Popular law

In July 2011 I set myself the rather ambitious task of writing a series of posts under the heading of “Popular Law”.  I thought that if Professors Brian Cox and Jim Al-Khalili can present  popular science, I can present popular law.

As I write this, on 17 October 2011, the first post is being prepared.  It will be on unfair dismissal.

Being a series of blog posts, the popular law posts will not be a text book.  My idea is to try to get to the point of the area of law, what the key principles are.  In all likelihood each post will raise a number of questions in the minds of some readers.  I will be happy to deal with these through the comments.

And please remember.  No post here can be a substitute for full legal advice, given by someone who has been told all the facts and who has been shown all the documents.  Please see my legal disclaimer.

You’ve heard of Popular Science – now “Popular Law”

Following a short discussion last week on twitter, I have decided to write a series of posts on “popular law”.  You know, trying to explain some areas of law simply and clearly.  If Brian Cox can do it for quantum physics, I can do it for some areas of law!

So, from time to time I will write posts tagged as “popular law”.  If you would like to suggest a subject, please do so leaving a comment below.  If need be, I will research the area myself or will find a guest poster to write about the subject.

I think the first post will cover unfair dismissal.

Zen and the art of dispute resolution

 “It is said that if you know your enemies and know yourself, you will not be imperiled in a hundred battles; if you do not know your enemies but do know yourself, you will win one and lose one; if you do not know your enemies nor yourself, you will be imperiled in every single battle.”

Sun Tsu, “The Art of War”

A friend sent me this quotation, asking whether it applies to what I do. I think it does. Litigation has, after all, been described as a form of warfare.  Let me add another well-known military-related quotation into the discussion, this time by Donald Rumsfeld, former US Secretary of Defense:

 “There are known knowns; there are things we know we know.  We also know there are known unknowns; that is to say we know there are some things we do not know.  But there are also unknown unknowns – the ones we don’t know we don’t know.”

 In any dispute resolution process there are essential stages of gathering information. These are a necessary part of the process of knowing the opponent, of making the unknowns known.

We start off with a written statement of the Claimant’s case, to which the Defendant responds in a written Defence.  Acting for a Claimant I will evaluate the Defence in the light of the information that is available to my client and me.  I may ask questions for clarification of the Defence.

As a dispute resolution solicitor I press my clients to give me all relevant documents, which very often include e-mails and other electronic documents. I go through these to achieve a full understanding of what happened as shown in my client’s records.

 Court procedures require reciprocal disclosure of documents with the opposing party. At this stage I can see the opponent’s documents and the opponent can see my client’s documents.  There are then similar requirements to exchange other evidence including witness statements and experts’ reports.

These processes should mean that by the time the final decision is taken whether to commit to trial my client and I will have a very full understanding not just of my client’s case and supporting evidence, but also of the opponent’s case and supporting evidence. This should mean that we have a clear understanding of the strengths and weaknesses of the case on both sides. My client and I should know the chances of success. We should also have an understanding of how my client might lose the case.  This knowledge will inform the key final decision to fight or settle.

This is an analysis that should be repeated regularly throughout the course of a case, and particularly where new information or evidence becomes available including as a result of the formal steps in the litigation process. Coupled with the cost, the increasing knowledge of both sides of the case is a reason why so many cases settle before going into trial.

Before trial, there may still remain “unknown unknowns”. Things can come out at trial that are a complete surprise, possibly to everyone on both sides. This is one aspect of what lawyers call “litigation risk”.  I still shudder to remember a case more than 20 years ago where the other side produced at trial a photograph placing one of my client’s key witnesses at a meeting with people he had steadfastly denied that he had ever met. There he was, on a yacht, wearing a flowery shirt and clinking glasses of champagne!

If the decision is taken to go into trial, it should be a decision that is taken by the client and his lawyers knowing both his enemy and himself. Or, as Mr Rumsfeld might put it, as a result of coming to know what the “known unknowns” are and minimising the areas of risk and possible unpleasant surprises of the “unknown unknowns”.

hampshire lawyer at work

This is one of the photos taken by Grantly Lynch when he did the shoot for the video. Grantly wanted us all to be working as normal, which is exactly what I was doing.

Grantly took this photo through the glass partition to my office.  In the left hand side of the image, you can see Ann’s head reflected in the glass – Ann is Graeme’s PA.

I use a headset for the telephone so that I can have hands free to shuffle papers, take notes etc. Also, for some reason I am one of those people who tangles those coiled telephone cables into a mess, no matter how hard I try not to.

See Grantly’s full blog post here.

video for Graeme Quar & Co website

Last week Grantly Lynch came into the office.  He took over 1500 still photographs, which he stitched together to create this stop motion effect video for the firm’s website www.quar.co.uk.  You will see me walking into the office with Graeme Quar.  We were discussing Manchester United’s prospects against Barcelona.  Graeme is smiling: he’s a City fan.

The music is The Walk (Infustian Mix) by The Cure.

The unanswerable case answered

I have just come across this quotation. So very, very true.

Megarry J in John v Rees [1970] 1 Ch 345, 402, said:

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

It’s just his word against mine, right?

Quite often in civil litigation there is a direct conflict of evidence. Two different people say different things about the same event. When that happens I am often asked how a judge is going to “decide who is telling the truth”, or, as we lawyers like to put it, how the judge will resolve that conflict of evidence.

In civil proceedings the task of the judge is to decide the facts of the case on the balance of probabilities. That is, he must decide which is more likely to be the true position.

Of course the judge was not there. He does not know the absolute truth. He has to decide the facts of the case on the basis of the evidence before him. So how does the judge do this when the witness statements indicate that on some key facts it is one person’s word against another’s?

This is why I always tell clients that we need to look for corroboration. Is there some other piece of evidence that will support what the client is saying on this question? This could be some other witness, although courts will be reluctant simply to play a numbers game of I have 3 witnesses against your 2 . The best corroboration comes in the form of a credible document: a letter or an e-mail or an order form, or indeed any other document, which supports what my client says. We can then tell the court that it must be more likely that our client is to be believed on the particular question, because the other evidence supports him on the point.

I have decided to make this the subject of this blog post because earlier this week the Court of Appeal handed down a decision in which it discussed this point. It may therefore be helpful to see what Lady Justice Arden said in the Court of Appeal.

First of all, in deciding whose evidence to accept, Lady Justice Arden said the trial judge will consider how a witness behaves in giving evidence, including factors such as body language and tone of voice.

Beyond that, the judge will want to see what other evidence is available to support the witness. This would usually be documentary, but could be other oral evidence. This may be particularly important where the witness is from a culture with which the judge is unfamiliar.

Lady Justice Arden went on to say “Contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent.” What this last point means is that, if the judge is satisfied that if what one party says is right there should have been a document to prove it, but that no such document has been produced by that party, the judge may be able to reach conclusions from its absence.

Where witness A says that witness B is lying, A’s barrister should directly challenge B so that he can respond to the accusation. This did not happen in the particular case, leading Lady Justice Arden to so say that while a judge should not find that evidence was given in bad faith or was false if the witness was not given the opportunity to deal with those points, the judge can still decide how much weight to give the evidence and may prefer other conflicting evidence, particularly if there is corroboration of that other evidence.

So, the answer to the the point “It’s just his word against mine, isn’t it?” is: No, not if there are documents or other evidence on the point.

Case: Re Mumtaz Properties Ltd [2011] EWCA Civ 610 (24 May 2011).