HOW MANY LITIGANTS HAVE REGRETTED STARTING THE CASE? POISE AND POLISH IS NEVER ENOUGH IN A COURT ROOM
This one paragraph from a judgement yesterday gives pause for thought.
“The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place. Without prejudice to the terms of any order for costs that I will make after receiving written submissions, this litigation has proved to be enormously costly for him as well as for the Defendants. It is, in a different way perhaps from the article itself, a modern morality tale: a cautionary warning that litigation of this sort, having regard to the nature of the issues at stake, should not be initiated out of almost unbounded self-confidence and lack of judgment, coupled with a misplaced belief that the court will surely succumb to the same charm and eloquence that has worked so effectively in the world outside.”
Mr Justice Jay in Serafin v Malkiewicz & Ors  EWHC 2992 (QB)
This was in the context of a failed action for libel and misuse of private information. However it could be true of many of the cases considered on this blog. A trial judge, considering the credibility of witnesses, is unlikely to be persuaded by charm. Further “unbounded self-confidence” and “lack of judgment” could well be synonyms. The claimant in that case was representing himself. One task (and essential role) of the lawyer is to assess the overall credibility of their client’s own evidence. This is never a popular task with a “confident” client, however it is the one task that could save them thousands (sometimes millions) of pounds.
POISE AND POLISH IS NOT ENOUGH
See for instance his Honour Judge Keyser QC in Mudroglu -v- Reddish LLP  EWHC 1044 (Ch)
Mr Lucie-Smith gave evidence with greater poise and polish; this is perhaps to be expected of someone who, as Mr Aldridge reminded me, is an experienced professional with some standing in the financial world. Mr Aldridge submitted that he was “manifestly honest” and that, subject only to the possible question of the stock transfer forms, his evidence was “consistent with everything he [had] said and done previously”. That submission is plausible only if one ignores the documents (and many of them were indeed ignored at trial, for differing reasons); these leave no doubt but that Mr Lucie-Smith is seriously dishonest. I do not feel able to accept any of his evidence unless compelled to do so by inherent probabilities or by other evidence. The most striking problems with his credibility have already emerged in the narrative and will be mentioned further below, but some of the less central matters may conveniently be touched on here.”
- Judicial assessment of witness credibility: “The most difficult and opinionated witness I have ever had the misfortune to encounter”.
- Witness evidence, reliability and credibility: Why everyone should read Gestmin (or failing that my summary).
- The Arroyo Judgment 3: witnesses and credibility
- Witness evidence, reliability and credibility: why everyone should read Gestmin
- Litigators must know about credibility.Witness Statements and Witness Evidence: More about Credibility.
- Which Witness will be believed?Is it all a lottery?
- The witnesses say the other side is lying: What does the judge do?
- Assessing the reliability of witnesses: How does the judge decide?
- Which witness is going to be believed? A High Court case.
- The Mitchell case and witness evidence: credibility, strong views and reliability.
- 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