Place. Price. Product. Promotion. The 4 Ps of marketing – inscrutable to a student beginning his course in marketing – are learnt by potential marketers with the hope that one day, they will be able to make products sell. And with ease. In the legal marketplace, a lot of stuff sells. Transactions sell. Litigation sells and now Alternative Dispute Resolution sells. Of all the three, there is some general consensus that litigation is the prima donna. It is essentially the rights-based approach that heads the pyramid of dispute resolution mechanisms or techniques – or whatever you would like to call them. Transactions are mostly if not all the time seen as preliminary or antecedent to litigation. ADR is the new kid on the block. The new method to sell to clients. It still has to compete with the others. At least for Ghana, it’s not been easy. I mean suddenly this is a new thing, something that wants to make “You will hear from my lawyers” and “We’ll meet in Court” not fancy anymore. And it uses the ancient technique of giving a dog a bad name and hanging him.
Isn’t it curious how every ADR textbook begins with how bad litigation is? It is expensive. It is time-consuming. It puts stress on the parties (as if some professional litigants don’t like it. ADR guys, you’ll only succeed if you call these ones litigation psychos – give them a bad name and hang them!) There is procedural informality et cetera. Then it gets to arbitration and then the books say, “You know, it’s not THAT expensive”, as if it is free. Plus, the arbitration is in London or Paris or Singapore or some international commercial city shinning with urbane glamour. Truth be told, the textbooks try brutal honesty. They give you the list of advantages and disadvantages of each ADR mechanism. It’s like they try to put all their cards on the table so they look like honest businessmen selling you good juice. When you drink it, it tastes bad but then they say “Caveat emptor. We put all our cards on the table, brother”. All this stuff in the first pages of ADR textbooks is about price, product, and maybe place. But the promotion of it is wild. It’s compulsory stuff in many universities these days. Like, you don’t have a choice. You take it or you can’t finish. Crazy stuff the promotion of ADR is. The legal system wants it to sell. The critical question is why? Most of the selling points are grandiose and perhaps exaggerated, but one suffices to potentially justify the agenda to make ADR sell.
I think this is the only point that has managed to make a lasting impression on me. Well, it isn't really the making of an impression, but confirming my already existing reservations about the present state of the evidentiary process at trial. I remember going through my ADR manual in professional law school and coming across some paragraphs on the pretentiousness of the litigation process that makes it seem as if the rules are formulae that can be applied to facts. Like ax=y, where a = facts x = law and y =holding (must means something in math right?). My manual argued the point that the process of arriving at "indisputable" facts is subjectively ladened and based on the human conditions of the judge or jury. That’s an assault on the fact part of the equation. C’est dommage.
The process of admitting facts falls squarely in the field of Evidence Law. The most conspicuous area of evidence-taking is witness testimony. Where one party examines the witness and the other then bears the cross of examining the witness. That's all most of us remember from the TV Shows and civil rights movies. The conspicuousness of witness testimony cannot be taken for granted because in many cases, a matter is lost or won on the basis of the revelations emanating from the witness testimony. How then do we know that the witness is telling the truth? In other words, what is it about the credibility of witnesses and how do we test it?
The answer is surprising and unsurprising. Testing the credibility of a witness is mind-reading and soothsaying. You look at the witness’ face and as judge or jury, you can see that the witness has told lies and will tell more lies. In a case I once read some years ago, one judge said the witness had told the Court a tissue of lies. I felt so vaguely ashamed I wanted to mollify the judge on the witness’ behalf. It doesn’t work that way though. To tell lies is one thing but to superlatively lie? That’s something else.
Mind-reading and soothsaying sound so ridiculous but the point is that the mind-reading and soothsaying enterprise of the tribunal of fact is a sustainable line of criticising the evidentiary process at trial. Why do I say this? Because the credibility of a witness is the product of an anomalous amalgam of factors. Ghana’s Evidence Decree, for example, lists the following:
1. the demeanor of the witness;
2. the substance of the testimony;
3. the existence or non-existence of any fact testified to by the witness;
4. the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies;
5. the existence or non-existence of bias, interest or other motive;
6. the character of the witness as to traits of honesty or truthfulness or their opposites;
7. a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial;
8. the statement of the witness admitting untruthfulness or asserting truthfulness.
Isn’t it interesting that the first thing to look out for is the demeanor of a witness? It defeats the “don’t judge a book by its cover” rule. How do we look at a witness’ demeanor and factor that into the final analysis of credibility? It seems impossible. People with innocent looking faces have killed people. People with the most hardened of faces have never hurt a fly. Some are ascetic even. Reminds one of the English judge who said:
Some persons are by nature unduly timorous and imagine every path beset with lions. Others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. (case is Glasgow v Muir)
Imagine an unduly timorous person who has been subpoenaed to appear and testify on oath. He has never testified in his lifetime. Just imagine the earthly fright that would grip this man. He would tell truth as if he were trying to lie or tell lies the other way round. Remember Justice Kpegah talking about being overawed by courtrooms and conceding grounds that should be not be conceded? Some witnesses are brave and sometimes say more than they should when asked a “Yes” or “No” question. It can be mistaken for hubris yet the person is just of robust temperament. It’s strange to me, to be honest. Why should demeanor be the first? The other factors don’t seem to help much but some are less subjective than demeanor. For example, “a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial”. Here you just need to compare the statement or conduct of the witness with what the witness is saying in Court and you’ll arrive at a reasonable conclusion. Still, these factors are arranged like a buffet to pick and choose from. Some may apply in some circumstances and others may not. More reason why credibility is tarot card reading. You choose the factors you want and blend them and arrive at an inner truth, a gut feeling that the witness is lying or telling the truth. In all this, one factor is "inerasable": demeanor. It’s your outward appearance for God’s sake. Demeanor is a constant. If demeanor is a constant and one has succeeded in selecting some less subjective factors to use in solving the credibility crux, demeanor will just muddy the pool of less subjective factors. Could we have more verifiable and objective factors to test credibility? Just saying….
If all the litigation taekwondo revolves around evidence and credibility and things like that, the ADR guys might have discovered a weak spot. Until the litigation guys figure the method to this mind-reading and soothsaying that actually makes sense for us to buy it, ADR might just offer the alternative. ADR 1. Litigation 0.