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Art of persuasion in court

Posted by Carl Islam on LinkedIn 10.09.2021 (www.ihtbar.com)

‘The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.’ Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013, applied in Rainey v Weller & Ors [2021] – a Will forgery claim (see below).

Therefore, in a contentious probate case and thinking like a judge, to assist the court and as part of elementary case-preparation, counsel should draft a Chronology after reading the papers, i.e., before connecting the dots, in order to arrive at an overall conclusion based upon inferences drawn from the documentary evidence and known or probable facts.

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.

To see the big picture as early as possible, apply Keith Evans’ original golden rule of case preparation and planning, which is:

  1. As soon as you have an approximate idea of what a new case is about, sit down and write your ideal final speech. Then read it. See how well the available evidence supports it. At once you will see the gaps, the missing bits. Trying to close those gaps is the preparation of your case.
  2. When you think you are getting close sit down and write your opponent’s final speech. This will concentrate your focus more sharply on what you still need to do by way of preparation and on the weak points you will have to reach and deal with before anybody else does.
  3. Perfect your final speech – This is the blueprint of your trial. It becomes a record of your progress through the case, a shopping list of all you have to do, a fool proof checklist. The evidence you need and the way you need to present it stares straight at you from this final plan.

[The] purpose of doing the closing speech when you receive the brief is it lights up precisely what you want from each witness. Your closing speech is what you want to be able to say to the [judge]. It is a mixture of comment and reference to the evidence. Once you know what you want to say to the [judge], you will know what evidence you will seek from the witnesses. Once you know what comments you want to be able to make to the [judge] at the end of the trial based on that evidence, it is easy to work out precisely what you want from each witness. So, in preparing the closing speech, you find the natural consequence is that instinctively you prepare your examination of the witnesses… you know what you would like them to say, and can gear your preparation towards thinking about exactly how you will get them to say it… [so that you can] elicit from each witness only what you need for the closing speech… The closing speech is your map. It tells you where you are going, what you have to do, where you have been, and where you have to get to. It tells you everything you will want to do at trial… [From] your closing speech, you identify the comment you want to make. From the comment you want to make, you identify the facts you want to hear. From the facts you want to hear, you identify the questions you want to ask and of whom.’ [‘The Devil’s Advocate’ by Iain Morley QC].

Another useful technique to focus your mind, is as early you can, to draft the order you will seek at the end of the trial.

Recently, in Rainey v Weller & Ors [2021] EWHC 2206 (Ch) (05 August 2021), Deputy Master Linwood stated;

[Counsel] cited, as to the burden of proof, Face v Cunningham [2020] EWHC 3119 (Ch) where His Honour Judge Hodge QC sitting as a Judge of the High Court at [46] said: “…where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will, as part of the formal requirements of proving that the will was duly executed by the testator and was duly witnessed.” It is therefore for the Defendants to establish, on the balance of probabilities, that the signature of [the deceased Testator] on the [disputed] Will was genuine. In closing submissions I said to [Counsel] and the Defendants that in my approach to the evidence I would very much have in mind the well-known paragraphs 15-22 in Guestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) where Mr Justice Leggatt as he then was set out the difficulties of recollection based oral evidence, and the importance of documentary evidence.’

In Guestmin Mr Justice Leggat (as he then was) stated;

‘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.

Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

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.

It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’

In Rainey v Weller & Ors [2021], the judge accepted the expert evidence of the Claimant’s handwriting expert, observing that the expert:

‘expresses a more positive view on the scale they both worked to that the signature on the [disputed] Will was not that of [the deceased Testator]. Thirdly, but at the very bottom of my scale of expert witness factors/considerations, is that [‘C’s expert] just edges [‘D’s expert] in his credentials, although I place very little weight upon that. … The totality of [his expert] evidence is unassailable in my judgment.’

In finding that the disputed will was a forgery the Judge made findings of fact based upon inferences drawn from the documentary evidence and known or probable facts, which included:

