Previously, I have explained how to be a good witness and how to ask good questions in court and cross-examine like an expert. All court proceedings depend on evidence. Often the outcome of a trial depends on the quality of the evidence presented at trial. As the eminent legal blogger David Allen Green pointed out this week (in an article about the virtual pointlessness of law degrees), the actual law is usually secondary to the evidential battle fought out in trial. Many people lose trials that they should have won because they relied on the fact that they knew that they were in the right and arrogantly expected everyone hearing their case to share the same belief system. Good quality evidence proves cases to those hearing it for the first time, be they strangers or friends, witnesses or advocates, casual observers or judges.
Keep an eye on the court
Many people imagine their particular disaster or dispute will never make it into court. Consequently, they don’t bother to collect any evidence until long after the event they are in court arguing about. Although it can appear tedious and possibly confrontational to the novice, the trick is to confidently live as if any form of dispute could end up in court with you on the winning side. Therefore, whatever the nature of the contention, gather your evidence as if you are going to court. Very often, the mere fact you did this will dissuade the other side from litigation because you will have good quality evidence and they will not. A little bit of effort now will save plenty of time later.
The power of writing
Odd that our culture, so heavily dependent on the written word, revolves around telephone conversations for much negotiation. Sometimes it appears as if we are frightened of power of words, as if their success is a spell cast by a wizard. Of course, we use the telephone because we like to chat with one another personally but it lacks the advantage of a clear record of that talk. Recording every call is infeasible, partly due to the cost, partly due to the impracticalities of searching through the recordings afterwards and partly because it is illegal without permission (which is why in the UK big corporations are constantly warning you that your call may be recorded).
If you want to rely on a particular conversation afterwards, for example it could be the one where you agreed a contract, you will go a long way to proving your version of events if you swiftly transcribe it. The classic technique is to put the crucial parts into a letter and then send that letter to the other party, asking them to agree it. If they do, then you have your evidence in the bag for the future. If don’t reply, you can show that at least you recorded the deal and they didn’t trouble themselves with correcting your version of it.
Diary writing is deeply unfashionable outside the blogosphere these days. Gone is the time when everyone set aside some part of a week to put their thoughts on paper. However, judges love diaries because they date stamp events and are handwritten. Someone can turn up in court with a handwritten diary and say that they wrote a particular entry on a particular date. Assuming that this example witness’s general credibility is intact, this will usually be very persuasive evidence. The biggest problems with understanding someone else’s court case (which is what a judge has to do) are usually concerned with chronology. This is because our personal lives are governed by Aristotelian logic: I did this because she had already done that. One event leads to another. Sorting out the sequence of events is therefore crucial. We tend to muddle the order of events or just fail to record them properly. The very purpose of a diary is to establish the chronological sequence of events. Your courtroom opponent might claim that you have tampered with the provenance of the diary. That issue can be resolved by a mutually agreed expert witness. Pen and ink has a permanency which digital media does not.
The Times newspaper technique
If you are not a diary writer and it isn’t appropriate to write a letter to someone with your version of events, you can sometimes establish that a particular state of affairs was extant on a particular day by photographing the scene with a copy of the Times newspaper in view. You could use any newspaper but judges do tend to read the Times because they are under the mistaken belief that the law reports in there are of a certain quality. Perhaps they are these days. Certainly when I was a freelance law reporter it was blatantly obvious that much of the Times legendary archive of law reports was populated with mistaken reports which very frequently missed the main point of a case altogether. However, I digress. The fact is that the judges read the Times because judges have always read the Times and continue to do so, especially now that the News of the World has been closed down.
Put the Times somewhere in the scene and photograph it so that the front page headline is visible. Keep the newspaper. Later on you will be able to easily establish that you took that photograph on the date that the newspaper was published. Simple! If you really baulk at buying the Times (I do), you can use any newspaper but it is probably best to avoid buying the Guardian not because it is a left-wing scandal rag but because you may appear to be a woolly supporter of the Liberal Democrats whose grip on the factual matrix of basic events will be weak. I am joking, of course. Buy whatever paper you want but preferably the Times.
Evidence must be disclosed before trial
You received a crucial confession from someone via a text message. It screws their case by undermining their own evidence to the point where you will simply win. You turn up in court with your phone, having lovingly preserved the old message. More than likely you will find that the court refuses to look at your phone at all! This is because, contrary to films, literature and TV, as a rule you cannot rely on evidence which you have not already disclosed to the other side first. There are some exceptions, notably when you face some new claim arises live and direct in cross-examination by one of your opponent’s witnesses, but on the whole you cannot just swan into court with evidence which has not been disclosed. Since you cannot make copies of the phone’s text message in the way that you can photocopy a piece of paper, this evidence does not lend itself to disclosure. Of course, if you were using an android phone you could have set up your SMS backup service with Google, enabling you to simply print a few copies of the message. For those of you without this system at hand, you will have to follow to basic steps. Firstly, invite the other side to agree in writing that a certain message was sent at a certain time. If they agree then you can rely on that evidence. If they do not, then you can take your phone to an IT expert and ask them to analyse the contents of the phone with particular regard to that text message. You should warn the other side that you intend to do that and invite them to approve the expert whom you will be using. Use a completely neutral expert. There are various expert witness directories to find them in.
