Giving evidence and answering questions in court

Witness giving evidence 

If you’re facing a court appearance as either a defendant or a witness you should expect to be asked a lot of questions.  Advocates, such as solicitors, are taught a variety of methods for questioning witnesses to enable them to undermine the evidence given by a witness for the other side.

In this post, the advocacy experts at London Drink Driving Solicitors will show you how to answer questions to give the best possible impression.

Er… I think it was kinda like this – be direct

Have you ever spoken to somebody who can’t give you a straight answer to a simple question?  I’m sure you have and you may have found their answer less convincing because of the way they spoke to you.

Consider the following two transcripts of evidence:

Q. What was the nature of your acquaintance?

A. We were, er, very close friends. Er, she was even sort of like a mother to me.

Q. What time did she leave the party?

A. If I’m not mistaken, it seems like it was, perhaps midnight.

And

Q. What was the nature of your acquaintance?

A. We were close friends. She was like a mother to me.

Q. What time did she leave the party?

A. It was just after midnight.

In the first example, the person answering the questions is hesitant (lots of “er’s”), in the second these are gone.  In the first set of questions and answers, the witness casts doubt on her own account by saying “she was sort of like a mother to me”, “if I’m not mistaken” and “it seems like it was, perhaps midnight”.  When you say things that make you appear to doubt your own evidence you will sound less believable.  You can see that in the second example the witness is no longer unsure and nobody can doubt she left the party just after midnight.

It should come as no surprise that two psychological experiments (O’Barr and Conley 1976; Erickson et al 1978) have shown that when confronted with the second sample jurors found that witness more believable.

Be powerful

Powerful speech is direct speech - people who omit certain characteristics sound more authoritative and thus more believable.

A linguist called Lakoff, in 1975, provided a list of characteristics that were later used by O’Barr and Conley to test how use of language affected the opinion of a jury. Some of the characteristics she highlighted as bad form were:

1. Frequent use of phrases such as “I think”, “it seems like”, “perhaps” and so on tends to make people less confident in the accuracy of your answers;
2. Answering with a question rather than giving a direct answer, for example, “I had one… maybe one and a half pints?” When you ask a question, it’s normal to have a higher intonation (your voice rises) at the end of the question whereas when you make a statement your voice remains flat. A rising intonation at the end of a statement makes it sound like a question and affects the weight placed on it by a jury;
3. Repetition – if several questions have the same answer then repeat yourself, but that’s not what we mean here. By repetition we are talking about the kind of repetition that makes you sound like you are trying to convince yourself, e.g. Q. “What time did you leave the party?” A. “Midnight… er yes it was midnight”.  Repeating an answer sounds like you are not sure of the answer and so makes you seem a less reliable witness in teh eyes of the people you are trying to convince, either the jury or magistrates; and
4. Intensifiers. Lakoff considered that words designed to intensify an answer were, in her opinion, characteristics of female speech, which she judged to be less powerful than male speech. Irrespective of whether Lakoff was correct on the gender differences we have all heard people talk who sound as though they are trying to increase the importance of something – usually themselves. In the 21st century people seem to use words like “very”, “awesome”, “amazing” etc frequently so perhaps this is less of a concern nowadays;

O’Barr and Conley described speech using the Lakoff phrases as “powerless”.  They called direct speech, which omits all of the above, as “powerful”. More importantly, they found that men and women using “powerful” speech were seen as more competent, intelligent, likeable and believable.

As a witness who, presumably, wants to be seen as truthful being judged likeable, competent and intelligent is important because you are more likely to be perceived as confident and a confident witness is a believable witness. In fact, a study by Wall (1965) found that jurors tended to believe confident eyewitnesses 80% of the time even when the witness was wrong!

How will the police decide if I should be charged with drink driving?

Camberwell Green Magistrates' Court

A question I’m often asked by clients is “how do the police decide whether to charge or take no further action (NFA)?”

What are the options?

