WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)

The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses contradict each other but both are essentially honest.

(NB the judge’s approach to the facts in this case was overturned by the Court of Appeal in Kogan v Martin & Ors [2019] EWCA Civ 1645, there was a subsequent re-trial which is available here)

“Given that their evidence was often entirely contradictory and could not on any view be reconciled, it superficially makes no sense for me to say that both were being honest. But that would be to ignore widely held views of how memory works.”

THE CASE

The first claimant, Mr Martin, wrote the film Florence Foster Jenkins which was premiered in 2016. The defendant, Ms Kogan, claimed she was a co-writer of the film.   During some of the time of writing Mr Martin and Ms Kogan were partners. He is a writer, she a professional opera singer.  The dispute centred on what role Ms Kogan played in the script.

PARTICULARISING MS KOGAN’S CASE

One major difficulty was getting particulars of the precise contribution that Ms Kogan claimed to have made to the screenplay. His Honour Judge Hacon set out shifting nature of her case.

1. At the case management conference the Claimants sought an order for further information regarding the nature of Ms Kogan’s case, with good reason. At the trial I was shown a transcript of the hearing of the CMC. It appears that I not only wished to clarify the identity of the copyright work in issue, I also shared the Claimants’ view that Ms Kogan should state with sufficient precision the nature and extent of the contribution to the Screenplay she was asserting. At the CMC junior counsel for Ms Kogan stated that Ms Kogan’s case was simple: she and Mr Martin had co-written the whole thing. Counsel said that their respective contributions were so interlinked that it would not be possible to spell out who did what. The joint devising of everything would be explained in Ms Kogan’s evidence. Given that this was how Ms Kogan was going to put her case, I did not order the further information sought by the Claimants.

2. When Ms Kogan’s evidence was served it must have been apparent that she had changed her case. She now said that she and Mr Martin had each made separate and distinct contributions of various kinds, the remainder of the Screenplay having been created jointly. Annexed to Ms Kogan’s witness statement was a breakdown of what had happened, running to 42 pages. I did not see it until shortly before the trial when I found it vague and rambling. At the trial Mr Malynicz conceded that it did not explain Ms Kogan’s case on her contribution in the most helpful way.

3. The upshot was that the trial started with no focussed idea of what Ms Kogan’s case was. On the first day she stated in cross-examination that she alone had been responsible for writing significant parts of the Screenplay with the remainder mostly having been written jointly, although some of it written by Mr Martin alone. I asked Mr Malynicz to provide a marked-up copy of the Screenplay showing Mr Kogan’s case as to who had done what. A copy was provided the next day, highlighted in three colours.

4. This was an advance in clarifying Ms Kogan’s case but it did not shine light on her argument regarding non-textual contributions. Mr Malynicz said in his closing submissions that he would put Ms Kogan’s case by reference to her six best contributions, consisting of both textual and non-textual input, which he would explain. He acknowledged that if Ms Kogan did not get home on these, her counterclaim was liable to fail. Mr Malynicz’s selection of the six best contributions was very helpful, bringing some order to the arguments.

THE RELIABILITY OF RECOLLECTION

As is so often the case the outcome rested on which witness was found to have the best recollection. The key point were contemporaneous documents.

The reliability of recollection

1. 1. Unsurprisingly, the bulk of the evidence regarding the key issue of who did what came from Mr Martin and Ms Kogan. Both were cross-examined and each was criticised in closing by opposing counsel. I found Mr Martin’s evidence to be more consistent than that of Ms Kogan, but then his case was straightforward: he did everything of substance without exception. Ms Kogan’s case was more complex and suffered from not having been fully thought through. However, my overall impression was that both were stating their honestly held views.

   2. Given that their evidence was often entirely contradictory and could not on any view be reconciled, it superficially makes no sense for me to say that both were being honest. But that would be to ignore widely held views of how memory works.

   3. The observations of Leggatt J (as he then was) in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) have been referred to subsequently by a number of judges. I set them out here:

“Evidence based on recollection

[15] 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.

[16] 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.

[17] 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).

[18] 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.

[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 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.

[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 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.

[21] 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.

[22] 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.”

