WHY CAN’T YOU ASK LEADING QUESTIONS IN COURT (AND WHY SHOULDN’T YOU DO IT WHEN PREPARING A WITNESS STATEMENT)
A search term that led to this blog today was “why can’t the case presenter or representative can ask his witness leading questions during evidence-in – chief?” Examination in chief is rare in civil cases. The dangers of asking leading questions, however, remain real and profound. Cases have been lost, and millions of pound spent in costs, on the basis of witness evidence that is fundamentally flawed.
The report of the Witness Evidence Working Group concluded that “… the proper and sensible scope of evidence-in-chief is no longer the stock-in-trade knowledge of those responsible for proofing witnesses and helping them draw up their statements” which, if you think about it, is actually quite a frightening conclusion. These seems an apt time to look at those cases, and pieces of research, that highlight the dangers of asking leading questions in the preparation of witness evidence.
YOUR EVIDENCE GOES UP IN SMOKE: THE SONAE CASE
Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd  EWCA 2264 (QB). One post took part of that judgment and rehearsed a basic point about the need to take care when asking questions of your own witnesses when preparing statements. Among other things this case emphasised the dangers of leading questions when interviewing witnesses. There are dangers in leading questions. The consequent evidence can be misleading and, ultimately, harmful to the party calling that witness.
SOME KEY QUOTES FROM THE SONAE JUDGMENT
“recall bias is always an issue in scientific research based on retrospective evidence, and this phenomenon is hugely magnified when one brings into the equation the obvious corollaries of the medico-legal component. Human beings are naturally susceptible and suggestible, particularly if they are made to believe that they form part of a coherent group with shared experiences, and if they risk none of their own resources in bringing a claim.”
“The standard-form questionnaires asked a series of leading questions. Many of the questionnaires examined in the context of the Test Claimants were shown to be inaccurate and exaggerated, calling into question the objectivity and integrity of the whole process. Nor does the whole set up of pop-up shops and cold-calling of potential Claimants inspire any degree of confidence.”
“Misleading information of this sort had the obvious tendency to encourage the bringing of claims, on the basis that the Defendant was a soft target and this was easy money. That this information was understood in exactly this way is revealed by the terms of the Facebook posts referred to at paragraphs 9, 10 and 12 of Ms Wilson’s witness statement, as well as by the evidence in Leon Swift’s case. I strongly deprecate this sort of practice. Not merely does it sail close to the wind in terms of its professional propriety, it is severely counter-productive as and when the case comes to trial.”
THE QUESTIONS YOU ASK WILL DETERMINE THE ANSWERS YOU GET
I am here repeating points to some extent points made in an earlier post Drafting witness statements: the questions you ask will determine the answers you get. That post looked at the dangers of asking leading or “slanted” questions of witnesses to lead them to the answers the interviewer wanted.
Since then we have also looked at the decision in Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd  EWHC 2866(TCC). The defendant was applying for indemnity costs after the claimants’ action failed. One of the grounds the defendant put forward was that a witness statement was misleading.
“The second matter relied on by the defendant is the claimants’ use of a witness statement from Mr Thomas, the planning officer, that was calculated to give a misleading impression of the evidence he was likely to give. Mr Thomas’s witness statement was served under cover of a letter dated 16 November 2012. Almost immediately, the defendant’s solicitor responded, suggesting that the statement did not give a full and accurate account of Mr Thomas’s evidence and asking whether the claimants’ solicitors were satisfied that it “fully and accurately record[ed] all of his relevant evidence”. The claimants’ solicitors replied that the statement addressed the facts alleged in the defence and was not selective simply because, in doing so, it undermined those alleged facts. In the event, the defendant’s solicitors proved correct. Mr Thomas’s oral evidence was largely consistent with the factual case of the defendant and tended to support the defendant’s case on planning merits, while tending to undermine both the reliance placed on the witness statement by Mr Bate in forming his expert evidence and the claimants’ case on causation [judgment, paras 67, 92 and 95]. The inescapable inference (said Mr Lixenberg) was that the claimants either deliberately put forward a selective version of the evidence that Mr Thomas would give or failed adequately to explore the true nature of his evidence despite being asked to do so. Either way, the reliance placed on Mr Thomas’s evidence was unreasonable in a high degree.”
