We have covered many countries so far in this series which looks at the advice that judges give on advocacy. For the next few posts I have decided to stay closer to home. I want to look at the talk given at Bristol University Law School in December 2014 by Mr Justice Mostyn “The Craft of Judging and Legal Reasoning”. The talk is about fact finding and the exercise of the discretion after that. I will concentrate on the fact finding. (Again the main object of the exercise is to encourage readers to read the original. You will find some interesting issues of fact being considered…)
“The ability to tell a coherent, plausible and assured story, embellished with snippets of circumstantial detail and laced with occasional shots of life-like forgetfulness, is very likely to impress any tribunal of fact. But it is also the hallmark of the confidence trickster down the ages.” (Lord Bingham)
This was not a talk about advocacy but a talk about the way judges going about “the process of judicial fact-finding in civil proceedings”. A knowledge of this is essential to every working advocate.
THE KEY FACTOR CREDIBILITY
If I were to ask you what was the key factor in finding facts in a trial you might reply “credibility”. Who does the judge believe? The primacy of the factor of credibility has an iconic, almost canonical, status. Thus Posner writes at page 123:
“No legal catchphrase is more often repeated than that determinations by a trial judge whether to believe or disbelieve a witness can be overturned on appeal in only extraordinary circumstances. The reason is said to be the inestimable value, in assessing credibility, of seeing and hearing the witness rather than reading a transcript of his testimony, since the transcript eliminates clues to veracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expressions.”
There is a detailed consideration of the guidance and case law relating to credibility and the limitations of witness evidence in particular the Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor  EWHC 3560 (Comm) (which has been considered many times on this blog*)
THE FALLIBILITY (AND SELF-SERVING) NATURE OF MEMORY
The talk is peppered with useful quotes and citations.
“One of Lord Bingham’s essays in “The Business of Judging” is “The Judge as Juror: The Judicial Interpretation of Factual Issues”. There he quotes an extra-curial speech by Lord Justice Browne, who makes the same argument as Leggatt J, but more laconically:
“The human capacity for honestly believing something which bears no relation to what actually happened is unlimited.”
12. I was reading over the weekend the review in the 4 December 2014 edition of the New York Review of Books of the latest work by the masterful storyteller Aleksandar Hemon “The Book of My Lives”. In an interview Hemon said this:
“If I try to tell you what happened to me in ’91, I’ll have to guess about certain things, I’ll have to make up certain things, because I can’t remember everything. And certain memories are not datable. You and I might remember our lunch, but some years from now we won’t remember it was on a Friday. I will not connect it with what happened this morning because they are discontinuous events. To tell a story, you have to—not falsify— but you have to assemble and disassemble. Memories are creative. To treat memory as a fact is nonsense. It’s inescapably fiction.”
In my opinion a trier of facts should bear this firmly in mind when weighing a witness’s memory.”
CREDIBILITY IS MORE THAN DEMEANOUR
Continuing to consider the observations made by Lord Bingham:
“He cites the dissenting speech, now almost forgotten, of Lord Pearce in Onassis and Calogeropoulos v Vergottis  2 Lloyd’s Rep 403, HL: “‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, it is so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
On judges and advocacy
- Things lawyers do to annoy judges: edited highlights
- Advocacy – the judge’s view II: Useful guidance from Down Under.
- Advocacy – the judge’s view III: More Guidance from Canada
- Advocacy – the judge’s view IV – “Avoid Bullshit, smoke and mirrors” (oh and beware “well padded vanity”).
- Advocacy – the judge’s view V: to persuade a judge think like a judge.
On assessing witness credibility
- The Arroyo Judgment 3: witnesses and credibility
- Witness evidence, reliability and credibility: why everyone should read Gestmin
- Litigators must know about credibility.Witness Statements and Witness Evidence: More about Credibility.
- Which Witness will be believed?Is it all a lottery?
- The witnesses say the other side is lying: What does the judge do?
- Assessing the reliability of witnesses: How does the judge decide?
- Which witness is going to be believed? A High Court case.
- The Mitchell case and witness evidence: credibility, strong views and reliability.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability