One of the topics explored by a recent panel of international experts at London International Disputes Week was the malleability (and thus fallibility) of human memory and the resultant impact on reliable witness evidence.
Memories are not fixed but are fluid and malleable. As part of an organic supercomputer (the brain), each time they are ‘retrieved’, they can be rewritten unwittingly by new information or perceptions coloured by the dispute.
The processes involved in both litigation and international arbitration exacerbate these issues through numerous interactions with witnesses’ memories.
Typically, practitioners prepare witness statements from relevant documents long after the events in question. The statements are then ‘confirmed’ by the witnesses. Months later, the witnesses refresh their memories of events by re-reading documents and their statements before cross-examination.
A common plea (see Johnny Depp’s cross-examination in his libel claim) is that a witness did not read his statement properly or know all of its contents because the lawyers prepared it.
Both the international arbitration community and the judiciary recognise these concerns. The International Chamber of Commerce has produced a report summarising research into this topic and suggesting ways that practitioners can minimise the adverse effects.
For some years, judges have treated witness evidence as less reliable than contemporaneous documents. But is this an issue solely with witness evidence or do those assessing it play a part?
As outlined during the panel by Raymond Aghaian, partner at Kilpatrick Townsend, this is particularly acute in the US where jury trials still play a large part in commercial cases and imprecisions and perceptions are paramount as a result.
Even for the highly trained judiciary, appearances still matter. Nick Dunne, commercial litigation partner at Walkers in the Cayman Islands, noted that, for judges, the most helpful witnesses were not necessarily those who were ruthlessly truthful about what they could and could not remember, but rather those who had prepared carefully and came across as straightforward and confident, even when their memories may be tainted.
These difficulties have led to suggestions that artificial intelligence (AI) could replace human judges. Swathes of the legal profession view this suggestion with scepticism, partly because, at present, AI judges cannot assess contextual matters that affect witnesses’ behaviour and play into their evidence.
As such, is the real issue with witness evidence itself and are we, therefore, reaching a stage where we might dispense with it in commercial cases? As Heather Murphy, barrister at XXIV Old Buildings, put it: “Witnesses in commercial cases have effectively outsourced their memories to their Outlook emails.”
Judges can obtain a near-complete contemporaneous chronology of events from just the documents. AI could be used to predict where ‘truth’ in a commercial dispute lies by analysing the documents more quickly and accurately than humans can.
However, AI cannot accurately assess the effect of the feelings and perceptions that give context to a dispute and resultant human behaviour.
To try to address these issues, practice direction 57AC establishes new rules for trial witness statements.
The witness and lawyer must follow, and certify compliance with, a statement of best practice. This limits the documents put to the witness and prohibits practitioners from preparing an outline statement to form the basis of the first interview.
Documents will still play a key role in witness evidence, but witnesses must identify how their recollection was refreshed by the document (Global Display Solutions Ltd v NCR Financial Solutions Group Ltd [2021] EWHC 1119 (Comm)).
Finally, proponents of an abolition or reduction of witness evidence point to potential costs savings for the parties as well as time saving for the courts.
However, the matters currently covered by witness evidence will still need to be covered, probably by lengthier and more laborious submissions. A hope for time and cost savings may, therefore, be overly optimistic.
It also underestimates the need for justice to be seen to be done and the benefit to litigants of ‘telling their story’.
Ultimately, to abolish or further limit witness evidence would be a seismic step for the English legal system, built on common law principles.
However, as highlighted by Emanuele Breggia, partner at Hi.lex in Milan, the civil system used in Italy (as well as widely on the continent) also has its problems. Here, witness evidence is used minimally, which means that it can be difficult to get a first-hand account of events and all-important context for a dispute. As such, simply reducing the courts’ use of witness evidence isn’t the solution.
It is possible that, in the not-too-distant future, our memories and feelings will be capable of external download before they become tainted with their metadata overwritten by more recent attempts to access them.
Until then, increased awareness amongst practitioners of the malleability of memories and strenuous efforts to avoid affecting them is probably the only route open to us without a fundamental change in the nature of English litigation. The issue should, however, be watched with interest.
This article was first published in Litigation Futures, read here.
Sarah Murray