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"Ah yes, I remember it well". The phenomenon of faulty memories in mediation and litigation

View profile for Jonathan Haydn-Williams
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“We met at nine”

“We met at eight”

“I was on time”

“No, you were late”

“Ah yes, I remember it well”.

Those lyrics from the 1958 film ‘Gigi’, encapsulate the experience of many mediators, litigators and judges, of parties and witnesses having conflicting, or even opposite, recollections of the same event.

As a mediator, when meeting parties in their separate rooms, one may hear one version of an event from one party and a diametrically opposing one from the other party. Yet, one feels that each is telling the truth as they recall it. Of course, as a mediator, one’s role is not to make a judgment on the accuracy of either recollection. The furthest one might go, confidentiality allowing, is to observe that, if the matter goes to court, the judge will have to make a decision between the conflicting accounts. If a recollection conflicts with documented evidence, one might point out gently that a court would be likely to prefer the document, whilst making it clear that, as mediator, one is not saying that the party’s recollection is anything other than genuine.

A judge has the different role of choosing which of the two versions of the event is to be preferred, on a balance of probabilities in civil matters, although she or he could reach a less binary conclusion, for example that neither has a good recollection or that there are elements of each that should be taken to be correct.

A judgment that one witness’s version is to be preferred over that of another can sometimes be understood, or misunderstood, as being a conclusion that the rejected version was a lie. That seems to have been the issue at the heart of a dispute, a couple of years ago, between a well known personality and a broadcaster, after a judge leading an enquiry preferred the evidence from other witnesses to that of the personality. The broadcaster sacked the personality as a result of the judge’s finding. The personality protested that, although his evidence had been rejected and was not supported by alleged documents from the time, he had given his genuine recollection of an event that had happened some 40 years ago. Subsequently, he was reinstated, though the reason for that is not publicly known.

A litigation lawyer tasked with taking a witness statement from a party or other witness may well encounter the issue at an earlier stage than a judge or mediator. I was (or, more accurately, remember being!) taught at law college that the lawyer’s role is not to write down the witness’s recollections without question, but to test them by reference to documents or other evidence, to the extent that if a client turns to the lawyer and says “Whose side are you on?”, the lawyer will know that he or she is doing the job properly. This reflects the fact that memories can be faulty and that the witness will be subjected to cross-examination in court, so that it is better to expose possible inaccuracies sooner rather than later.

However, it is well known to litigation lawyers in England and Wales that one must not ‘coach’ a witness. Hence, the questioning of memories has to be in the form of challenging the witness, rather than making suggestions to her or him of what the accurate position is or might be. The line between the two can sometimes be a fine one, so the questions need to be put in as neutral a way as possible. This is not because witnesses will usually be keen to lie in court, but because of the suggestibility of the human mind.

It may be helpful for lawyers, judges and mediators to have an outline understanding of how memory works - an ever developing part of neuroscience and psychology – so as to gain insight into why witness memory needs to be treated with caution (but without becoming a “barrack-room” psychologist or neuroscientist - to adopt the term used by lawyers to describe non-lawyers who have not paid heed to the saying that a little knowledge can be a dangerous thing).

Based on my limited reading, I offer the following, but please do not take it as necessarily correct or, for sure, complete:

When we experience an event, most of us have brains which are selective about what we perceive, otherwise they would be overloaded with detail. Most of the perception will be discarded from short term memory at once, unless there is something unusual about it or something that engages our feelings, in which case it may transfer to long term memory.

Memory is not a video, stored in any ‘hard disc’ type structure in our brains, which can be played to order and will be the same every time we play it.

When we experience an event which our brain chooses to remember, an ‘episodic’ memory of it is transferred from short term into long term memory, possibly comprising the strengthening of links between some of the massive number (maybe 100 billion) of neurons (brain cells) we each have, perhaps with different fragments of the memory being stored in different parts of our brains.

When a memory is triggered, we re-assemble the memory and have some sense of experiencing again the visual images, sounds and even smells and touch. But due to cognitive biases, such as wanting to believe the best of ourselves, or suggestibility (“are you sure that the jumper was blue and not red?”), our recollection may change and it is that changed version that is returned to long term memory. 

The next time we recall the memory, what we remember is what we returned to our long term memory on the last occasion. Hence, like a game of Chinese whispers, the memory we end up with years later may be very different from what we recalled on the first occasion: which is why contemporaneous notes and records are so important in litigation.

According to ‘New Scientist’ (27 October 2018) “Rather than existing in the filing cabinet of the brain, we conjure memories from scratch” and “memory, it turns out in an illusion – one we create every time we recall the past”.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.