Curb Your Enthusiasm

Our Prime Minister got into recent trouble by answering a straightforward question with direct answer. When asked if he would seek a third term in office, he said “No.” Instead of celebrating the unusual situation of a politician giving an unequivocal answer, friend and foe alike heaped opprobrium on him.

More galling were the efforts of those supporters trying to convince the public that David Cameron was saying something different or, at least, nuanced. This form of post event revision – “spin” – is the last line of defence for those who “misspeak.” Watch out for more examples of misspeaking as the election campaign unfolds.

Leaving aside what such behaviour says about the increasingly scabrous body politic, spin seeps into every part of our lives. As lawyers, we are used to putting the best case for our client. We are, amongst a number of things their advocate. In submitting evidence; most particularly witness statements; we must resist spin.

The temptation to spin (to protect sensibilities, we might call it “finesse”) a witness statement has always been there. Rumpole occasionally observes that the police have been “gingering up the verbals” to improve the prosecution’s case, usually with the opposite effect. I have seen witness statements that give the impression of a witness speaking with the enunciation of a BBC continuity announcer, only to be confronted by someone who talks like “a bit of a geezer”.

Some argue that such finessing is acting in our client’s best interests, which – for solicitors – is one of the Principles that underpin our code. It is presenting our client’s case in the best way. There is however another line that we must not cross; another principle that we should never forget. We are to uphold the administration of justice and the rule of law.

Mr Justice Peter Smith reminded lawyers in A & E Television Networks LLC and anor v Discovery Communications Europe Limited that:

“This case demonstrates the need for solicitors preparing witness statements to curb their enthusiasm in seeking to obtain the best for their clients. It must not be forgotten that witness statements are merely a replacement for evidence, which a witness previously used to give live in chief. It is intended to be the factual evidence of the witness in his own words. Too often witness statements are drafted by solicitors who put words in their mouth to achieve a better result.”

So next time you feel the need to polish up the CEO’s witness statement, just take a step back. Inserting the odd “H”, reducing the Estuary English and improving the punctuation may be within limits, but not when it changes the sense of what they say. Don’t call a “spade” a “spade”, if they say “shovel”. They are not your words or your evidence.

Remember your duty to the Court, even if (in your mind) your client sounds like they are from the cast of “Eastenders”. It is patronsing and wrong. Changing the sense may prejudice the case. You can end you up in front of the regulator. Do your duty wisely and do not be blinded by loyalty to your employer. Exercising our duty to our client as well as to the Court is a balancing act, which we are called upon to perform. It s why we retain professional status.

Let the politicians spin. It’s only for another month.


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