The judge rejected the submission that the statement had been taken in a deliberately misleading way. However the failure to take a statement had a highly significant effect on the litigation.
“As for the use of Mr Thomas’s witness statement, this may be seen as unfortunate but not, I think, as improper or unreasonable to a high degree. It is important to remember that Mr Thomas did not have any specific recollection of the Property or his communications with the defendant. This meant that the contents of the witness statement depended, to a greater degree than might normally be the case, on the angle of approach and the focus of the enquiry. The statement also was in the nature of a response to the factual case of Mr Wheatley , whose oral evidence added materially to the account of how Mr Thomas’s advice was elicited in the relevant conversation. The result of all of this was that a statement that responded in perhaps a rather literal way to the defendant’s evidence proved not to have explored avenues of enquiry which, when followed at trial, were damaging to the claimants’ case. As mentioned above, the defendant’s solicitors expressly raised concerns about Mr Thomas’s statement. But I am not told that they produced a statement of their own from him or specifically challenged particular matters of fact or assertion. I do not at all think that the statement obtained from Mr Thomas by the claimants’ solicitors was drafted with a view to being misleading, and it seems to me that it was not unreasonable of them to rely on it, although the loss of the case at trial might possibly have been avoided if they had explored the issues more widely and intensively with Mr Thomas”
I have also written about the work of Dr Julia Shaw on this subject. More guidance can be found in her article in the Scientific American What Experts Wish You Knew about False Memories.
In the article Dr Shaw asks top memory researchers to comment on what they wish everyone knew about their field. There is plenty of useful information for litigators. However I just want to concentrate upon the comments of one of the experts feature – Annelies Vredevelt.
BE CAREFUL ABOUT HOW YOU ASK QUESTIONS ABOUT A MEMORY
“What I’d like everyone to know is how (not) to probe for a memory of an event.
When you are trying to get a story out of someone, be it about a witnessed crime or a wild night out, it seems natural to ask them lots of questions about it. However, asking closed questions, such as ‘what was the color of his hair?’ or worse, leading questions, such as ‘he was a redhead, wasn’t he?’ often leads to incorrect answers.
It is much better to let the person tell the story of their own accord, without interrupting and without asking questions afterwards. At most, you might want to ask the person if they can tell you a bit more about something they mentioned, but limit yourself to an open and general prompt such as ‘can you tell me more about that?’
Research shows that stories told in response to free-recall prompts are much more accurate than stories told in response to a series of closed questions. So if you really want to get to the bottom of something, restrain yourself and don’t ask too many questions!”
The fact that the very act of taking a witness statement can have a major impact on the evidence is recognised in Gestmin SGPS -v- Credit Suisse (UK) Ltd  EWHC 3560.
“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 or 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 10 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 record. 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.”
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.”
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.
AND WHAT DOES THIS HAVE TO DO WITH CIVIL LITIGATION?
The basic answer is – everything. Whilst the criminal, and family, courts have paid some regard to the fallibility of memory it plays virtually no part in the training or day to day practice of the civil lawyer. Until that is, a witness is cross-examined about a witness statement that “their lawyer has drafted” – and (oftentimes) blames the lawyer for any inaccuracies.
A UNIVERSAL ISSUE IN EVERY TYPE OF CIVIL COURT
The major mistake would be to think that this only applies to matters such as allegations of sexual abuse. The issues here are universal.
In a judgment given n the Companies Court Mr Registrar Briggs( in Cusack -v- Holdsworth  EWHC 3084 (Ch).) said:
“… the fallibility of the memory has to be taken into account when determining issues of fact. Memory is an active process, subject to individual interpretation or construction. Each witness will have produced their witness statements many months ago, will have been asked to read or re-read their statement and review documents before giving evidence in court. There is high level commentary that reveals that this process reinforces a memory, even if the memory was false to begin with, and may cause a witness’s memory to be based not on the original experience of events but on the material which has been read and re-read.”
NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS FROM APRIL 2021: IN-HOUSE WEBINAR AVAILABLE
In April this year those practising in the Business and Property Courts will be subject to much more stringent requirements in relation to the preparation of witness statements relating to trial. The lawyer conducting the case will have to sign a Certificate of Compliance in relation to witness statements served at trial. I have prepared an in-house webinar that deals with these new rules and the steps that litigators have to take to comply, protect their clients and protect themselves.
Details are available at firstname.lastname@example.org