LITIGATORS AND THE ART OF PERSUASION: USEFUL GUIDES (1): MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is, involved in the art of persuasion. Litigation is fundamentally about the art of persuasion. Persuasion is a litigator’s daily task: in correspondence, on the phone, with opponents. It is wrong to confine the consideration of this essential skill to the courtroom. Several years ago I wrote what was supposed to be the first in a series looking at guides on advocacy and persuasion. That “series” got overtaken, primarily by the posts on guidance from judges. It seems wise to start again. There are many books on advocacy and it is worthwhile having a look at some of them from the point of view of usefulness to the civil litigator. I am starting with a gem, as much a work of literature as it is a book on advocacy.
Twenty years after John Munkman’s death I find myself writing a further edition of his seminal work on damages for personal injury and death, I am also contributing chapters to Munkman on Employer’s Liability. John was a colleague in chambers for eight years. When John Behrens retired as a Chancery Judge, John Munkman was one of the people he paid tribute to in his farewell speech in court. John Munkman was a unique personality. He wrote all his books alone, unaided and using a typewriter rather than computers.
MUNKMAN ON THE TECHNIQUE OF ADVOCACY
John Munkman is best known for his books on Employers Liability and Damages for Personal Injury. He first published The Technique of Advocacy in 1951. My copy is a an update he wrote in 2001. It is typical of John’s work: short concise and not a word wasted.
THE FOREWORD: “ADVOCACY IS THE ART OF PERSUASION: IT IS ALSO A CRAFT”
The Preface also reminds us the late Gilbert Gray QC’s command of the English language. There were few better. John Munkman and Gilbert Gray QC were very different characters however they held a mutual esteem that is clear in the Foreword and Preface. John wrote of Gilbert Gray
“He is one of the most colourful advocates of the current day, with a jovial, friendly presence which lights up dull moments and disarms opposition, but hides a quick turn of thought and an equally quick turn of phrase, effective in both argument and cross-examination”.
In 175 (small) pages John considers the entire scope of advocacy from its meaning and foundation, its limits, dealing with witnesses, closing speeches and general strategy and tactics.
This blog has looked, many times, at the modern approach to issues relating to memory and the accuracy of witness recollection. John had a clear grasp of these issues in 1951. He cites psychological research of the time:
“The most honest witnesses frequently give evidence which is unsound, though they are quite sure that it is true.
Indeed it has been estimated by psychologists and by experienced judges that something like one-fourth of the evidence given by truthful witnesses is unreliable.”
ASPECTS OF MOST USE TO CIVIL PRACTITIONERS
I have already written a specific post on John’s section on interviewing witnesses. This book was written long before witness statements were exchanged. An advocate would be faced with a “proof of evidence” (often unsigned).
The advocate had to use the proof as the means of asking salient (non-leading) questions to adduce the witness’s evidence.
“If ordinarily speaking, the case centres on the evidence – in –chief, this in turn is founded on the statements of witnesses, or proofs. … Statements ought to be taken from the witnesses at the earliest opportunity. The details fade with the lapse of time, and the evidence becomes modified under the influence of imagination. The taking of proofs is often delayed in a civil action because it is thought there will be settlement. This is a serious error. Apart from the blurring of memory, there is always the possibility that the witnesses will be interviewed by the other side, and the further risk that, by reason of insufficient knowledge, the claim may be based on mistaken grounds…..
In taking a proof, it is best in the first place to ask the witness to tell his story, just noting the salient facts and dates. When the outline is clear, the statement should be taken down in chronological order, amplifying the details at the same time: doubtful points should be tested at once by a few searching questions.
The ideal proof contains all the facts in the right order. It also contains complete details, some of which counsel may not wish to bring out, but they should be there so that he can use his discretion. The ideal proof contains, besides, explanations in simple language of anything which might be obscure to the average man, such as the lay-out of a street or a house, or the working of a machine, or technical terns used in particular trades. Such explanations ought not to be left to the end, as footnotes so to speak, but ought to be introduced side by side with the part of the evidence which they are intended to clarify. Each stage in the evidence should be rounded off and completed before going on to the next.”
THE MUNKMAN CHECKLIST
I am not wholly certain that John would have approved of a checklist arising out his work (indeed I strongly suspect he would not). However it is important that I highlight the major issues he has dealt with in those three short passages.
(1) Take witness statements early. Do not assume a case will settle.
(2) Memories lapse with time.
(3) Be aware of the possibility that there is no property in a witness. The other side could interview a witness.
(4) Allow the witness to tell their story first, taking notes.
(5) When the outline is clear take the statement in chronological order.
(6) Amplify details when necessary.
(7) Test doubtful points by searching questions.
(8) Have “all the right facts in the right order”.
(9) Have explanation of any technical material as part of the text to clarify, not as a footnote.
(10) Each state of the evidence should be rounded off and completed before going on to the next.
ADDITIONAL STEPS FOR WITNESS STATEMENTS
The one addition that could be made to a witness statement is that the use of sub-headings is often of great emphasis.
Finally John’s section on “taking statements”. He states it is similar to taking evidence in chief.
“In particular questions should be short and simple; long complex witnesses confuse the witness. It is also better not to “lead” the witness when he first tells his story. Most people are “suggestible” and tend to give the answer which they think is wanted.”
SO BUY THE BOOK
I am not sure it is still in print. If it is not it should be.