Lawyers: do not write this down

When taking instructions from clients, or a statement from witnesses, lawyers typically reduce the cluttered and disordered social world of that client or witness to a neat, well contained and legally relevant narrative.  Often that narrative will fit with the lawyers’ initial legal diagnosis or, with witnesses, the line of argument that best suits the client’s case.  In criminal cases, prosecution witness statements are a crucial part of any decision on whether to plead and how to defend cases.

Against that background, I read of this research with interest. It raises interesting questions about the extent to which the legal system relies on the written recording of factual information both formally (through evidence) and informally.  Here’s the abstract:

The aim of the current study was to test whether the modality of testing (written vs. spoken) matters when obtaining eyewitness statements. Writing puts higher demands on working memory than speaking because writing is slower, less practiced, and associated with the activation of graphemic representations for spelling words (Kellogg, 2007). Therefore, we hypothesized that witnesses’ spoken reports should elicit more details than written ones. Participants (N = 192) watched a staged crime video and then gave a spoken or written description of the course of action and the perpetrator. As expected, spoken crime and perpetrator descriptions contained more details than written ones, although there was no difference in accuracy. However, the most critical (central) crime and perpetrator information was both more extensive and more accurate when witnesses gave spoken descriptions. In addition to cognitive factors, social factors are considered which may drive the effect.

The research is more directly relevant to the situation where a witness is asked to write down their statement for a lawyer to consider.  Increasingly, personal injury cases are questionnaire driven.  Clients (and witnesses) write down the facts, lawyers base their case handling on those facts.  They may or may not be accurate.  Those ‘facts’ will set the agenda for any future work (and of course that might mean checking things orally with the client).  It is efficient, or cheap at least, but is it accurate?  Are the inaccuracies sufficient to cause us concern?  The detailed research presents a more complex picture about when oral recall is better than written, so the answer is not straightforward, but it is something worth thinking about.

It also raises the interesting issue of how lawyers should manage evidence and instruction taking.  Problems of premature diagnosis might suggest that audio recordings of some evidence might be appropriate, especially in complex fact situations.  A more difficult, but interesting issue, is whether the exchange of written evidence (one of the signatures of the Woolf reforms) might (sometimes? always?) be replaced by oral statements.  There is a great deal of mistrust in the current system and the malleability of written evidence may be one reason for that.  Cost and the desire to protect less eloquent clients’ oral evidence from unfair scrutiny would be reasons to doubt the suggestion, but given the trial’s oral tradition there might be some merit in lawyer’s putting down their pens and picking up a microphone.

 

— Very interesting postscript from Richard Zorza with IT angle (Access to Justice, Litigant in Person peops should follow his blog)