REUTERS | Alexander Demianchuk

Memory… our fickle friend?

I was reading Tony Bingham’s piece on witness evidence in Building the other day and I was sufficiently intrigued by his reference to Leggatt J’s comments in Gestmin v Credit Suisse and another, that I felt compelled to dig out the judgment and read it for myself (or, as least, the relevant bits).

Although the case was concerned with alleged negligent investment advice related to the sale and purchase of shares (so nothing whatsoever to do with construction or adjudication), it is the section in the judgment described as “Evidence based on recollection” which is of interest.

Leggatt J’s assessment of witness evidence

It seems that a lot hung on the witness evidence in this case and the parties called a total of ten individuals (seven on behalf of Gestmin and three on behalf of Credit Suisse).

At the outset Leggatt J highlights an “obvious difficulty” with the witness evidence in this case: that it was based on allegations and a recollection of events that occurred seven years earlier, which brought into question the “unreliability of human memory”.

He goes on to explain that research shows that people are unaware of how unreliable their memories are and believe they are “more faithful” than they actually are. He gives examples of two mistakes people commonly make about the accuracy of their memory:

“(1) That the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate.

(2) That the more confident another person is in their recollection, the more likely their recollection is to be accurate.”

He also explains how people think of their memories as fixed at the time of the experience, which then fades with time, whereas research has demonstrated that memories are “fluid and malleable” and are “constantly rewritten whenever they are retrieved”. This can manifest itself in external information intruding into the memory, as well as the witness’s own thoughts and beliefs. Both of these factors can dramatically change the memory.

Leggatt J cites research that suggests a memory can be rewritten when a person is presented with new information or suggestions about an event, particularly when the event happened some time earlier (he refers to this as being “particularly vulnerable to interference and alteration”). In the context of litigation, that is particularly relevant as witnesses are exposed to powerful biases throughout the litigation process. Added to this is the fact that a witness:

  • May have a stake in a particular version of events.
  • May have a “desire to assist, or at least not to prejudice” the case of the party calling it as a witness.
  • Will be asked to make a statement long after the events took place and, usually, that statement will be drafted for them by a lawyer who is aware of the importance of the witness’s evidence to the issues in the case. The statement is likely to go through several versions before being finalised.
  • Will “refresh” its memory from documents, which may not be limited to contemporaneous documents, but also include the parties’ statements of case. The effect of this is:

“…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.”

Leggatt J concludes that the best approach for a judge is to:

“… place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

What do I take from Leggatt J’s judgment?

I must say that I found this an interesting summary of how the memory works and how there is the potential for it to be manipulated, no matter how well-meaning the manipulation is. We’ve probably all seen examples of memory tests on TV, where a person is asked to identify someone from a line-up after an event has occurred. Did the person have a beard? Was his hair long or short, brown or black? Was he wearing a red or green jumper? Was he young or old? Not everyone fares well in such tests (and I’d certainly struggle with the jumper test!).

However, in terms of the litigation process, I find this a rather depressing view of the reliability of witness evidence (even if it is more accurate than we’d like to believe).

I have never been involved in helping to proof a witness of fact (that I can remember) but I regularly receive witness evidence as part of the submissions in adjudication. While I am alive to the fact that evidence not supported by documentary evidence should be treated with care, I’m not sure it should be disregarded in the way that Leggatt J suggests.

In adjudication, time is short and it is not always necessary for the parties to meet with the adjudicator. If they do, it will provide a limited opportunity for the witnesses to be tested, although the questioning may fall short of the type of cross-examination a witness may be subjected to in the witness box in court. It just depends.

In that sense, I do agree with Leggatt J that there is value in a witness giving evidence and being cross-examined, especially as this allows you (to borrow from Leggatt J again) to:

“… subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness.”

Tony ends his piece with a retort about what he was doing in November 1963. I’m struggling to remember what I had for dinner last Tuesday! Perhaps I should end with Leggatt J’s warning about witnesses:

“…it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

Now, where’s me jumper???

4 thoughts on “Memory… our fickle friend?

  1. I too found this rather troubling, but comments along the same lines were made by Mr Justice Flaux at a recent PTR I attended in the Commercial Court about the distinction between true recollection and reconstruction from reviewing documents long after the event and the appropriate weight to be given to each. It is tempting for litigants to believe that where there is a dispute about what happened at a meeting a long time ago, it will be a case of “one word against the other” and so a “50/50” shot and all about each party’s credibility but what this judgment suggests is that where the burden of proof is on you to prove something was said, which the other party denies, the scales are already weighted very heavily against you if you don’t have notes or other documentary evidence of the alleged statement.

    For me, this decision supports my own constant refrain about the importance of ALWAYS TAKING NOTES!

    (also, as an aside, the importance of selecting the correct expert, and providing the right instructions to him/her).

  2. The advice to take contemporaneous notes is all very well, but those notes may themselves be suspect if they have been taken with the possibility of future litigation.

  3. I am interested by the statement that the vividness of the recollection is not an indicator of accuracy. I have to say that I have tended to have more faith in a witness who can recall details of a meeting like where it was held, where she was sitting and how the conversation came around to the topic in question. Surely, compared to a witness who swears blind that they said “X” but cannot remember where, when or who they said it to you would have to favour the more vivid recollection.

    I also wonder if there is less risk of inaccurate recollections being reinforced in the quicker forms of dispute resolution like adjudication where witnesses are not forced to relive their recollections repeatedly over months of redrafts of their witness statements.

    In practice however, the limitations of witness recollection certainly do exist. Taking a witness statement without the correspondence file to hand will result in a very different outcome to the situation where you can prompt / challenge the witness based on the documentary evidence.

    Nonetheless, the presence of even an uncorroborated witness statement is far more preferable to relying on unsubstantiated facts set out in the Referral. In my experience the answers you get from asking a potential witness to explain (or worse, confirm) facts by e-mail are often very different from the answers that you get when you explain that the answers will appear above a signed statement of truth. My heart sinks whenever I receive a Referral unaccompanied by any witness evidence.

  4. This debate demonstrates the importance of good record-keeping, just like Jonathan highlighted last week with his Max Abrahamson quote:

    “A party to a dispute, particularly if there is arbitration, will learn three lessons (often too late): the importance of records, the importance of records and the importance of records.”

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