Let’s have a quick think about what options are available to the police at the end of an investigation.

The police have four options in most cases.  They can, charge (or summons you to attend court), caution you, issue a fixed penalty notice or take no further action.

Cautions are rarely issued in motoring cases and are never used where somebody is accused of drink driving.  This is because drink driving carries a minimum 12-month driving ban, which only the court can impose so the case has to be dealt with at court.

Less serious driving allegations, such as speeding, may be dealt with by way of a fixed penalty notice, although in practice these are still dealt with by the court without you needing to attend the hearing.

How do they decide whether to charge?

Evidence

First, the police or a CPS solicitor will consider the evidence obtained by the police and decide whether there is sufficient evidence to charge.

They should consider whether the evidence is admissible, reliable and credible.  A straightforward drink driving case will have evidence of a police officer who sees the suspect driving and evidence that the person failed a breath test.  Although, we are frequently seeing cases where there is no admissible evidence of driving.  For example, the police might say “I was told by two separate witnesses that [Miss X] was driving.”  This is called hearsay and should not be admitted into evidence.

If the police decide that there is not enough evidence to charge then that is the end of the case.  If they decide there is enough evidence the decision maker must move on to ask themselves whether prosecuting the person in court is in the public interest.

Public interest

In 1951, Lord Shawcross, the then  Attorney General, said, “[i]t has never been the rule in this country, I hope it never will be, that suspected criminal offences must automatically be the subject of prosecution.”  The point he is getting at is that just because somebody has committed a crime it does not mean that it is always in the public interest to prosecute them.

In drink driving cases, the prosecution will always reach the conclusion that a prosecution is in the public interest.  This is because of the risk of serious injury and death that can result from driving a car while over the drink driving limit.  It is also because drink driving carries a minimum 12-month driving ban that only a court can impose; so to be banned the police have to send every suspect to court.

Putting it all together

If the prosecution decide there is enough evidence to charge a person with drink driving then it is a foregone conclusion that they will decide it is in the public interest to prosecute that person in court.  In less serious motoring cases, it is possible to avoid a court appearance – always speak to an experienced motoring solicitor if you are facing a driving allegation... it could save your driving licence.

The whole process is called the Full Code Test and should be applied before any decision is made to charge a person with an offence or continue with a prosecution after one has begun.

Is a drink driving conviction more likely if you mix alcohol and energy drinks?

Could energy drinks increase your chance of a drink driving conviction?

An interesting new study on drinking and driving from a the University of Western States in Oregan, USA has been published, which shows that people who mix energy drinks with alcohol may be more likely to drink drive than those who consume only alcohol.

The study looked at 355 people who consume alcohol.  The researchers found that 57% of those who consumed alcohol mixed with energy drinks admitted that they had driven while above the drink driving limit.  In contrast, 44% of those who consumed alcoholic drinks not mixed with alcohol admitted to drink driving.

The author of the report, Conrad Woolsey said, “From a physiological standpoint, [drinking energy drinks] does change the brain chemistry to make you more confident”.  Woolsey went on to say that energy drinks may increase levels of dopamine, making people feel like they are more capable of certain actions.  This might explain why those consuming energy drinks with their alcohol were more likely to drink drive.

People who mixed energy drinks with alcohol were more likely to drink more frequently and had more episodes of binge drinking.  More frequent drinking sessions may also explain why mixed drink consumers are more likely to drink drive – because a large number of people are caught drink driving the morning after a heavy session!


None of this means that you will be safe to drive after consuming alcoholic drinks that are not mixed with energy drinks.

Why Barbara Knox reminds us to get it right at the start

Barbara Knox getting it right at the start of her career on Coronation Street

In the news recently was the case of Barbara Knox, the Coronation Street actress known for playing Rita Tanner in the soap, who pleaded guilty to drink driving on the day of her trial.

The prosecution alleged that she had travelled to a police station where her daughter was being held for drink driving.  Police officers formed the opinion that she had been drinking and advised her not to drive away from the police station.  Mrs Knox ignored that advice and was arrested, blood tested and charged with drink driving.

