It can be an emotional and disheartening experience for a party being sued.
At Mullins Lawyers we act for insurers and respond to claims by injured people. We investigate these claims and advise our insurer clients on the evidence and the likely result if the matter proceeds to trial.
It is important in the investigation process for the party being sued to appreciate the distinction that the lawyer investigating the claim acts for the insurer and not the party being sued. A lawyer is ethically obliged to ensure their client appreciates all the risks in a case, and to do so, they must be impartial in considering the evidence to enable them to give instructions on what to do.
Whilst a person being sued may react on a personal level, it is the lawyer’s task to verify and assess claims based on admissible evidence. A lawyer is not ethically permitted to merely act as a mouthpiece and repeat evidence which they know or suspect to be false. A lawyer is also ethically obliged to present the strongest case possible, based on evidence.
Broadly speaking, there are two types of evidence: factual and opinion. Opinion evidence should only be provided by qualified, independent experts. It would be very rare for a party being sued to be permitted to give opinion evidence because clearly, they are not impartial. Mere experience in an industry does not qualify a witness as “expert”.
Factual evidence can be given in documents (e.g. CCTV, incident reports, medical records etc). Such evidence is more compelling if it is contemporaneous, independently verified and corroborated.
Evidence of facts can also be given by people who witness an event. Witnesses can give evidence of what they saw or heard.
Information given by one person to a second person about an event, cannot be given by the second person as evidence of what the first person saw, heard or did because that information is “hearsay” and not admissible.
Unfortunately, our investigations sometimes do not occur until years after an event. If the event was not properly investigated at the time and the contemporaneous evidence was not preserved, it can be difficult to obtain reliable evidence after witnesses have moved on or memory fades.
Lawyers cannot consider evidence “in a vacuum”. When advising clients, lawyers need to consider all evidence, including conflicting evidence, and the strengths and weakness of the respective party’s evidence. Whilst lawyers may ethically attack weaknesses in their opponent’s evidence, they must also be alive to the weakness in their own client’s evidence and provide a balanced opinion to their client as to which evidence may be preferred by a court.
As a classic example, in a workplace injury claim, evidence of whether an injured worker was properly trained in a task may be in dispute. The lawyers know the injured worker will give testimony at trial that they were not trained. If the employer asserts training did occur, the employer will be asked to provide records demonstrating training occurred, was specific to the relevant task, undertaken proximate in time to the injurious event and the training was understood and applied by the worker.
In the absence of such documentary evidence, witness evidence may be given by the person who provided the training. It is important the trainer is able to recall providing the training to the injured person and if possible, why they recall that training. Evidence of “I would have given that training because that’s what I usually do” leaves that witness open to effective cross-examination.
Ultimately, depending on the client’s instructions, it is often more beneficial (and far less costly) for a disputed matter to resolve by making appropriate concessions, allowing the negotiating parties to be somewhat in control of their own destiny, rather than risking an “all or nothing” result at trial.
There is an old adage that in a trial between two parties, sometimes one party wins, sometimes both parties lose.
The lesson learned by lawyers is this:
- The most reliable evidence comes from firsthand witnesses who record their evidence contemporaneously and comprehensively;
- In the absence of a very good reason to discredit a firsthand witness who has a good reason to clearly recollect an event, that witness’s testimony may be compelling;
- A judge will exclude evidence if it is not relevant to the issues in dispute and will weigh up remaining evidence, taking into account the independence and motivations of witnesses;
- All witnesses are open to cross-examination; and
- Whether the judge is right or wrong, absent an appeal, the judge’s decision stands.
For further information, please contact our Insurance team.
