2021iii31, Wednesday: Questions, questions.

Short thought: I’ve written before about the problem of malleable memory, and the fact that from 6 April onwards witness statements for commercial trials will need - explicitly - to take that into account. (That’s thanks to Practice Direction 57AC, for nerds like me.)

It’s how litigators will need to do that which I find interesting. And it gives rise to a concern: do lawyers still know how to ask questions?

Simply in posing the question, it sounds ludicrous. I’m a barrister. Asking people stuff is what we do, isn’t it?

Well… up to a point.

Here’s the problem. PD57AC says commercial trial witness statements have to be in the witness’s own words, as far as possible. They need to be made with reference to documents only where it’s essential. They need to be limited to witnesses’ own experience and recollection.

And - critically, for the purpose of this post - they need to be made through a litigator interviewing the witness:

• As far as possible without asking leading questions, and definitely not when covering the really critical and contentious areas;
• Sticking to open questions; and
• “Recorded as fully and accurately as possible, by contemporaneous note or other durable record, dated and retained by the legal representatives.”

This is the point at which barristers who spend their time on crime and family matters laugh to the point of nearly passing out. They're the ones for whom examination-in-chief, where you tease out your own witnesses’ stories one open question at a time, is a daily stock in trade.

But for civil practitioners, who’ve only ever asked a handful of open questions in supplementaries or re-examination and otherwise spend their lives cross-examining, this is baffling; a dimly-lit throwback to half-remembered advocacy classes in Bar school. I suspect it may be even tougher for solicitors, for whom this kind of questioning has never been exactly a core job skill.

Because let’s be honest. Drafting witness statements doesn’t happen as described above. Leaving aside the habit (which the Practice Direction makes clear it deplores) of using witness statements as a sort of pre-skeleton, full of argument and comment on documents and citation of authorities, even a straightforward narrative is (more often than most would care to admit) drafted by a solicitor from the documents, and then signed off by the client. And in particular the process of honing the draft to finality bears very little resemblance to what the Statement of Best Practice appended to the Practice Direction starkly requires: that it be

done by non-leading questions for the witness to answer in their own words, and not by proposing content for approval, amendment or rejection by the witness.

Like my crime friends, this doesn’t bother me. I’m fortunate that a decade as a reporter and another decade as an investigator has left me entirely comfortable with open questioning: letting a witness tell their tale in their own time and words, looping back into points of particular interest with more focused (but still open) enquiries and then expanding the view back to wide-angle as the need arises.

I do recognise this isn’t normal for many people - and I suspect some may struggle. Not because they’re anything other than fantastic at their jobs. But because this is hard. It takes focus, and time, and a lot of practice. Anyone who remembers Bar school will recall early struggles to master questioning styles, and the frustration of being unable to sustain a coherent line of enquiry without slipping into yes/no or leading the witness.

So if the Courts take this change seriously - and judges already punish witness statement malefactors with costs sanctions - we’re going to have to change our ways.

Here’s a final irony. There’s actually a group of people who are rather good at this. They’re called police officers. Not all of them, of course. But UK police recognised long ago that interviewing where you actually wanted to find out what happened, rather than seeking to satisfice by getting just enough to stand up the case against the person you just know done it, is a tricky and technical business. Starting with the PEACE method and moving onto cognitive interviewing, the best police interviewers are examples of what the Practice Direction requires. We lawyers could do worse than to ask them for help.

(Footnote: I had the jab yesterday. And as a result I’m feeling somewhat under the weather - headache, shivers, temperature. Nothing major, but I apologise in advance if Friday’s piece ends up just being a linkfest.)