempt of court charges.
THE DANGERS OF LEADING QUESTIONS
This highlights the dangers of leading questions. The judge found that “It is undoubtedly the case that the drafting of the Witness Statement reflects the questions asked in that list”.
WHAT HAPPENED TO THE WITNESSES?
Mr Shikhell and his father were imprisoned for 12 months. Mrs Glancy was acquitted (but had to pay a part of her own costs). One witness, the judge found was totally honest. That witness was found to have given honest evidence to the solicitors, but this did not find its way into the witness statement (paragraph 149 of the judgment which is available on Lawtel). As a result the statement he signed (but did not read thoroughly) gave a misleading impression. Although he was totally honest he was found in contempt of court (and fined £750.00)
“That insofar as the court finds that a Respondent verified a document by statement of truth without having read the same, that Respondent is in contempt of court. By his own evidence in the witness box [the witness] admitted he did not read the statement thoroughly before signing it, adding he possibly skim read it. He told me he did not realise the importance of the document or the significance it could have. Nor did he ask anyone. He said that he now reads all documents very carefully. No doubt these proceedings have been a salutary lesson to him.”
(This is not in the report, however I represented the witness that was acquitted and was I present in court at the sentencing hearing).
THE PRACTICAL EFFECT OF THIS: THERE ARE DANGER IN FAILING TO RECOGNISE THE RISKS OF (ACCIDENTALLY) TAKING “PARTISAN” STATEMENTS
The task for anyone collecting evidence is two-fold: (1) to gather evidence in support of the client;s case; (2) to enable the client to properly appraise the strength (and weaknesses) of the case in order that decisions can be made as to settlement or whether to proceed to trial.
Relatively few cases go to trial and litigators may feel it appropriate to gather evidence in a “partisan” way. However if the evidence is not collected fully and properly this can lead to real shocks at trial. It is worthwhile, indeed essential, that a client has a full and honest picture of the risks they are running in litigating. Gathering one-sided evidence (albeit inadvertently) could nasty surprises at trial.
This is one reason many litigants fail at trial. Not because they are deliberately dishonest (although that does happen) but because they have come to believe what they say is true. It can be the process of investigation and questioning that leads to this belief.