Remember Not to Forget: How to Improve Witness Memory in Arbitrations

Aug 2021


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1          The International Chamber of Commerce Report on the accuracy of witness memory

When I was a child my best friend had the nickname ‘Miffy’.  I have a very clear memory of my role inventing the nickname. A few years ago, I was talking to a different friend, who had an entirely different origin story for the Miffy nickname, one in which she played the starring role.  To this day, I have no idea whose version of events is true.  Ironically, I also don’t remember my friend’s version of the story.

The fallibility of human memory was also the subject of a recent report by the International Chamber of Commerce (Report).  The Report’s mandate was to “consider whether modifications could be made to current practices, or alternative approaches could be adopted, in order to enhance the probative value of fact witness evidence in international arbitration, particularly as it is affected by memory”: para 1.3.

The strategies identified by the Report will be of significant value to anyone participating in arbitration, and especially to in-house and external counsel.

2          How Your Memory Can Be Distorted

Substantial research now demonstrates the ways in which memory may be unreliable or distorted.  It is tempting to think of memory as a static image which is simply retrieved.  In truth, memory is far more malleable; subsequent events play an important role in how we reconstruct memory.

Part II of the Report points to several observations in the scientific literature which demonstrate the unreliability of memory.  Four are worth highlighting.

(a)        The impact of phrasing on responses to questions.  Changing how you phrase a question to a witness can significantly impact the response.  For instance, in one study, participants watched a movie: Group A was asked “How long was the movie?” while Group B was asked “How short was the movie?”  On average, group A thought the movie lasted 130 minutes whereas Group B thought it lasted 100 minutes.

(b)        The misinformation effect.  Where witnesses are exposed to misleading information after the event this may taint their recollections.  In the context of arbitration, such misleading information could come from anyone with whom they discuss the case.

(c)    Fabricated memories.  Not only can memories be distorted, some studies suggest fake memories can be ‘implanted’ by suggestion.  For instance, in one study, people were shown a digitally altered photo of them flying in a hot air balloon.  Despite the fact this never happened, some participants reported wholly or partly fabricated memories relating to this fictitious balloon ride.

(d)        The impact of retelling on subsequent recall.  Since memory is a dynamic process, it is unsurprising that our own biases can play a powerful role in how we remember.  Every time we retell a story, there is a risk our biases become encoded in the memory itself.  Obviously in an arbitral context, witnesses often have skin in the game.  This might make witnesses more vulnerable to this issue.

3          What to Do About Those Fickle Memories?

Part V of the Report contains detailed suggestions for how to ameliorate the limitations of memory in an arbitral context.  The Report distinguishes between strategies which might be employed by in-house counsel and by external counsel.  While these recommendations are targeted at in-house and external counsel, they are relevant to any participant in an arbitration.

In house counsel have significant power to influence accurate recall because they are among the first to interact with witnesses.  They might employ various strategies, described at paragraph 5.5.

  • Encourage witness to present their own recollection when interviewed by external counsel. Even if the evidence is adverse, it provides an opportunity for the external counsel to fully evaluate the evidence and promotes accuracy.
  • Where possible, counsel should meet witnesses individually and limit interviews to those persons necessary to conduct the interview. Meeting with groups of witnesses can cause memory contamination.
  • Counsel should discourage witnesses from discussing the matter amongst themselves. This addresses the risk of memory contamination.
  • The sooner witness evidence can be identified and preserved, the better. Several steps can promote this.  First, establish procedures to record notes at the time events happen.  Second, external counsel should become involved promptly once the matter becomes contentious.   Third, arrange witness interviews early.  Fourth, provide prospective witnesses with guidelines designed to reduce the risk of confabulation or false memory creation.

External counsel representing the witness can also take steps to address memory issues.  Various strategies are outlined at paragraphs 5.6-5.10 of the Report.

  • Keep accurate records of interviews. If possible, a second person can attend the interview to make detailed notes or consider recording the interview in some way.
  • Take steps to relax the witness. First, you can remind them it is normal to forget certain details and that if they do not know something, they should simply say so.  Second, the witness should be encouraged to mention when they are relying on an assumption rather than something they personally remember.  Third, draw their attention to the distinction between things they actually remember and what they have been told by others about what happened.  If they are relying on someone else’s memory, they should simply say so.
  • Determine what the interviewee has already told other people in their efforts to remember the event.
  • Piece together witness’ conduct since the event. You might ask them who they communicated with, how often they communicated, what documents were seen and created in the course of correspondence.
  • Try to avoid leading questions. If you’re looking for the unvarnished truth, neutral questions are preferable.  For instance, “How mad did that incorrigible brute get when you asked him about his receding hairline?”  That’s a leading question which suggests the scope of the discussion.  A more neutral phrasing might be “How did the discussion at the meeting progress?”
  • Allow the witness to tell their story in full. In particular, there are a few things to avoid.  First, try not to interrupt.  Allow the witness to explain themselves in their own words fully before you direct their attention to specific issues.  Second, try to avoid positive or negative feedback.  In other words, don’t tell the witness that you agree or disagree with their story.
  • If you feel like you need to summarise their response back to them, stop and think. There is a risk you might distort their version in your summary.  If you do want to summarise, try to use their words rather than inserting your own.
  • If the witness gives you an unclear or incomplete answer, the safest course is simply to ask the question again.
  • Inundating the witness with unnecessary extraneous information can distort the witness’ version of events.
  • If the witness made notes at the time of the event, ask to have a copy.
  • After the interview you can tell the witness to:
    • Avoid talking about their testimony with other people; and
    • Keep notes of anything new they remember after the interview

4          Recommendations Should Not be Applied Ubiquitously

Part VI of the Report makes very clear that it is not mandating a best practice guide.  The Report is at pains to stress their proposed techniques for addressing memory are not to be applied ubiquitously without regard to the specific circumstances of the arbitration.  The Report elaborates on their reasoning at paragraphs 6.4 and 6.5. Nevertheless, in the right context, we have no doubt the ICC’s recommendations will prove a valuable guide to navigating witness memory at your forthcoming arbitration.




Minoshi is a Special Counsel in the Dispute Resolution and International Arbitration Team based in Perth.  Minoshi specialises in construction disputes, acting for both principals and contractors across a wide sector of clients in the energy, infrastructure mining and transport sectors.  Minoshi is regularly on the hunt for Perth’s best fried chicken, ice-cream and bubble tea when she isn’t binging on a true crime or K-drama on Netflix!

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