At court, she entered a not guilty plea, which she maintained until the day of her trial.  At the start of the trial, Mrs Knox changed her plea to guilty.  This late change did not impress the judge who had been due to hear the trial and who passed sentence on Mrs Knox.  She told Mrs Knox that her original guilty not plea and subsequent late change of heart had wasted court time and money.  Now it’s entirely possible that Mrs Knox had what at first glance appeared to be a good defence but that for one reason or another it was not possible to gather the evidence to proceed to trial, but her misfortune makes for a timely reminder for the rest of us.

Defendants appearing in the magistrates’ court are put at a disadvantage by the system.  The prosecution will not serve their evidence until the last minute meaning that defendants have almost no time to prepare, whereas the prosecution may well have had weeks to get their case in order.

At the first hearing, the court will expect you to have a detailed defence planned out and will expect you to explain what your defence is and give the names and addresses of any witnesses you plan to call to support your defence.

You will also be expected to tell the court which prosecution witnesses you agree with and which you disagree with.  If you disagree with the evidence of any prosecution witness you’ll be expected to say why you disagree and how that disagreement is relevant to your defence.  The court will expect you to have a clear idea whether any of the prosecution evidence should be ruled inadmissible and to put the court on notice of any application to exclude evidence immediately.

Failure to give the court the information it requires may result in you being prevented from calling witnesses, following a particular defence or making a legal argument that could otherwise result in your acquittal.  This is why it is so important to get it right at the very start of your case.

Getting it wrong at the first hearing and putting forward a defence that has no merit, which leads you to pleading guilty at trial will result in a harsher sentence than if you pleaded guilty at the earliest opportunity.

So, in conclusion it is important to get your defence straight at the very first hearing of your case.  If you don’t then you may not be able to put forward your defence, may lose the right to challenge prosecution evidence and, like Mrs Knox, you may receive a harsher sentence if you are convicted.

Clarke Carlisle charged with a drink driving offence

Clarke Carlisle, former Burnley, QPR, Leeds and Northampton player
has been charged with a drink driving offence

It has been reported that Clarke Carlisle, the former chairman of the Professional Footballers Association has been charged with failing to provide a specimen of breath for analysis by the Metropolitan Police.  He is due to appear at Highbury Corner Magistrates’ Court on the 20^th January 2015, although he is currently seriously injured in hospital following a collision with a lorry that was unrelated to the allegation of drink driving.

Since it’s in the news, this seems like an opportunity to explain what failing to provide a specimen is all about.  It goes without saying that none of what follows relates to Clarke Carlisle’s case since we would never discuss an individual case prior to trial when the full facts are not known.

Most people I speak to have the idea that failing to provide isn’t a serious offence – I hear a lot of people saying, “oh but failing to provide isn’t as serious as drink driving”.  If you’ve been charged with failing to provide then the bad news is that it is a serious offence, even more serious than drink driving itself.

Why is it so serious?  Well the simple reason is that if you could get away with drink driving by refusing to provide a specimen then everybody would refuse to provide!  I’m told that in Texas there is no equivalent offence so drivers routinely refuse to provide and are allowed to go on their way; how true that is though I’ve no idea.

Because the courts treat failing to provide more seriously than drink driving it is easy to find yourself facing a prison sentence, which makes getting an expert drink driving solicitor even more important.  Prison becomes a real likelihood (even for a first time offender) if the court decides that you deliberately failed or refused to provide and that you were seriously intoxicated at the time.  This can be a problem for a lot of people because often the reason they fail to provide is because they were drunk in the first place.

The police can require you to provide a specimen of breath if they were conducting a genuine investigation into a drink driving offence.  This means that if you can show they were not investigating such an offence then you will have a defence.  So, if it were impossible for you to drive the vehicle and the police knew that then you may be able to argue that their investigation had concluded upon discovering it was impossible for you to drink drive and therefore they had no power to require a specimen of breath.

