Assessing witness evidence
As claimant lawyers, the initial evidence that we have in support of a case tends to come from our own clients and their family and friends. These are the lay witnesses that ultimately go on to establish a case (hopefully) with the assistance of medical records, accident reports, expert evidence and so on. The evidence at the start, however, comes from a lay witness.
Lay witnesses are put in a difficult position during the course of a case. In particular, where facts and events are disputed, cases are less likely to settle. This means that lay witnesses are more likely to give evidence in a trial than an expert and therefore more likely to come under scrutiny from the defendant’s barrister who will cross-examine. Whilst an expert witness may be familiar with the court environment, a lay witness, of course, generally is not and the experience is intimidating and frightening.
The other issue with lay witnesses is that they rely on their memory. Few of us take an accurate note of events as an accident or incident unfolds. Therefore, it is usually some years later that they are called upon to give evidence and the memory can be problematic.
Lay witnesses, therefore, can be both a bonus to the claimant lawyer or a problem, depending on the extent of the memory, the accuracy and the way in which they present. It is the role of a lawyer, on either side, to evaluate the witness evidence that is put forward and, in particular, to review the evidence and strength of a lay witness.
In a recent case, Legg and Another -v- Burton and Others the issue of credibility of witnesses was looked at by HHJ Paul Matthews sitting at the High Court. This was a case concerning wills but the issue about witnesses refers to all in whatever type of case.
The judge made the comment that memory was especially unreliable when it came to recording past events and that memories were fluid, malleable and constantly being re-written whenever they were retrieved. This was the case he thought , even after a particularly distressing incident or traumatic event.
The judge noted that there was considerable interference with memory during the course of a civil case and civil litigation, particularly when preparing for trial. The statement was made a long time after events. The statement was usually drafted by a lawyer who was making judgments about the significance of issues. The statement was completed after the witness had been refreshed by reading documents or going through matters in more detail. Prior to trial, the whole procedure and statement would be reviewed again. In particular, he bore in mind the limitations of memory and that we “all remember what we want to remember”.
What the judge was impressed by was the fact that some of the witnesses retained the essence of the information that they had provided in their witness statement. The fact that there were slight differences and discrepancies he did not think particularly significant. In fact he seemed to suggest this was more supportive of the statement being accurate in the first place.
In the Legg case during the course of the trial one of the claimants was referred back to an incident many years previously which had not been put in her witness statement. The relevance of that evidence only came about in cross-examination itself. This is not unusual. Issues can arise which are simply not known about previously. The evidence given however was in keeping with the overall impression and therefore consistent. It was the overall general consistency which helped the claimants.
The two issues that the judge raised which are perhaps the more pertinent are that there were two main errors when assessing witness evidence. For the uninitiated they may come as a surprise.
The first error was believing was that the stronger and more vivid the feeling or experience of recollection, the more likely the recollection was to be accurate. In his experience, that was not the case. In his view people want to remember what they want to remember and they rewrite memories over time.
The second issue the judge raised was the belief that the more confident another person is in their recollection, the more likely it is to be accurate. Again, his view was that this was not the case at all. They may not have any sinister motive, but they may just simply wish to assist and pursue the case on a favourable basis.
It is experience that teaches lawyers how to assess witnesses. All of us will have had a witness who has not performed well in court (generally through no fault of their own) and it has been a disaster. Most of us would have had expert witnesses who have done much the same. There is no greater feeling of despondency than hearing your evidence fall to pieces in court. What is, however, an issue is the way that we, as lawyers, tend to associate stronger, vivid and confident recollections with accuracy and it is quite clear that judges do not have the same view.
This was a case in which the claimants provided good evidence, fairly consistent and the judge was satisfied with the evidence that they gave. In doing so, however, he did identify the two problems which people associate with accuracy but are not actually connected with it at all. The case identifies the difficulties in assessing witness evidence and the issues a judge might find less helpful.
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