  • i) It is highly improbable, indeed verging on the impossible, in the circumstances I have set out above that [the deceased Testator] decided in the very short gap between the 9th February – 5th March to wholly change her will – she knew her own mind;
  • ii) In particular there was no change of circumstances or intervening event as I have found above;
  • iii) Likewise, it would not make sense that, had she so decided, she would not go back to the solicitors, with whom she was still in contact as they were finalising the LPA, to make any new will;
  • iv) The [disputed] Will was not mentioned by [D.1] … to anyone. That appears unlikely if it had been made as [D.1] says as his sons … were living with him at all material times;
  • v) When his mother died [D.1] did not immediately produce the [disputed] Will. In oral evidence he said he could not remember where he had put it, and eventually found it in his loft. That I find unbelievable in circumstances where the natural reaction would be to keep one’s mother’s will close but safe and to produce it immediately upon her death;
  • vi) [D.1] had in his control the evidence as to from where he obtained the template for the [disputed] Will that he said he used; he never produced it;
  • vii) Likewise, as I observed at the start of trial, I was surprised no metadata was obtained from [D.1’s] laptop/PC to show exactly when he prepared it and how or from what, although as I said it was also open to [C’s] solicitors to apply for it had they appreciated that;
  • viii) [D.1] provided to his expert the Cards which he had access to as he took control of his mother’s house and effects including her papers after her death. [C] said in evidence and I accept that [T] did have various bank cards which she had not signed. One such blank card was produced by [C] on disclosure. I find that [D.1] or someone at his behest forged his mother’s signature on the Cards in an attempt to manipulate the expert evidence;
  • ix) However, he had to provide the Cards for examination by [C’s] expert, as appears from the correspondence I have referred to. He therefore decided to send an empty envelope to Streathers but obtained a Certificate of Posting to show he had provided the Cards to them;
  • x) However [D.1] had not appreciated that the Post Office on the Certificate of Posting set out their weight of the envelope and any contents, for charging purposes, which according to the evidence of Dr Chatfield, was about twice the weight of what was actually despatched by [D.1], namely the empty envelope;
  • xi) [D.1] then tried to get around this evidential problem he had created for himself by saying the envelope was not, as Ms Jelea said, white but brown. However, this attempt to manipulate the evidence also failed as Dr Chatfield said a brown envelope would actually weigh less, which only fortified his conclusion;
  • xii) That none of [T’s grandchildren] were told by their grandmother of their future legacies, notwithstanding how close they all say they were to her, and – for [D.5 & d.6] – that she regularly told them they were to inherit her house and possessions;
  • xiii) That [D.1] in cross examination said his mother did not need to name her grandchildren who were to benefit as he knew who they were to be;
  • xiv) Likewise, his confidence that notwithstanding his mother not naming the three beneficiaries he prepared the [disputed] Will and got [D.3] to go round to witness it before his mother had even seen it;
  • xv) The fact that when their mother died on 24th November 2018 neither [D.3] nor [D.1] told anyone of the [disputed] Will – in fact it did not surface until [D.1] applied for probate of it in January 2019. I do not accept [D.1’s] explanation that the reason for this was because he was grieving; …
  • xvii) If Mrs Weller had really made the March Will, it would in view of her conduct of her affairs follow that she would have ensured a copy was in [a] Suitcase [which T had] prepared carefully to resolve her affairs, in all respects, for the future, with the copy of the [earlier] Will and the physical gifts of cash and jewellery;
  • xviii) Likewise, all the urgent efforts and concern to locate and secure the Suitcase would have been clearly pointless to [T] if she really had appointed [D.1] as her executor;
  • xix) Especially, the evidence of [C’s handwriting expert] that there was moderate to strong evidence that the signature of [T] had been forged.’
Carl Islam Author

Carl Islam Author

Why It’s Important That Your Business Has Security

Security is a major concern for many business owners, and it should be. There are security guards who specialise in protecting your site from security breaches that could lead to data theft or other security risks. These security guards working on-site at the location you need them at, which means they can keep an eye on all areas of your building as needed. You also have access to tailored security services that will ensure you are fully protected against any possible threat. Find more useful information in this blog.

Why Is Security Important To A Business

The benefits of having it are many, including the following:

  • Security helps keep both employees and customers safe
  • It can protect your company’s assets from theft or damage
  • Security guards are a cost-effective way to prevent security threats

There is no denying that security for business is important. If your business is located in London, then you should check a security company in London that could provide you with a reliable security service. Security is integral to any company because it helps reduce the likelihood that you’ll be targeted by thieves or other criminals who are looking to take from you what they can’t get elsewhere.

But not all security measures are created equal. Some companies outsource their security needs entirely while others hire locally so that they always have someone nearby if there ever develops a crisis situation at work or offsite events happen like break-ins. In either case, having armed individuals around makes people feel safer – even though only one percent of violent crimes involve security personnel.

Types of security that can be implemented for your business

Security guards: this is the most basic security measure that can be put into place for your company. They are trained to watch and monitor people who come in or out of buildings, patrol properties as security, provide security escorts inside a building, act as first responders if there’s an emergency on your property, and more.

