2021iii31, Wednesday: Questions, questions.

With less than a week to go before new rules on witness statements in commercial litigation come into force, the problem remains: do lawyers know how to ask questions?

Short thought: I’ve written before about the problem of malleable memory, and the fact that from 6 April onwards witness statements for commercial trials will need – explicitly – to take that into account. (That’s thanks to Practice Direction 57AC, for nerds like me.)

It’s how litigators will need to do that which I find interesting. And it gives rise to a concern: do lawyers still know how to ask questions?

Simply in posing the question, it sounds ludicrous. I’m a barrister. Asking people stuff is what we do, isn’t it?

Well… up to a point.

Here’s the problem. PD57AC says commercial trial witness statements have to be in the witness’s own words, as far as possible. They need to be made with reference to documents only where it’s essential. They need to be limited to witnesses’ own experience and recollection.

And – critically, for the purpose of this post – they need to be made through a litigator interviewing the witness:

  • As far as possible without asking leading questions, and definitely not when covering the really critical and contentious areas;
  • Sticking to open questions; and
  • “Recorded as fully and accurately as possible, by contemporaneous note or other durable record, dated and retained by the legal representatives.”

This is the point at which barristers who spend their time on crime and family matters laugh to the point of nearly passing out. They’re the ones for whom examination-in-chief, where you tease out your own witnesses’ stories one open question at a time, is a daily stock in trade.

But for civil practitioners, who’ve only ever asked a handful of open questions in supplementaries or re-examination and otherwise spend their lives cross-examining, this is baffling; a dimly-lit throwback to half-remembered advocacy classes in Bar school. I suspect it may be even tougher for solicitors, for whom this kind of questioning has never been exactly a core job skill.

Because let’s be honest. Drafting witness statements doesn’t happen as described above. Leaving aside the habit (which the Practice Direction makes clear it deplores) of using witness statements as a sort of pre-skeleton, full of argument and comment on documents and citation of authorities, even a straightforward narrative is (more often than most would care to admit) drafted by a solicitor from the documents, and then signed off by the client. And in particular the process of honing the draft to finality bears very little resemblance to what the Statement of Best Practice appended to the Practice Direction starkly requires: that it be

done by non-leading questions for the witness to answer in their own words, and not by proposing content for approval, amendment or rejection by the witness.

Like my crime friends, this doesn’t bother me. I’m fortunate that a decade as a reporter and another decade as an investigator has left me entirely comfortable with open questioning: letting a witness tell their tale in their own time and words, looping back into points of particular interest with more focused (but still open) enquiries and then expanding the view back to wide-angle as the need arises.

I do recognise this isn’t normal for many people – and I suspect some may struggle. Not because they’re anything other than fantastic at their jobs. But because this is hard. It takes focus, and time, and a lot of practice. Anyone who remembers Bar school will recall early struggles to master questioning styles, and the frustration of being unable to sustain a coherent line of enquiry without slipping into yes/no or leading the witness.

So if the Courts take this change seriously – and judges already punish witness statement malefactors with costs sanctions – we’re going to have to change our ways.

Here’s a final irony. There’s actually a group of people who are rather good at this. They’re called police officers. Not all of them, of course. But UK police recognised long ago that interviewing where you actually wanted to find out what happened, rather than seeking to satisfice by getting just enough to stand up the case against the person you just know done it, is a tricky and technical business. Starting with the PEACE method and moving onto cognitive interviewing, the best police interviewers are examples of what the Practice Direction requires. We lawyers could do worse than to ask them for help.

(Footnote: I had the jab yesterday. And as a result I’m feeling somewhat under the weather – headache, shivers, temperature. Nothing major, but I apologise in advance if Friday’s piece ends up just being a linkfest.)

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2021ii5, Friday: Malleable memory.

The litigation process causes witness inaccuracy – and the courts are recognising that. Also: a wonderful hymn to the joy of errors. And why stories can help fight corruption.

Short thought: Job one, when you’re a barrister, is to read the papers. 

In olden times – that is, a year ago – these would normally arrive in fat bundles. Possibly, even today, tied up in pink tape. (Ah, the nostalgia.) Nowadays it’s PDFs. Already put together if you’re lucky. Buried in dozens of nested emails if you’re not. (The fact that I’ve written about this three times in the past six months shows how painful this is.)

But however they come, knowing the papers, inside out, is critical.

In commercial litigation this is if anything more important. The reason? Over the past decade or so, judges in the English commercial courts have recognised the fundamental problems with oral witness evidence, long considered the gold standard and backbone of any trial. 

The first really stalwart example of a judge making it clear that documents, not people, were what they would primarily rely on was the case of Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), in which Leggatt J (now Lord Leggatt JSC) made clear at [15]-[22] his awareness that memory is fallible, that the process of civil litigation itself risked making it still more fallible, and that the mechanics of memory formation itself meant relying on witness recollection except as a means of scrutinising the documents in the case was usually a futile exercise.

