The following is an extract form a 15 pages note about ‘Advocacy in Contentious Probate Cases’ that I am currently writing for inclusion in the Litigation chapter of the 2nd Edition of the Contentious Probate Handbook, which I am writing for publication by the Law Society.
‘A
Contentious Probate case will be proved by the documents and witnesses, not by
the advocate. The advocates will later argue over whether the witnesses have
succeeded against the burden and standard of proof.
‘In Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013]
EWHC 3560 (Comm), later cited in Rainey v Weller &
Ors [2021] (a Will forgery claim),Mr Justice Leggatt set out the
difficulties of recollection based oral evidence, and the importance of
documentary evidence. “An obvious difficulty which affects allegations and
oral evidence based on recollection of events which occurred several years ago
is the unreliability of human memory. While everyone knows that memory is
fallible, I do not believe that the legal system has sufficiently absorbed the
lessons of a century of psychological research into the nature of memory and
the unreliability of eyewitness testimony. One of the most important lessons of
such research is that in everyday life we are not aware of the extent to which
our own and other people’s memories are unreliable and believe our memories to
be more faithful than they are. Two common (and related) errors are to suppose:
(1) that the stronger and more vivid is our feeling or experience of
recollection, the more likely the recollection is to be accurate; and (2) that
the more confident another person is in their recollection, the more likely
their recollection is to be accurate. … Considerable interference with memory
is also introduced in civil litigation by the procedure of preparing for
trial. A witness is asked to make a statement, often (as in the present
case) when a long time has already elapsed since the relevant events. The
statement is usually drafted for the witness by a lawyer who is inevitably
conscious of the significance for the issues in the case of what the witness
does nor does not say. The statement is made after the witness’s memory has
been “refreshed” by reading documents. The documents considered often include
statements of case and other argumentative material as well as documents which
the witness did not see at the time or which came into existence after the events
which he or she is being asked to recall. The statement may go through several
iterations before it is finalised. Then, usually months later, the witness will
be asked to re-read his or her statement and review documents again before
giving evidence in court. The effect of this process is to establish in the
mind of the witness the matters recorded in his or her own statement and other
written material, whether they be true or false, and to cause the witness’s
memory of events to be based increasingly on this material and later
interpretations of it rather than on the original experience of the events.”
While an advocate cannot win a case using logic alone, assisting
the judge to make findings of fact based upon inferences drawn from the
documentary evidence and known or probable facts, is the metier of advocacy in contentious probate trials,
and an essential technique in drafting a Skeleton Argument, and delivering a
compelling final speech at trial.