Far more common are medical excuses for your failure, such as asthma or some other condition that left you unable to comply with the procedure.  It’s worth remembering that if you can be too drunk to provide and that is a medical excuse!  I have won cases by arguing that my client was physically incapable of providing through being too drunk.  If you are considering running with this type of defence you MUST take expert legal advice from a specialist drink driving solicitor; it’s easy to make things far worse for yourself and a decent amount of the work we do every year is advising people who went it alone or chose the wrong solicitor.

I know that Mr Carlisle’s family will be far more worried about him than any drink driving case at the moment and everyone here at the London Drink Driving Solicitor wishes him a speedy recovery.

If, like Mr Carlisle, you have been accused of failing to provide a specimen of breath (or blood or urine) then you can get expert legal advice from the London Drink Driving Solicitor and by calling 020 8242 4440.

Choosing a solicitor: Part 3 – Trust, commitment, care and attention

It's on a cup so it must be good advice.
But, personally I'd always look a little deeper

This is the third and final instalment of our guide to choosing the best solicitor to handle you case. Part 1 deals with finding a solicitor with the right expertise and part 2 deals with getting the best value for your money from your solicitor.

When you choose a solicitor to represent you it’s important to pick somebody who you can trust to do the work on time, somebody who is committed to your case and who will give your work the care and attention it deserves.

Cuts to legal aid have led legal aid solicitors to change the way they practice law either by diversifying into other areas (thus losing their expertise as they cannot devote their full attention to any one area) or by adopting the “pile ‘em high, sell ‘em cheap” model of practice.

I began my career in a legal aid firm, which needed to bill an average of 50 cases per month to make its monthly target of £48,000 with a staff of 15.  By the time I handed back my legal aid contract in 2011 my firm was having to bill an average of 120 cases per month to make our monthly target of £13,000 (which was our break-even point) with a staff of just three!  The cases hadn’t got easier, in fact with the introduction of tougher court rules they had become harder and more time consuming.  It was obvious that the only way we would be able to meet that target without burning out was to do as little work as possible on each case.  It wasn’t how I was willing to represent people, so I got out of the legal aid market.  Since I got out the legal aid rates have been cut even further meaning firms have to take even more cases per month to make ends meet.

Some private client firms work the same way – charging low fees to attract as many clients as possible then doing the minimum possible work on each case.

What’s the point of this sojourn? It’s to get across the need for you to be able to trust the solicitor you instruct will give your case the full care and attention it deserves.  Ask your prospective solicitor how many ongoing cases he or she is handling at the moment and whether that is a normal level for him or her to operate at.  You should also ask how many hours they expect to spend working on your case – experience tells me that a typical magistrates’ court trial will take between 12 to 16 hours to prepare and present at court.  Crown Court cases can take far longer – the longest case I ever handled took around 300-hours to prepare and that’s not including any court time at all!

If the solicitor has a lot of cases ask yourself will they be able to give your case their full attention?  Is their fee significantly lower than their competitors?  If it is then you have to wonder how it is they can afford to do the work for that price.

Choosing a solicitor: Part 2 – Value for money

Lots of solicitors offer good value for money, find out which suits you

This is part two of our three part series on choosing the right solicitor for you.  Follow the link to read part 1, which deals with finding a solicitor with the right expertise.

They say you get what you pay for and that is just as true of legal services as it is of anything else.  I was recently approached by a lady who was about to stand trial for failing to provide a specimen of breath for analysis – an offence that can easily lead to a prison sentence – her solicitor had only just obtained an expert report that was essential to her defence.  When I read the report I was shocked.  It was by an expert who appeared to have no expertise in the area he was giving evidence about.  He made several basic mistakes that showed he did not understand the area at all.  When questioned, the lady revealed that the firm she had instructed had charged her a total of £915 for their services.  What had she got for her money?  The advice of a paralegal – no contact whatsoever with a qualified solicitor.  She had been advised to pay an expert who was totally unqualified to give advice in her case.  As a direct result of that she eventually accepted that she was going to lose the trial and decided to plead guilty – she had completely wasted her money and lost a very winnable case.

