How do judges decide whom to believe?

Here is an interesting article  by David Hart QC on the UK Human Rights Blog about how judges form a view on the credibility of witnesses, particularly where there are conflicting accounts of events.

The article is called Judging people – and a case about a Porsche 917 and relates to the judgment of HHJ Simon Brown QC in a case called Piper v Hales. In the best tradition of English judgment writing, Judge Brown looks back to authoritative statements of the law and supplements them with practical assessments of the human factors which confront both a witness and the judge. Most of us would have difficulty describing the events of yesterday, still less those of some years ago, and even without the pressure which comes from unfamiliar surroundings and the significance of one’s Oath to tell the truth.

Judge Brown is well known for asserting the importance of contemporaneous documents as a cross-check against what may be untruthfulness or may be no more than faulty memory. That is a reminder that eDisclosure / eDiscovery is more than merely a project management exercise but aims to uncover evidence.

The point emphasised in this judgment is the implication arising from the requirement (which is relatively new) to produce witness statements as a substitute for oral evidence in chief. That was designed to save costs by abbreviating the time spent taking witness evidence. That is a very judge-led view the of expense, one which elevates court time and judge time over all the other components of preparing a case. Its consequence is that lawyers take infinite pains in advance of the trial to polish their client’s story, often, subconsciously no doubt, substituting an idealised version of events for that which actually happened.

This is not necessarily an accusation either of fabrication or of running up unnecessary costs. It does, however, open the door to both these things and gives the judge an additional problem: he or she must evaluate the credibility of a witness without the benefit of hearing that witness gave the bulk of his or her own evidence. All he has is the lawyers’ idealised version and the challenges to that which emerge on cross-examination. This is fair to neither judge nor witness, quite apart from the fact that the alleged cost savings are only illusory. If there were any saving in costs for those cases which go to trial, there is the significant expense of preparing witness statements for the many more cases which do not. Sure, cases may settle because even the lawyers’ idealised version does not come up to scratch, but it may settle also for the entirely wrong reason that the cost of preparing the statements exceeds the value of the claim.

The judgment is interesting in its own right, quite apart from these points.

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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