“THE PRACTICAL EFFECT OF THIS: THERE ARE DANGERS IN FAILING TO RECOGNISE THE RISKS OF (ACCIDENTALLY) TAKING “PARTISAN” STATEMENTS
The task for anyone collecting evidence is two-fold: (1) to gather evidence in support of the client;s case; (2) to enable the client to properly appraise the strength (and weaknesses) of the case in order that decisions can be made as to settlement or whether to proceed to trial.
Relatively few cases go to trial and litigators may feel it appropriate to gather evidence in a “partisan” way. However if the evidence is not collected fully and properly this can lead to real shocks at trial. It is worthwhile, indeed essential, that a client has a full and honest picture of the risks they are running in litigating. Gathering one-sided evidence (albeit inadvertently) could nasty surprises at trial.
This is one reason many litigants fail at trial. Not because they are deliberately dishonest (although that does happen) but because they have come to believe what they say is true. It can be the process of investigation and questioning that leads to this belief.”
The post on “Lawyers, litigation and memory“clearly struck a chord. It had many hundreds of readers (on a Sunday too). It highlights the fact that a failure to be trained in, and consider, issues relating to memory, causes litigators numerous problems. These problems only become apparent once a witness is cross-examined. Here we look at how the basic way in which questions are asked can affect memory and then go on to have a major (often detrimental) impact upon the litigation itself.
HOW LAWYERS AFFECT MEMORY
We have looked many times at the issue of how the litigation process affects memory. This starts when a witness statement is taken. No training is given to lawyers on this issue, and therefore no thought, is given to the impact this has upon memory.
GUIDANCE FROM THE EAST
I have recommended before the article by Ula Cartwright-Finch and Alex Waksman of…
View original post 1,822 more words