Did she get value for money?  I’d have to say that she did not.

What could she have done differently?  First, she should have shopped around and asked questions of the firms to whom she spoke.  Questions such as: 

1.       Who will act for me?

a.       What are their qualifications?  If they are not a qualified solicitor then ask yourself whether you want to be represented by somebody who is unqualified?  They should be supervised by a qualified solicitor but how often will they be supervised?  How often will a solicitor review your file?  Will a solicitor be in control of your case?

b.       How much experience does this person have of handling your type of case?

2.       When will I meet my solicitor?

a.       If all communication is handled by email or telephone then ask why that is?  Are they a firm that “piles ‘em high and sells ‘em cheap”?  You can’t do that if you are spending time preparing for and attending client meetings.

b.    If you aren't meeting your solicitor then ask what exactly they are doing for you?  Beware of "national" firms with only one office.  If you instruct a firm in Manchester or Devon to represent you in London will they be taking their fee just to pick up the phone to a London based Chambers - which is probably not a specialist set at all - and get them to do all the work?

3.       Who will represent me at court?

a.       In 90% of cases, I will act as the solicitor and advocate for every client – if your solicitor is planning to instruct a barrister then ask yourself why your solicitor won’t represent you – does he or she lack the experience or qualifications?

b.       When will you meet your advocate?  I often hear of people only meeting their advocate on the morning of trial – are you happy to do that?

c.        Many firms like to outsource advocacy to barristers who they may never have met nor seen in court – ask them whether they do that and if, for example, the firm is based in Manchester and your case is in London ask how often they see the barristers they instruct in court?  If their answer is “we instruct him all the time and never get any complaints” then ask yourself if you are happy giving your case to a firm that doesn’t take the time to properly vet its advocates.

You should also ask how the solicitor sees your case taking shape – what will they do?  When will the work be done? 

Once you have asked all these questions you are ready to ask “how much is this going to cost me?”  The more specialist the solicitor the better he or she should be at predicting the cost of your case because they are likely to have seen many cases similar to yours.

Let me be blunt for moment, solicitors are not the cheapest service you will ever buy – there’s no getting away from that fact.  Solicitors cost a lot to employ because we have a lot of overheads in terms of insurance (my firm carries £3,000,000 of insurance per case and have never had a single claim against us), regulation, law updates (I personally receive 80 email updates every month containing multiple cases and new/amended Acts of Parliament as well as regularly attending courses and conferences).  If the price sounds too good to be true then it probably is.  A top city-based commercial solicitor will cost you anywhere from £500 upwards, my own commercial law solicitor charged £350+VAT per hour.  The most expensive legal advice I have ever bought cost me £1,000 per hour!  It can get very expensive very quickly. 

Motoring solicitors are significantly cheaper in comparison to our city-slicking cousins.  I don’t charge an hourly rate; instead I charge a fixed fee per case.  Fixed fees mean you know exactly how much your case is going to cost you and there are no nasty surprises.  It also means that I can agree payment terms with my clients whether that’s money up-front or staged payments over a number of months.  Ask any potential solicitor what their payment terms are and, if you would prefer to pay monthly rather than in a lump sum then do not be afraid to ask.  Do remember to ask whether your solicitor will charge interest on any monthly payments - they shouldn't normally do that.

Once you have all the facts you can sit down and decide which firm offers you the best value for money.  Who is going to do the best job for you at the best cost for that work?  Once you have decided that you can decide who is the right solicitor for your case.

If you do require expert legal advice on any aspect of motoring law then please do contact the London Drink Driving Solicitor on 020 8242 4440.

Next time we will be looking at trust, commitment, careand attention you should expect from a solicitor you employ to work on your case.