BELIEVING YOUR CLIENTS: CAN THEY AFFORD IT? THE COMPLEX ISSUE OF “TRUTH” AND “LIES”: WHAT DOES THE LAWYER DO?
There are two sources for this post. The first is a blog by Lucy Reed on Pink Tape “It’s not my job to believe you – here’s why” ; the second is the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018. There are dangers, often unexpressed and unexplored, in a lawyer believing an account without questioning. Indeed it is possible to go further and say that a client who has a lawyer who automatically believes everything they say has a fool for a lawyer.
“Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies.”
A MEASURED ACCOUNT
This is not to say that lawyers should automatically assume that their own clients are not telling the truth. A few years in practice will lead to cases where the improbable and implausible turn out to be, in fact, the truth. The important thing is that, as early as possible in the litigation process (preferably before issue) someone – with sufficient skill and expertise to do so – considers with the client the likely findings of fact that are going to be made by the trial judge. The client’s evidence must be carefully weighed.
RUFFELL -V- LOVATT
The claimant in this case had a host of experts to support her claim for damages. Each accepted, apparently without questioning, the claimant’s evidence that her health had been virtually trouble free prior to being injured in an accident. The judge was critical of one of the medical experts who stated that the claimant had suffered major problems.
“This is because the claimant’s psychological problems are not secondary to CRPS but plainly pre-date the accident and the alleged CRPS by many years. Indeed, it is no exaggeration to say that the claimant has had psychological problems for most of her adult life. Dr Jenner has put the cart before the horse.
107.This error is a consequence of Dr Jenner’s failure properly to read and consider the claimant’s entire medical records before he first reached his Dr Jenner never properly attempted to understand the claimant’s history. Instead, Dr Jenner considered the index accident as year zero for the claimant, treating everything thereafter as flowing from that event. In fact, the index accident was merely a trivial event in a larger, decades-long continuum. This involved the claimant regularly complaining to her doctors of one sort of psychosomatic illness after another, together with a small number of discrete physical ailments involving her left wrist and her breast.”
THE CARE EXPERT
The care expert had a similar problem.
“Miss Atiyah, the claimant’s care expert accepted that it was fundamental to her report that before the index accident, the claimant was independent and not in need of any care… Miss Atiyah did not see the claimant’s medical and DWP records. Those records established, Miss Atiyah agreed, that prior to the index accident the claimant had a requirement for significant daily care needs…
Miss Atiyah was frank in accepting, without qualification, that the picture presented by those contemporaneous records was different from the one she set out in her report…
I find that Miss Atiyah was misled by the claimant and that, as a consequence, her report is founded on a set of facts that never existed.”
BUT “I’M NOT A LIAR”…
This emphasises the need for every litigator to have a working knowledge of the Gestmin criteria. Memory is fluid. People have a tendency to remember what they want to remember. What people want to remember is (unsurprisingly) often in their own best interests.
For instance the judgment of Mark Cawson QC (sitting as a Deputy High Court Judge) in The Connaught Income Fund, Series 1 -v- Hewetts Solicitors  EWHC 2286 (Ch)
6.I heard from three witnesses of fact during the course of the trial, namely Mr Davies and Mr Bedding on behalf of the Fund, and Mr Butcher on behalf of Hewetts. I should say at once that I found all three of these witnesses to be frank and honest witnesses doing their best to assist the Court. Having said that, I did get the impression during parts of the evidence of each of Mr Davies and Mr Butcher that their evidence, and what they had to say in respect of certain matters, was based not on an actual recollection of events but on an ex post facto reconstruction of events in their own minds assisted, with varying degrees of accuracy and reliability, by a reading of the contemporaneous documentation some years after the event.
7. As to Mr Davies, he gave evidence by video link from near his home in Bath in view of the state of his health. Medical evidence confirms that he has been suffering from depression and anxiety, and I gained the clear impression that he has been affected by events surrounding the liquidation of the Fund in 2012, and the subsequent bringing of proceedings against him under the Company Directors’ Disqualification Act 1986. At various stages of his evidence, I gained the impression that he was (subconsciously) reconstructing events in his own mind so as to justify his position in a way that was not always supported by the facts. Further, he did have a tendency to be categorical about events in circumstances when, if probed under cross-examination, it became clear that he was unable to be so categorical.”
AN HONEST WITNESS CAN BE MISTAKEN
That is often overlooked. It was a point made by Sir Mark Hedley in is book “The Modern Judge”.
“... I still start with the assumption that I am being told the truth, in the sense of what the witness is telling me is what he believes to be true”.
“An honest witness may be very convincing but also very mistaken.”
MEMORY IS NOT FIXED
The best summary of the issues is, unsuprisingly, in the Gestmin decision itself.
… 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).
THE CANADIAN VIEW: SINCERELY BELIEVED MEMORIES MORE PROBLEMATIC THAN INTENTIONAL LIES
Everyone involved in litigation should read the judgment of Mr Justice J.W. Quinn in The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii). This includes this passage.
” E-mails, hundreds of them, along with letters and other documents, proved to be the most reliable evidence. Without them, the truth would have been unattainable, leaving me at the mercy of witnesses and desperately self-interested litigants attempting to recall events today that took place in 2006. There are inherent evidentiary problems in asking witnesses to tell of such events. Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies.”
IF WE DON’T BELIEVE THE CLIENT WHO WILL?
I am not advocating a process whereby all evidence is treated with scepticism. I am stating that, if the matter proceeds to trial, the trial judge will – without doubt – apply Gestmin type considerations to the evidence before the court. It is surprising how often “rock solid” evidence on paper disappears rapidly (and all to easily) on the most cursory cross-examination. The litigant could, and should, have avoided the expense involved by someone raising these issues with them prior to trial. I am not here advocating “witness training” in any way, shape or form, but simply testing of the evidence. It is part of the lawyer’s function to assess the quality of the evidence and advise, in clear terms, as to the risks involved in taking that evidence to trial.
Even the most confident litigant (indeed especially a confident litigant) should consider the words of Mr Justice Jay in Serafin v Malkiewicz & Ors  EWHC 2992 (QB)
“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”