![]() The nature of litigation is such that witnesses often have a stake in a particular version of events. The process of civil litigation itself subjects the memories of witnesses to powerful biases. ![]() In dealing with the reliability of memory, the judge stated: “16…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.” He later went on: “19. His assessment of the evidence was very dependent upon the recollection of witnesses. In a trial that took place in 2013, Leggatt J was considering events that took place in July 2005 to July 2006. In considering the evidence of those who were with the Claimant on the day of the accident, the Defendant invites me to have regard to the comments of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd EWHC 3560. That is potentially significant because, at paragraph 7 of his statement, Mr Hirst describes reviewing the CCTV footage, stating that “The Claimant looked really drunk in the footage.” However, I am as well placed as Mr Hirst to judge what can be seen on the footage and I take no regard of the opinion of lay witnesses (be it Mr Hirst or any of the witnesses called by the Claimant) in assessing that evidence. Mr Kennedy QC for the Defendant made the point that, in so far as Mr Hirst’s statement was put in evidence by the Claimant, the whole of the statement had to be considered. THE GESTMIN POINT The judge was, expressly, asked to consider the Gestmin factors by leading counsel for the defendant. There were issues as to the cause of the fall and how much alcohol the claimant had drunk beforehand. ![]() The claimant was seriously injured when he fell down the stairs of a bar. In AB -v- Pro-Nation Limited EWHC 1022 (QB) HH Judge Pearce (sitting as a High Court judge) considered Gestmin in the context of a personal injury case. It has been adopted in many cases since, outside the realm of commercial litigation. However in my view there is a pressing need for litigators to know the “Gestmin approach”. Gestmin is the case where Mr Justice Leggatt set out a number of key issues to be considered in relation to witness credibility. I was worried that the enthusiasm could be waning waning when I took them, in some detail, through the judgment in Gestmin SGPS -v- Credit Suisse (UK) Ltd EWHC 3560. ![]() Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed to practice in the appropriate jurisdiction where the legal issue may be filed or in the state where the law applies.I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. The statement is subject to being attacked as not credible due to diminished capacity from alcohol consumption. If she appears at trial as a witness, then the officer can offer the statement into evidence. He can also testify to anything that the defendant said while he was there as long as the statement was not the result of custodial interrogation without being Mirandized (read his rights). The police officer would still be able to testify to anything that he personally observed during his investigation. If she is not appearing at trial, then the statemet is hearsay, and not admissible. The police can offer the statement into evidence at trial if his girlfriend is going to appear at trial as a witness.
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