Collate your evidence when it comes into being. Leaving it distributed around a series of locations (your home computer, your work computer, your phone, your bookshelves) runs the risk that you will have lost or mislaid some crucial item and only discover it is missing when you are already in court. Some years ago the mobile telephone company O2 unexpectedly changed their tariff so that suddenly I was being charged to make calls to numbers beginning with 08. I changed phone companies, refused to pay the bill (because this had been a crucial part of the original contract, so far as I was concerned) and offered them a deal to kill the dispute on payment by me of £1. They cashed that cheque and continued to pursue me for the money, through a series of increasingly desperate (or menacing if you’re unfamiliar with these things) debt collectors. The limitation period for them to take me to court has long since passed but still the letters come. I file them all in a special box file, which also contains the original letters I sent with the offer to settle the matter. All told this correspondence proves that they have taken £1 off my debt shortly after the date of my letter containing my offer to settle. One of these days, I’ll take O2 to court for a declaration that I do not owe them any money. I’m not in a rush to do it but sooner or later, I’ll get around to it. When I do, it will be simple because I have kept all the relevant paperwork in one place. All too often people do not collate their evidence at an early stage and then, as the dispute rumbles on, they realise that they cannot prove what they say with the result that they cannot stand up for their side of the story.
Recollection and reconstruction
If you witness something, write an account of it immediately or as soon as you can. Include as much detail as you can. You can always remove it later. Get your account into printed form, date and sign it. This shows that you ‘gave’ this account when the events you are describing were fresh in your recollection. Although vastly speeded up, litigation still takes a long time. Given a choice between two conflicting accounts of an incident, a judge will prefer the account which was contemporaneous to the incident.
Humans always reconstruct events afterwards. Doubtless a psychologist will have a clever explanation why but I prefer the simplicity of accepting that most of us are selfish animals who prefer to regard ourselves as being in the right. When something goes wrong, we prefer other people to have wronged us rather than take the blame ourselves. This phenomenon is well recognised judicially. The longer the time between an event and an account being given of it, the more opportunity there is for recollection. I have lost track of the number of times I saw a witness being flabbergasted by suddenly being confronted with his own contemporaneous sketch of a road traffic accident, which told a different story to the lie he was spinning at court. Their surprise was genuine, their deceit unconscious. They didn’t bother to actually look at the tiny sketches they had drawn on their insurance forms.
Never write anything on any original documents. Always copy everything. If you want to prove that you made a certain payment, photocopy your bank statement, and on the photocopy black out any personal information you do not want to reveal publicly (for example, your address, your account number, your purchases at a pornographic video store etc.,). Then photocopy the altered copy for disclosure to the other side. This rule applies to all documentation.
Chances are that you do not record your telephone calls. I don’t either (at least not routinely) although I often claim that I do – I find that bucks up the attitude of the person at the other end of the phone and I tend to get better service. Your telephone company will be able to send you a bill which lists every call you make. Therefore, you can use this as evidence to show that you called a certain number at a certain time. You can combine this with your transcribed account of the call.
Blog posts and tweets
Please note that I haven’t included Facebook in the subtitle above. Facebook and other social networks differ from blogs and twitter because they are fundamentally private to the people involved. A judge cannot see what is written there or when it was written, unless he is friends with the author in which case he cannot be the judge in the case!
Blogs are public affairs. However, although the content on them can and is used as evidence in court, the date and time of the content cannot be described as hard evidence. This is because it is so easy to change the timestamp on any one blog post. As with much of the rest of the disorganised blogosphere, I am writing this post on a Sunday morning, hurriedly typing and hoping to hit the publish button sooner rather than later but I have scheduled some posts for publication next week. A WordPress blogger can alter the publication date of any post at any time to any time.
Twitter is an excellent time stamper. It is public so a judge can look at any tweet and so can anyone else, which makes discovery of documentation easy. It is not managed by the tweeter in question, so he cannot alter the date of any particular tweet. Twitterers can delete tweets and post similar or identical ones later on but they cannot precisely choose the time of publication themselves. It is either now or never. This means that if you tweet that something has just happened to you, you have succesfully time stamped the event.
Other people’s evidence
If there are other witnesses, you should persuade them to follow the guidance above so that their evidence is also date and time stamped, contemporaneous and free from reconstruction. You should avoid helping them do this in case it looks like you have interfered with their evidence. Barristers find it easy to unpick collusion over evidence. We can spot it a mile away due to certain clues. I’m not going to reveal the clues here – that would only help you cheat!