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Guest post: Benjimin Burgher

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What did you find out the hard way?

I found out something I already knew but decided to ignore. Simply do not ask a question you are not reasonably sure of the answer to!

I was involved in a lengthy discrimination claim acting for the Claimant. A key issue was the recollection of one of the Respondent’s witnesses in relation to a meeting that had taken place some 2.5 years previously. There were no notes of the meeting and under cross examination the Respondent’s witness accepted that he had not taken any notes of the meeting . The level of detail given by the Respondent’s witness of the meeting was stark in its depth and precision. I suggested to the witness that he could not possibly have that level of recall.

Nothing wrong with that question. If only I had left it there. When he said that he did have that level of recall I asked him to recount the first question I had asked him during cross examination. We were, by this stage, 15 minutes into the cross examination. He responded by recounting word for word, in the correct order, what I had said including the mistake I made in turning to a bundle page number and the tribunal member’s interjection confirming the bundle page number and then proceeded to recount my subsequent question before I had to stop him and move on. He had a photographic memory and as far as his recollection of the meeting 2.5 years previously was concerned the issue was clearly against the Claimant and need not have been. Very painful at the time.

Benjimin Burgher is a barrister specialising in employment, discrimination and commercial law at Outer Temple Chambers, and a fee paid Employment Judge.

One comment

  1. Naomi

    I think you’re being rather hard on yourself! It is true that not asking a question unless you’re pretty sure you know the answer is a good rule of thumb, but 999 in every 1000 witnesses – at least – would have failed this test, so I think it was a good question to ask. That, perhaps, is just another way of saying that odds of 999/1000 or better counts as “pretty sure” – but of course (as every lottery winner knows) sometimes long odds do come up.

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