Security cameras: security cameras are a passive security measure that can help deter criminals from trying to break into your business by making them aware of the surveillance being used on site. This is especially good in situations where you have an exterior security guard patrolling but doesn’t cover every angle or when there are multiple entrances to a building, which requires someone at each entrance so they don’t get lost if something happens inside up near one of those doors.

Locks: door locks come in many different varieties depending on what kind of protection level you want for your company – keyless entry systems with digital keys, proximity card readers, electronic locks, and more all make it possible to lock down buildings better than ever before while also limiting access only to those who should have it.

The steps you need to take in order to implement these types of security

Choose security guards who are qualified, licensed, and insured for the work that they do. This is especially important in all of those situations where security personnel will be working offsite or guarding an event.

Use security cameras to deter would-be criminals from entering your property illegally – this provides a 24/hour videotaped surveillance system so you don’t have to worry about what’s happening with your security or security guard.

Install locks on doors and windows that are in most need of protection at your company so that you can make sure only those with the right passcodes, keys, or cards have access to them while also ensuring a physical barrier against intruders who may try to break in by force.

How this will make your customers feel more safe and secure

When they come into your store or office space again, they’ll be feeling safer than ever because security is in place to help protect them and their property. They won’t have to worry about break-ins, thefts, or other crimes that may happen on your site which will make it easier for them to get the things done that they need without any interruptions from those who might want something from you.

Having security also makes customers feel more comfortable coming into a business when there are others nearby – which means you can grow your customer base with this security measure alone!

Reasons why people don’t invest in these types of services

Even though they have been shown to help reduce crime rates by up to 50%  in some cases, security guards and other security measures can be expensive to have on-site. However, with security camera systems being more affordable than ever before – costing as little as $99 for a starter kit that has everything you need!

With the break-in rate in London climbing at its fastest pace in years (up to eight percent from last year), companies are realising how important it is to invest in these types of security services now rather than waiting or trying to do without them altogether.

Security investments like this will help make your company less attractive to those who may want something from there while also keeping everyone safe and secure inside so they don’t have anything else stopping them from getting work done because their minds aren’t on edge worrying about what’s going on.

What you should do if someone tries to rob your business

If someone does try to break in, security guards are trained and able to handle a number of security situations. Once they’re on-site, the security guard will be able to get your employees out safely while also looking for any property that may have been taken during the attempted robbery so it can be returned as soon as possible. They’ll provide evidence at trial from their footage if needed which means less downtime for you!

The second security guard will then apprehend the suspect and call law enforcement for them so they can come in to take care of everything else.

Last, but not least, security guards are also trained in CPR and first-aid which means they can provide life-saving measures for someone who might need them while waiting for emergency responders to arrive.

The way you protect your business is going to affect how customers feel about it. Customers may be hesitant or wary of entering a store that doesn’t have security cameras, an alarm system, and/or other measures in place to deter theft. If someone does try to rob the store, they might not get away with much as long as there are alarms installed and enough employees on duty at all times. Your customer’s safety should always come first when making decisions for your business – so don’t take any chances by being unprepared!

101 Most Innovative Business Intelligence Start-ups & Companies

London, UK, August 24, 2021 – Independent publication Data Magazine has named Advisory Excellence in a list of the 101 Most Innovative Business Intelligence Start-ups & Companies (England) in 2021.

Advisory Excellence placed 28th in their list of the 101 Most Innovative Business Intelligence Start-ups & Companies in England. The list of start-ups and companies were chosen for their approach to innovating the Business Intelligence industry and for being exceptional companies to follow on social media.

Why not follow Advisory Excellence on social media?

This follows our success in being named among London’s Best Professional Networking Companies — To Work For and Buy From in 2021 by BestStartup.co.uk and among the Top UK Professional Networking Companies and Start-ups in 2020 by Welp Magazine.

Advisory Excellence reaches 45000+ followers and subscribers on social media. We offer news and press release distribution to businesses and individuals from around the globe.

Our news is also shared on Google NewsStreet InsiderMcap MediaWire, NewsEdge and Stocks News Feed.

If you would like to see your news on Advisory Excellence, please contact us for a free quote.

Baker McKenzie bolsters tax practice with hire of Stephanie Pantelidaki

Leading global law firm Baker McKenzie has hired Stephanie Pantelidaki as Head of Financial Services Transfer Pricing in the firm’s tax practice. Stephanie joins from PwC, where she has worked in both the firm’s United Kingdom and Switzerland offices.

Stephanie has over twenty years’ experience advising on transfer pricing and international corporate tax issues with a particular focus on financial services – having worked with leading institutions in banking and capital markets, investment management, and the insurance sectors.

