Faulty memories and reliable witness evidence in arbitration

There has been much discussion about the recent changes to trial witness statements in the Business and Property Courts brought about by Practice Direction 57AC. I wrote an article about those changes here with my colleague Sukanya Majumdar and, in short, they're pretty seismic. The changes reflect a growing interest among the judiciary in the reliability of witnesses' memories and in response to a concern that witness statements were being over-engineered by lawyers to suit the needs of their clients' cases. I couldn't possibly comment on that last bit...

If you are interested in this topic, however, the ICC also published a fascinating report late last year, called "The Accuracy of Fact Witness Memory in International Arbitration", that is an essential read. The Report is a beginner's guide to the psychological research on witness evidence, with a focus on how that research can be applied in the arbitration context. It also gives some practical tips for those responsible for gathering evidence that is particularly interesting to read in light of the new PD57AC.

The weight of the research shows that the memory of an honest witness who gives evidence can easily become distorted and can be less reliable than the witness, counsel or the tribunal expects. In particular, studies show that exposing witnesses to suggestive post-event information (such as during witness interviews) and phrasing questions in a leading way (even if done subtly) can distort memories. 

In the coming weeks, I will have the pleasure of hosting a podcast with Dr Robert Nash, Reader in Psychology at Aston University, to talk more about some of the science of memory and how it is relevant to litigators in light of the new Practice Direction 57AC. Dr Nash's research was featured heavily in the ICC Report and he is a real expert in the field. 

Until then, however, it's worth bearing in mind the practical tips set out in section V of the Report when conducting interviews with witnesses, which strike a similar tone to the Statement of Best Practice in the Appendix to PD57AC. Selected highlights from that section include the following:

• Put the witness at ease. Remind the witness that it is normal to have forgotten details and events and, if the witness does not remember, they should simply say so.
• Make questions unbiased and open-ended and review them in advance more than once to assure they are properly neutral.
• Similarly, use neutral language during the interview and avoid qualifying descriptors as these may influence the witness’ recall.
• Avoid giving feedback on the witness' answers, irrespective of whether that feedback may be negative or positive (e.g. avoid stating that you agree or disagree with the witness’ answers, or that the evidence/response given to the question conflicts with the pleaded case or is otherwise unhelpful to the party’s position).

If you ever have to work with disputed facts and the ICC Report has slipped under the radar, it is definitely worth reading.