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.