1. 1. Leggatt J returned to his judgment in Gestmin recently in Blue v Ashley [2017] EWHC 1928 (Comm):

“[68] A long list of cases was cited by counsel for Mr Blue showing that my observations in the Gestmin case about the unreliability of memory evidence have commended themselves to a number of other judges. In some of these cases they were also supported by the evidence of psychologists or psychiatrists who were expert witnesses: see e.g. AB v Catholic Child Welfare Society [2016] EWHC 3334 (QB), paras 23-24, and related cases. My observations have also been specifically endorsed by two academic psychologists in a published paper: see Howe and Knott, ” The fallibility of memory in judicial processes: Lessons from the past and their modern consequences ” (2015) Memory, 23, 633 at 651-3. In the introduction to that paper the authors also summarised succinctly the scientific reasons why memory does not provide a veridical representation of events as experienced. They explained:

“… what gets encoded into memory is determined by what a person attends to, what they already have stored in memory, their expectations, needs and emotional state. This information is subsequently integrated (consolidated) with other information that has already been stored in a person’s long-term, autobiographical memory. What gets retrieved later from that memory is determined by that same multitude of factors that contributed to encoding as well as what drives the recollection of the event. Specifically, what gets retold about an experience depends on whom one is talking to and what the purpose is of remembering that particular event (e.g., telling a friend, relaying an experience to a therapist, telling the police about an event). Moreover, what gets remembered is reconstructed from the remnants of what was originally stored; that is, what we remember is constructed from whatever remains in memory following any forgetting or interference from new experiences that may have occurred across the interval between storing and retrieving a particular experience. Because the contents of our memories for experiences involve the active manipulation (during encoding), integration with pre-existing information (during consolidation), and reconstruction (during retrieval) of that information, memory is, by definition, fallible at best and unreliable at worst.”

[69] In addition to the points that I noted in the Gestmin case, two other findings of psychological research seem to me of assistance in the present case. First, numerous experiments have shown that, when new information is encoded which is related to the self, subsequent memory for that information is improved compared with the encoding of other information. Second, there is a powerful tendency for people to remember past events concerning themselves in a self-enhancing light.”

1. Leggatt J’s admonition that the best approach for a judge is to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations and instead to base factual findings on inferences drawn from the documentary evidence and known or probable facts seems to me appropriate to the present case.

THE JUDGE’S FINDINGS ON THE FACTS

The facts

Ms Kogan’s contributions to the text

1. 1. I consider first whether Ms Kogan by herself wrote any part of the text of the first three drafts of the screenplay, text which survived to become part of the final Screenplay. I have mentioned the marked-up copy of the Screenplay provided by Mr Malynicz on the second day of the trial. I asked for it because I needed to know what Ms Kogan’s case on textual contribution was and at that stage I had not had the benefit of Mr Malynicz’s six best points. But for reasons discussed above I have largely disregarded it in my assessment of their respective roles in writing the Screenplay along with the rest of her and Mr Martin’s evidence insofar as they consisted of unsupported assertions as to what either of them had done. I have instead relied on documentary evidence and agreed facts.

   2. Ms Kogan’s view of her case has evolved over time. She first asked for part of Mr Martin’s income from the Screenplay in April 2014. In April 2015 she claimed that she had contributed to the Screenplay. At the CMC in December 2016 she said that the entire Screenplay had been jointly written by her and Mr Martin. In May 2017 Ms Kogan’s witness statement was served with the 42-page annex in which she said that her contributions had included text written only by her. In the annex Ms Kogan summarised her sole input in this way:

“2.2 Dialogue which was written solely by me. Some of the dialogue was written solely by me. This is mainly musical jargon or mumbo-jumbo which I had heard during my career in music. As I explained in my witness statement, Nick had no musical training [and] did not have any idea of the expressions that singers would use. I was able to bring this to the collaboration.”

1. 1. In her cross-examination at trial Ms Kogan claimed that her textual input as sole writer went significantly further than musical jargon and mumbo-jumbo. This claim was followed and confirmed the next day by providing the tri-coloured copy of the Screenplay. Yet aside from Ms Kogan’s own assertions there was no support for her claim to the input which she identified as hers alone.

   2. I find that Ms Kogan’s contributions as sole writer of the text of the Screenplay were limited to suggestions of technical musical language, with which she was undoubtedly more familiar than was Mr Martin. These were incorporated into drafts one to three and some of them found their way into the final Screenplay.

   3. A major part of Ms Kogan’s case was that most of the remainder of the text of the Screenplay was written jointly with Mr Martin. There was some limited evidence in support of this:

(1) After Mr Martin had prepared his first thoughts on the Florence project in March 2012, he sent a ‘story outline’ to Ms Kogan, who was then in the United States. He asked for Ms Kogan’s input in an email dated 28 March 2012 and referred to her as his ‘special collaborator’.

(2) On 2 April 2012 Ms Kogan sent Mr Martin an email saying “It is such fun for me to work on these things with you. I hope we’ll get to do much more…”

1. 1. But these were very early days and the affectionate language of the emails gives little idea of how Mr Martin and Ms Kogan planned to work together on the subsequent writing of the draft screenplays for the Florence project.

