Construction intentions can be lost in the repeating
The Law Faculty at Warwick University rightly enjoys an outstanding reputation for teaching 'law in context' as opposed to the traditional 'black letter' law. During my time there as an undergraduate, lecturers strove to make law relevant to the context in which it was used, rather than teaching it straight out of a textbook.
Some subjects, such as the law of trusts, presented more of a challenge than others. Part of the programme involved a ground-breaking 'legal practice' course whereby unsuspecting students were, via the local free legal advice centre, foisted upon the distressed of Leamington Spa (or was it the other way around? ).During the first such advice session, I went carefully through a prepared introduction about how advice would be given under the supervision of university law lecturers. The client then explained, equally carefully, how he had been dismissed as a security guard by the university and how he wanted redress for unfair dismissal.
There then followed what can only be described as a steep learning curve, during which, armed with a useful text entitled, So you've been sacked, I took my own university to the industrial tribunal. Once there, with some trepidation, I was obliged to crossexamine high-powered university officials about a letter which had appeared by unexplained means, saying something to the effect that the university would be better off dismissing this chap and 'taking its chances with the tribunal'.
Incidentally, it had refused to disclose this letter on the somewhat unusual grounds that I was a student. But that is another story.
I was reminded of the legal practice course recently as I ploughed through the contemporaneous documents in a sizeable civil engineering claim, trying to figure out what actually happened on this contract. One of the exercises we students carried out was to team up in pairs, each armed with wooden building blocks. One student would build something and the other one would copy it, easily enough. Then one student put together another combination, out of sight of the other, explaining what they were doing as they went along. The other member of the team tried to replicate the construction from the commentary. The constructor was allowed to look at the replica and try to correct errors by explanation, not demonstration. This was harder work but manageable. Next the constructor gave a running commentary but was not allowed to witness the replica. The results were often surprisingly off target. Finally, the teams reconvened as groups of three: one constructor, one commentator and one replicator. The replicator was obliged to construct the replica, relying only on the third-party commentary.
Neither the constructor nor the commentator were able to see the replica as it was produced.
Needless to say, the replica seldom bore any resemblance to the original construction. So, apart from being a mildly diverting party game, what was the purpose of all that?
When presenting a case, the parties endeavour to recreate in the mind's eye of the tribunal - be they judge, arbitrator, or whatever - a clear impression of events of some time previous. Neither the tribunal nor the advocates were there at the time, and so they have to build up a picture from the building blocks of evidence, mainly the contemporaneous documents and the statements of the witnesses who were involved.
Mastering the documents is usually the first forensic step towards reconstructing events of the past. For, as my pupil master once explained, documents do not lie, lose their memory or go back to Ireland. Although this may be true, not everything is recorded in a document and it is often furious debate about what innocuous phrases actually mean. As with the group of three students, these building blocks pass through the hands of those presenting the case (the commentator) and the tribunal hearing the case (the replicator). And, as with the final group, there is no way of knowing what image is being created in the replicator's mind - until you get judgment that is.
At the moment I am occupying a virtual world of nearly half a decade ago, on an exposed site in a chilly part of the country. I am wondering what the arbitrator will make of it all.