THE MODERN JUDGE AND FACT FINDING: “TRUTH IS STRANGER THAN FICTION” ~ CIVIL LITIGATION BRIEF.
There is a full review of Sir Mark Hedley’s book The Modern Judge on Pink Tape, where Lucy Reed explains how the book mysteriously appeared in her hotel room the morning after the Family Law Awards. (Lucy speculates that Sir Mark Hedley donned his robes and snuck it into her room, it is not for me to comment – I bought my copy.) Lucy gives a full review of the book. Here I have a much more limited task: I concentrate upon one aspect of the text – how judges find facts.
“What is the purpose of a trial or enquiry? Surely it is to get to the truth: that is why we have them”
“Truth is a difficult concept”
FAMILY LAWYERS AND FACTS
There are many posts on this blog that deal with the difficulties that civil judges have when faced with a morass of, often contradictory, evidence. The Gestmin guidance is nowadays almost universally applied. Family judges, it seems to me, have it far harder. There are often few documents, no e-mail chain (but a surprising amount on social media sometimes) and emotions are running very high. Further the consequences of the wrong result in the family courts can be dire, even fatal. It is, perhaps, not surprising that when Mr Justice Mostyn gave a talk at his alma mater, he concentrated upon the difficulties of fact finding for a trial judge.
So, with that in mind, I read the book (and review the book) from the point of view of the guidance it gives in relation to judicial fact finding.
FACT FINDING IS IMPORTANT: INDEED ESSENTIAL TO MODERN DEMOCRACY
There is a recognition that fact finding is a difficult task for a judge. However it is not one that should ever be abandoned.
“… however hard we press the question of obtaining the truth, no society should abandon that aspiration as the object of the trial.”
HOW THE JUDGE GOES ABOUT THE TASK OF FACT FINDING
Starting with the most difficult task imaginable – parents accused of bringing about a child’s death, the process of fact finding is explained.
- Start with that part of the evidence in the case that is agreed, or at least, uncontroversial.
- “Controversial matters have to be assessed in the context of the agreed evidence. IN this case, there will be one or two people who actually know the truth but the judge will not be one of them.”
- Turning then to assessment of the witness.
- “... I still start with the assumption that I am being told the truth, in the sense of what the witness is telling me is what he believes to be true”.
Indicators of dishonesty
There are indicators of dishonesty:
- Evidence that is tinged with malice.
- Evidence that is inconsistent with the agreed background.
- Evidence that is inconsistent with what that witness has said before.
None of these matters proves dishonesty “but they cause alarm bells to ring”.
Further a witness can be honest, but the question is “are they accurate and reliable?”
The difference between an honest and a reliable witness
- An honest witness may be very convincing but also very mistaken.
Considering the disputed question
The burden of proof is considered with care. It is possible for a criminal court find someone not guilty and a civil court to find that an act was committed.
This goes beyond “commonsense”
“It is sometimes tempting to assert that discovering the truth, something which we all too often have to do, is just a matter of common sense. Would that it were so! Human experience, however, teaches that human ingenuity is almost limitless when it comes to skewing human relationships and making human life difficult. Any family judge will have long last count of the cases in which the facts, if tendered to a publisher of novels, would be rejected as beyond belief… truth is often stranger than fiction”
Proof is the key
The whole pure truth is often not always accessible. It was in recognition of this that the concept of proof was first devised. Proof is a protection against human error (on the part of the judge).
Could it be done better?
The answer to this is “of course”. However given the contradictions and fallibilities of the judicial system coupled with “the activities of those who for their own reasons are anxious to evade the truth”, things probably cannot be done radically differently.
In concentrating one one aspect (in one chapter) I am, of course, not doing justice to the entire book. However Lucy’s review does that.As the book observes the judge’s basic task of fact finding is not a matter that has been subject to great research. Neither is it considered in detail by practitioners (whose job it is to present the evidence to the judge and persuade them that their client’s account is the correct one). This book is worth reading for that aspect alone.
The litigation & memory series
- Lawyers, litigation & memory: The Memory Illusion
- Lawyers, litigation & memory II: How you are affecting the memories of witnesses (& possibly sowing the seeds for defeat).
Key posts of witness evidence and memory
- In-House course on witness statements and civil procedure.
- Witness statements: When things go wrong – blame the solicitor.
- Witness statements: alteration and the fallible memory: a scientific study.
- Witness statements and Hillsborough: confirmation bias at its worst.
- Why lawyers have to know about the fallibility of memory (even company lawyers)
THE GESTMIN TEST
There is a full review of Sir Mark Hedley’s book The Modern Judge on Pink Tape, where Lucy Reed explains how the book mysteriously appeared in her hotel room the morning after the Family Law Awards. (Lucy speculates that Sir Mark Hedley donned his robes and snuck it into her room, it is not for…