   2. By contrast there was more telling agreed and documentary evidence which suggested that the first three drafts of the screenplay were written by Mr Martin alone, with only very limited help from Ms Kogan:

(1) By the time of the Florence project Mr Martin was a screenwriter of some standing, having written several screenplays for TV drama shows. Ms Kogan was an operatic singer by training and profession. She had written magazine articles and children’s books, but claimed no experience of screenwriting before she met Mr Martin.

(2) In July 2012 Ms Kogan had suggested that she and Mr Martin should jointly write a script for a different project. Mr Martin reacted badly to the suggestion and told Ms Kogan that he always worked alone. Despite his being in a romantic relationship with Ms Kogan, there was no evidence that he changed his mind about this, aside from Ms Kogan’s assertions that he had.

(3) Mr Martin was the ultimate arbiter of what went into the screenplay drafts.

(4) Emails at the time the story outlines were being written (i.e. before the first draft of the screenplay) indicate that Ms Kogan was making typographical corrections and other comments of a proof-reading kind, but nothing more substantial. An email dated 31 March 2012 from Ms Kogan is typical in this regard. It also includes this:

“Of course, please ignore whatever you please of what I say, this is totally your baby.”

(5) Mr Martin started work on the first draft of the screenplay in February 2013 while Ms Kogan was in France. It was completed in early April. Ms Kogan wrote an entry in her diary on 3 April 2013:

“N finishes Flo.“

(6) The second draft was completed on 19 June 2013. Mr Martin emailed a copy to Ms Kogan on 21 June 2013. Ms Kogan replied on 23 June 2013:

“…you have done it – you have accomplished the great task of creating something truly important. … All the more so because you have written Florence under so much pressure, in such difficult circumstances. … Making something from nothing but your own talent is a value in itself. To create in a near vacuum is the real thing.”

(7) Mr Martin went to Los Angeles in July 2013 where he met people in the Hollywood film industry with whom he reviewed the Florence project, in particular Ben Lewin, a director, producer and writer of screenplays and Mr Lewin’s wife, Judi Levine. Their son carried out some research for the project. In an exchange of texts on 27 July 2013 Ms Kogan advised:

“You must protect your position as the writer.”

(8) After Mr Martin had returned to London, work was done on the third draft. Mr Martin was concerned that Mr Lewin and Ms Levine would claim a share of the authorship, making it difficult for him to claim sole authorship when selling the project to finance companies. To neutralise the difficulty, he decided to offer them part of his writing income. 15% was later agreed. In an email to Ms Kogan dated 23 January 2014 Mr Martin discussed this – he called it “the Ben and Judi problem” – and asked her what she thought about offering part of his income. On the same day Ms Kogan replied “It makes sense…”. On 5 March 2014 Mr Martin’s company, the Second Claimant, signed an agreement with Qwerty, the third Part 20 Defendant, for the financing of the Film. It included a warranty that Mr Martin was sole writer of the script. Throughout this Ms Kogan did not suggest that she should be given a share of the income. It was not raised until 8 April 2014, following a therapy session attended by Ms Kogan and Mr Martin in an attempt to save what had by then become a difficult relationship.

(9) Ms Kogan knew that Mr Martin had registered the first three drafts of the screenplay with the Writers’ Guild of America with Mr Martin listed as sole author. She raised no objection.

1. 1. In my view, the documentary and undisputed evidence supports Mr Martin’s claim to have been the sole writer of the text of drafts one to three of the screenplay with only limited input from Ms Kogan. This consisted of musical expressions of a technical nature, already mentioned, together with some minor editing changes.

Non-textual contributions

1. 1. I think it is likely that Ms Kogan was also responsible for non-textual contributions to the first three drafts, made in the course of her discussions with Mr Martin. Looking at the six best examples advanced on her behalf, the non-textual input probably consisted of the following ideas:

(1) using Lilly Pons as a character in the Film and using the Bell Song;

(2) using The Swan in McMoon’s audition scene;

(3) having Florence visit Melotone Records.

1. 1. As with the textual input, it was Mr Martin who decided which of Ms Kogan’s ideas were to be used in the Screenplay and which not.

Whether Ms Kogan’s contributions were sufficient

1. In my judgment the textual and non-textual contributions made by Ms Kogan never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions. Taken together they were not sufficient to qualify Ms Kogan as a joint author of the Screenplay, even had those contributions all been made in the course of a collaboration to create the Screenplay. Mr Martin was the sole author.