Reflections by the Senior Law Lord on the topics of whether disclosure is worth the effort and the difficulties of judging the credibility of witnesses.
‘9. After seven years as a trial judge, I found myself having the rather heretical view as to the ways in which litigation costs could be reduced. It seemed to me that the value of the expensive and well-established practices of disclosure of documents and of cross examination of witnesses was highly questionable. I am very sceptical about the notion that many cases are decided by a “smoking gun” found on the often enormously time consuming and expensive exercise of disclosure and inspection of documents. Of course, any lawyer will point to one or two such cases in which he or she was involved. However,
(i) I suspect most of those cases would have been decided the same way and more cheaply without disclosure,
(ii) further down the litigation road, apparently smoking guns frequently turn out not be smoking or even guns, and
(iii) I question whether the odd case where full disclosure really has made all the difference justifies the pointless expenditure in the countless other cases where it makes no difference. ‘
’10. As for cross-examination, most of the best points that emerge from questioning can be made much more shortly in argument. I am very sceptical about judges relying on their impression of a witness, or even on how the witness deals with questions. Honest people, especially in the unfamiliar and artificial setting of a trial, will often be uncomfortable, evasive, inaccurate, combative, or, maybe even worse, compliant. And our assessments of people are inevitably based on our particular experiences and subconscious biases. Sometimes it might appear that factual disputes are being resolved by reference to who calls the best-performing witness, not who calls the more honest witnesses. Indeed, there is an argument for saying that, at least in some cases, it is safer to assess the evidence without the complicating factor of oral testimony.
11. Of course, both these points are based on impression and experience, and at best on anecdotal material, whereas in the present world of evidence-based assessments, one would hope for a statistically reliable analysis. I suspect that it would be hard to devise a practically feasible experiment which could convincingly establish whether my impressions about the value of disclosure and cross-examination are correct. But it might be interesting to try and devise an experiment, and it would be fascinating to see the results. ‘
Formatted for ease of reading.