There’s been push and pull about Leggatt J’s points ever since. But at their heart they stand up. They reflect, among other things, the growing and spreading knowledge of how cognitive biases function (warning: that link is a rabbit hole from which you may not emerge), and the fact that memory is a construct, not a recording. 

The Courts’ recognition of this, at least in commercial litigation, is now official. Enshrined in a new practice direction (PD57AC for those keeping score – starting at p64 of the linked PDF), are rules about witness statements at trial which seek to mitigate the adverse effects of the litigation process and improve the odds of witness evidence actually being useful. The explicit recognition of what one might call the Gestmin principle is at para 1.3 of the appendix, at page 69 in the PDF I linked to:

Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

(1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

(2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

(3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

The other reason for the PD (and this was made clear on a enlightening webinar by the Leeds BPC Forum earlier this week addressed by Andrew Baker J) is the burgeoning use of witness evidence to make arguments. Judges are getting more and more annoyed by this – one can do little better than look at the many, many posts on Gordon Exall’s Civil Litigation Brief (this is just the latest) on this subject for excellent examples. 

Either way, though, the message is clear. Know your papers. Make them tell the story you need to tell, and use witnesses carefully to buttress that story. Because if you don’t, the other side definitely will.

Someone is right on the internet: Speaking with the experience that comes from being the parent of a 14-year-old, her generation seem to have a harder time with perfectionism than mine ever did. I don’t know why, but I suspect the welter of examples, spread across countless media, of people who seem effortlessly to succeed – with all the hard work in the background neatly occluded – may have something to do with it. The fact that Gen Z simply, frankly, has it harder than we do, with narrower pathways to success and far greater consequences for screwups along the way, is probably also relevant.

Even so, I remain a true believer in the principle that to be good at anything, you have to be OK with being bad at it for a while as you try to improve. And that it’s OK – no, it’s critical – to be OK with getting it wrong. So long as you only get it wrong the same way once. I remember interviewing someone for a job once who surprised me at the “do you have any questions for me?” stage by asking how I’d deal with her making a mistake, which sparked a great discussion about the importance of assessing people by how they correct and learn from errors, rather than by the errors themselves. A reallybrave question, but in fact an excellent one – one which made sure she got onto the final shortlist. 

So this piece by David Duchovny (yes, that David Duchovny) struck a chord. Starting with a Beckett quote – “Fail again. Fail better” – he weaves a hymn to the importance, and sometimes even the joy, of screwing it up and trying over. Or, as Fred and Ginger put it, “Pick yourself up, dust yourself off, and start all over again.” He also used a word I’ve never seen before, but am now in love with: hamartia, which he describes as the “near miss” that delivers an electric energy driving the next attempt. (Dictionaries give a darker meaning: the tragic flaw in a hero that triggers their downfall. But Duchovny’s sentiment, if not his usage, is bang on.)

Seriously, it’s a great read. (Sorry, paywall again, but The Atlantic’s is metered so you should be able to take a look.) And I can’t sing this song often enough. 

Thing I wrote: In less plague-ridden times, Fiona Horlick QC – a fantastic advocate and a genius at health and safety and disciplinary law – is my roommate at Chambers. 

(Barristers’ chambers are usually, although not always, set out in individual rooms rather than open-plan spaces. Our work doesn’t lend itself to the disruption and lack of privacy of open-plan. But often those rooms are shared with one or two others – which both cuts the cost and makes for a pleasant collegiality. Alex Haines, one of only a handful of lawyers who are genuine experts in the law of international organisations like the IMF or the international development banks, is in our room too.)

For the moment, of course, we’re physically far-flung. But we’re still working together. And Fiona and I put together a piece for the Government’s Public Sector Counter-Fraud Journal (link to the whole thing in PDF; we’re on page 5) on how the stories people tell themselves can encourage corruption – and how we can use those stories to quell it or find it as well. My past life as a reporter means that perhaps I look too much for narrative in my work as a barrister, but finding the right story can be a hugely important tool (a bit like finding the right analogy – see the last chunk of this piece). And understanding how the stories which people tell themselves can influence their actions is important for this, too.

Thing I said: My friend Daniel Barnett, who’s been mentioned in these annals before, was as upset and (frankly) perplexed by the Times’s assault on employment tribunals and their judges as I was. So he corralled – sorry, persuaded – several employment lawyers to take the Times’s inaccurate claims apart on his YouTube channel. I was one of them. Personnel Today followed us up – thankfully with a pic of someone else, not me. Phew.

Incidentally, judges aren’t the only people who can’t answer back. Think of all the tribunal staff who’ve been working their hardest, amid this nightmare of a pandemic, to keep the show on the road and to keep delivering justice. They don’t have a voice either, but their morale is hit just as badly by inaccurate garbage like this. We’re fortunate to have a voice; as (for barristers) self-employed professionals, speaking up for people is our job. So in this we’re speaking up for them, too.

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