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The Quality of Witness Evidence

The Quality of Witness Evidence

I am sure you have not spent the Festive Season watching Court room dramas!

Nevertheless, everyone is aware of one of the key elements of the adversarial process – the cross examination of witnesses.  How many productions turn on a slip of the tongue when a confused judge and jury suddenly see a case in its true light!

But how reliable is oral evidence?  In all cases now, detailed witness statements are provided well in advance of trial.  Cross examination at trial of the witness can often be very narrow as the advocate simply tries to get the witness to say by a straightforward “yes” or “no” answer what is necessary to support his or her client’s case.

In many commercial cases, the reliability or weight of witness evidence at trial is seen as not as significant as what was once the “paper trail” but is now the “digital trail” which precedes the involvements of lawyers.  In today’s day and age, the fact is that so much communication takes place by electronic means and therefore there is contemporaneous black and white evidence (whether in digital or documentary form) rather than witnesses seeking to recall conversations at meetings or over the phone with very little in the way of a hard copy record.

There has also been scientific research demonstrating how even evidence given by truthful witnesses is “fallible at best and unreliable at worst”.  Memories are not fixed mental records; they are far more nuanced and are jumbled up with perceptions.  How many times have my claims to have scored bags of goals from strikes outside the box been undermined by the recollections of old team mates who can only remember one or two mishit tap-ins from two yards out!

So a careful and thorough analysis of contemporaneous documentary records is critical and in commercial litigation is far more likely to give an indication as to the likely outcome whatever everyone says afterwards!

One of the lessons of this is to ensure that you retain all records (subject to GDPR!).

Another important lesson is the importance of carefully reviewing what you say in an email or text.  Whilst everyone accepts these means of communication are used for all types of informal conversations often in place of the spoken word, the fact is that they will very likely have more weight evidentially than the spoken word.

If you have a query or would like to book an appointment please get in touch with our First Contact team on 01256 320555 or email mail@clarkeandson.co.uk

Paul Cowdery

Dispute Resolution Partner


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