The post written yesterday on litigators and memory has already given rise to a large number of responses, particularly on Twitter. It is worthwhile taking the matter further by considering how and when a litigator should take stock of the quality of the evidence. There is much to be gained by making a critical examination of your own evidence as early as possible.
“The approach … to proof of the claim asserted amounted, as David Richards LJ memorably pointed out during the argument, to an assertion that they did not know what the evidence was going to be, but assuming that it stood up, all would be fine.”
FAILURE TO EVALUATE YOUR OWN EVIDENCE CAN (AND PROBABLY WILL) BE EXPENSIVE
An analysis of the quality of the evidence needs to take case in every civil case, at the earliest stage possible. Perhaps the best (and probably the most expensive) example of the risks can be seen in Excalibur Ventures LLC -v- Texas Keystone LLC  EWCA Civ 1144
Legal funders had invested a total of £31.75 million in a case that, in transpired,
“… was based on no sound foundation in fact or law and it has met with a resounding, indeed catastrophic, defeat. The fact that it has done so arises in large measure as a result of facts and matters which were known to the Wempens before the case started. “
DUE DILIGENCE “IF THE EVIDENCE STANDS UP YOU WILL WIN”
One of the funders argued that it should not have to pay indemnity costs because it had carried out due diligence prior to providing the funding. Tomlinson L.J. observed:-
“… I agree with the judge that the due diligence undertaken by the funders before agreeing to support this claim was inadequate. The judge describes what was done at length and gives his reasons for that conclusion. I do not propose to lengthen this judgment by repeating that exercise. Mr Waller characterised the due diligence here essayed as variously and in some cases cumulatively superficial, feeble and rushed. I agree. I am particularly unimpressed by the Platinum funders’ plea that they relied not just upon the advice of one of the best known firms of solicitors in England, Messrs Clifford Chance, but also sought independent advice from Orrick. The advice of the latter was so heavily qualified and expressly dependent upon the analysis conducted by Clifford Chance as to be of very little value. The version of it which we have seen is redacted so as to preserve Excalibur’s privilege. The approach of Orrick to proof of the claim asserted amounted, as David Richards LJ memorably pointed out during the argument, to an assertion that they did not know what the evidence was going to be, but assuming that it stood up, all would be fine.”
SO LEGAL FUNDERS, LEGAL INSURERS AND LITIGANTS YOU ARE BEST ADVISED TO GET YOURSELVES A “DEVIL’S ADVOCATE”
The original “Devil’s Advocate” held an official position in the Catholic Church. Their task was to scrutinise the evidence relating to a candidate for sainthood and provide arguments against canonization. The role is described in the Catholic Encyclopedia:
“It is the special care of the Promoter of the Faith to prevent any rash decisions concerning miracles or virtues of the candidates for the honours of the altar. All documents of beatification and canonization processes must be submitted to his examination, and the difficulties and doubts he raises over the virtues and miracles are laid before the congregation and must be satisfactorily answered before any further steps can be taken in the processes. It is his duty to suggest natural explanations for alleged miracles, and even to bring forward human and selfish motives for deeds that have been accounted heroic virtues….Owing to his peculiar duty of antagonizing the proofs put forward on behalf of persons proposed for saintly honours, the Promoter of the Faith is commonly referred to, half jocosely, as the devil’s advocate.”
AN UNPOPULAR ROLE BUT A NECESSARY ONE
We have seen, over the past 12 months in particular, many cases, and many eminent law firms, come to grief at trial, and sometimes in disciplinary proceedings. A common factor in most of these cases has been the uncritical collection of evidence, particularly witness evidence. In some cases proceedings have been issued on the basis of unsigned witness statements, only for the witness in question, to deny that evidence and give a totally different account.
COLLECTING AND ASSESSING EVIDENCE
It takes energy, dedication and hard work to prepare evidence for trial. All of this will come to nought if the evidence has innate weaknesses. The litigant has a false view of the strength of their case. Reasonable offers may be refused. Those weaknesses will come to light at trial. Leaving it to trial for those weaknesses to be exposed is a very expensive process. Consider the judgment of Mr Justice Collins in Smith -v- Bar Standards Board  EWHC 3015 (Admin).
“It is worth noting that in the present approach to litigation involving the drafting and redrafting of statements of witnesses, the latest of which is submitted as his or her evidence, it is often shown in cross-examination that the witness statement does not in truth fully or properly reflect his true evidence. This does not mean that there has been deliberate invention but it is all too easy to persuade a witness that he should put his evidence in a particular way which may turn out not to be entirely accurate.”
ASSESSING AND TESTING THE STRENGTH OF THE EVIDENCE IS NOT THE SAME (AND FAR REMOVED) FROM COACHING A WITNESS
What I am not advocating here is witness coaching or training. There are numerous posts on this blog where judges have been wary of this and it often backfires. (It is the people obtaining the evidence and drafting the statements that most need training.) Testing, or closely scrutinising, the evidence so that a party has an accurate view of the strengths of their case is wholly appropriate. Indeed failure to test the evidence could well represent a breach of duty.
As ever the best guidance available on this issue is in the Bar Council Code of Conduct on Preparing Witness Statements for use in Civil Proceedings.( Available here 26_-_the_preparation_of_witness_statements (4))
(v) Rule 705 of the Code of Conduct provides that a barrister must not rehearse practise or coach a witness in relation to his evidence. This does not prevent Counsel giving general advice to a witness about giving evidence e.g. speak up, speak slowly, answer the question, keep answers as short as possible, ask if a question is not understood, say if you cannot remember and do not guess or speculate. Nor is there any objection to testing a witness’s recollection robustly to ascertain the quality of his evidence or to discussing the issues that may arise in cross-examination. By contrast, mock cross-examinations or rehearsals of particular lines of questioning that Counsel proposes to follow are not permitted. What should be borne in mind is that there is a distinction, when interviewing a witness, between questioning him closely in order to enable him to present his evidence fully and accurately or in order to test the reliability of his evidence (which is permissible) and questioning him with a view to encouraging the witness to alter, massage or obscure his real recollection (which is not). The distinction was neatly drawn by Judge Francis Finch in In Re Eldridge in 1880, where he said:
“While a discreet and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know and the extent and limitations of their memory, as guide for his own examinations, he has no right legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know.”
At the risk of stating the obvious, this is a difficult area calling for the exercise of careful judgment.”
There are numerous posts about witness evidence on this blog. Some that are directly relevant are:-