She started her career in academia as an economic adviser and research fellow at London Business School, and went on to work for organisations including Andersen, KPMG and Baker McKenzie (2006-2009) where she helped establish the Transfer Pricing team in the London office.

Mark Delaney, head of Baker McKenzie’s tax practice in London, said: “Stephanie is a truly exciting hire for Baker McKenzie. We’re seeing increased demands from financial institutions for transfer pricing works and her skills and expertise will enable us to deliver an even better service for our clients.”

Alex Chadwick, Baker McKenzie’s London Managing Partner, said: “We’re welcoming Stephanie back to Baker McKenzie at a great time, with opportunities in abundance for continued growth across the tax practice. Her experience, crossing academia and finance, mean she will bring a lateral-minded point of view to the team. She’s going to be a fantastic asset to us.”

Stephanie’s hire follows a number of recent significant lateral appointments including Leveraged Finance partner Ben Wilkinson, who joined Baker McKenzie from White & Case, M&A partner Nick Rainsford, who joined from Ashurst, private equity partner Justin Hutchinson, who joined from Kirkland & Ellis, Adam Eastell a partner from Slaughter & May and Nick Bryans, also from Ashurst.

Latham & Watkins Advises on Kier Group’s £241 Million Capital Raise

Latham & Watkins is advising Rothschild as sponsor and Numis and Peel Hunt as joint bookrunners to Kier Group plc (Kier) on Kier’s underwritten firm placing, placing, open offer, and separate directors’ subscription, raising gross proceeds of approximately £241 million.

The capital raise, together with the recent sale of Kier Living Limited, will raise approximately £352.4 million of gross proceeds for Kier. The proceeds will provide Kier, a leading infrastructure services and construction group, with the financial and operational flexibility to continue to deliver on its strategic objectives.

The Latham team was led by London corporate partner Chris Horton, with associates Sean Meehan and Frederick Gardner. United States securities advice was provided by partner Ryan Benedict and capital markets lawyer Irene Pistotnik.

About Latham & Watkins

Latham is dedicated to working with clients to help them achieve their business goals and overcome legal challenges anywhere in the world. From a global platform spanning 14 countries, Latham lawyers help clients succeed.

Deloitte announces new additions to UK leadership team

Deloitte is today announcing new additions to its leadership team with Lisa Stott joining as the new managing partner for tax and legal and Jackie Henry taking over as managing partner for people and purpose. In addition, Kirsty Newman has been appointed as UK market chair.

Effective this month, Jackie will provide leadership of Deloitte’s UK people strategy and purpose agenda, focusing on inclusion and wellbeing. She started her career with Deloitte in Belfast 31 years ago and for the past seven years has been lead partner in Northern Ireland.

Jackie’s commitment to diversity, inclusion and social mobility has been a focus throughout her career, and in particular her efforts in building skills and providing access to education for people across Northern Ireland. This includes setting up the Belfast Delivery Centre, which includes the creation of Deloitte’s BrightStart Degree and Graduate academy programmes. She has also served as people and purpose lead for Deloitte’s UK consulting business for the last two years.

Jackie Henry commented: “The last year has reminded us more than ever of the importance of putting people and purpose at the heart of our business. I am delighted to be appointed UK people and purpose managing partner. We are a people business and my priority is to put the voice of our people at the centre of our business strategy to deliver an impact that matters.”

Effective from 1 June, Lisa Stott will be the first woman to lead Deloitte’s tax and legal service line. She has been at the firm for 32 years, advising and supporting clients, and was most recently global lead for international tax and business tax advisory.

Lisa Stott said: “It is a privilege to be leading Deloitte’s tax and legal teams. We will continue to focus on our clients’ needs by investing in our capabilities and building on our recent acquisitions of Kemp Little who joined our legal team and Kerr Henderson to our pensions teams.”

In her role as market chair, effective from 1 June, Kirsty Newman will build relationships with UK Boards and policymakers and lead Deloitte’s Vice Chairs group.

Newman also serves as Deloitte North & South Europe (NSE) leader of Deloitte Private and is the co-chair of Deloitte’s Global Family Office Advisory Board. She started her career with Deloitte as a tax consultant and has been a partner for over 20 years.

Kirsty Newman added: “I am delighted to have been appointed as market chair of Deloitte in the UK. I look forward to working with our vice chairs and partners to continue to create connections between our clients, communities and people to collectively support a UK-wide recovery.”

Richard Houston, senior partner and Chief Executive, said: “I have no doubt that the wealth of experience and expertise Kirsty, Jackie and Lisa will bring to their new positions and the leadership of the UK firm will further reinforce our inclusive culture and our purpose of making a positive impact on clients, our people and wider society.”