The Art of Drafting Witness Statements
The art of drafting
witness statements is yet another skill advocates should properly learn.
The dictum below presents a very unfortunate situation in as far as
drafting witness statements is concerned.
HH Judge Oliver-Jones QC (Smith –v- J&M Morris (Electrical Contractors) Limited. [2009] EWHC 0025 (QB):
“I
have often had occasion to remark about the failure to comply with the
CPR so far as witness statements are concerned, as well as the obvious
lack of skills of witnesses, and those acting for litigants, in
formulating them. It is not infrequently the case that witness
statements prepared by litigants-in-person are superior in form and
substance to those prepared by solicitors or their agents based upon
questionnaires, interviews (often by telephone) or correspondence with
witnesses. It is often the case that witness statements, drafted by
solicitors or their agents in good faith ( I exclude, of course, any
case of deliberate intent to deceive by a witness or drafter), are
signed or otherwise accepted by witnesses without any or any proper
consideration of their accuracy, completeness or even truth”.
Following that dictum, “4 GOLDEN RULES” have been suggested in drafting witness statements. Let’s deal with these rules now.
Any one preparing a witness statement of any of your witness, you should take care to observe 4 ‘golden rules’:
1) the witness statement should ‘tell the story’ in chronological order;
2) the factual issues in the case should all be dealt with;
3) the witness statement is a statement of fact, not opinion; and
4) the witness statement must be true.
Golden Rule 01:
The witness statement should ‘tell the story’ in chronological order
You
should not forget that you (almost certainly) will have personal
knowledge of the events covered by the witness statement. The Judge will
not. It is important both that you cover all the necessary background
and that you do so in chronological order. Your aim should be to get
your side of the story across to the Judge. To do so draft the statement
in clear language. A statement which does not cover the material in
chronological sequence is likely to confuse. If, as advised, you have
prepared a chronology this will help you when preparing your witness
statements. But discretion is required. Setting out the necessary
background is very helpful, but including a wealth of material that is
not essential is likely to detract from the important parts of the
statement.
Nevertheless it is necessary to include
everything that might be important because the Judge may not allow you
to give evidence of additional matters which could have been, but were
not, included in your witness statement or the witness statements of
your witnesses. Use your discretion. If in doubt include the material in
the statement.
Golden Rule 02:
The factual issues in the case should all be dealt with
By the time witness statements are prepared and exchanged, most times;
(i) the pleadings (statements of case) will be completed and
(ii)
discovery and inspection will have taken place. You will be able to
work out what issues of fact exist between you and your opponent.
Review
those issues in the light of any new documents thrown up by disclosure.
The sensible litigant prepares a list of these issues, and makes sure
that all the issues are covered in his witness evidence. Not every
witness will be able to deal with every issue, but every witness who can
deal with an issue should cover it in his statement. If any issue is
not covered by a witness statement you should do all you can to find a
witness who can deal with the issue in question.
Golden Rule 03:
A witness statement is a statement of fact, not opinion
A
witness statement must be confined to statements of fact, without any
expression of opinion. Only expert witnesses are permitted to give
opinion evidence. Occasionally an opinion is included in a witness
statement. Once this is identified the Judge will have no difficulty in
putting a line through it both metaphorically and practically so you do
not have to worry if the odd opinion slips into one of your witness
statements. However, unguarded opinions from yourself or your witnesses
can sometimes affect your case adversely.
It
is better to stick to the rules and make sure that there are no
statements of opinion in any of the witness statements you rely on.
Golden Rule 04:
The witness statement must be true
In
all but the exceptional case each witness’s statement will “stand as
his evidence in chief”. By this is meant that, provided the witness (on
oath or affirmation) confirms the truth of his statement when he is
called to give evidence at trial, the statement will form part of the
evidence in the case. It is critical therefore that you make sure that
the maker of each statement, and yourself as the litigant on whose
behalf the maker is being called to give evidence, checks the statement
carefully (cross-referring to the documents and other witness statements
as necessary) before signing it as true. Too often (indeed far too
often) witnesses who have had statements prepared for them by counsel
tell the Judge that matters in the statement are not correct; they say
(all too believably) that they simply signed what the counsel had
drafted for them without reading it through carefully and critically.
This reflects badly not only on the witness, but on the whole case
presented by the party calling the witness. Accordingly, it is most
important that, as far as possible, you make sure that each witness
statement is in the witness’ own words, and that it is checked very
carefully before it is verified by the witness as true.
2.3 Duty of Counsel Preparing a Witness Statement
Counsel
in civil proceedings are typically involved in preparing witness
statements. However, the courts have emphasised that a witness statement
must, so far as possible, be in the witness's own words: see e.g.
Aquarius Financial Enterprises Inc. v Certain Underwriters at Lloyd's
[2001] 2 Ll Rep. 542 at 547. When settling witness statements, great
care must be taken to avoid any suggestion that;
a) the evidence in the witness statement has been manufactured by the legal representatives; or
b) the witness had been influenced to alter the evidence which he or she would otherwise have given.
The
legal advisers, including – where appropriate – counsel, can consider
the draft statement to ensure that the witness has covered the relevant
matters to which he can speak. They can also seek to clarify ambiguous
statements within his evidence when his statement is in draft, and seek
his comments on documents and other materials which might appear to
raise questions about the accuracy of his recollection. Where there are
matters, which the legal advisers think he might be able to address,
they can properly ask him whether he can give evidence on those
subjects. They can show him documents which he might have seen at the
time, and if he had seen them, ask for his comments on them. Where the
witness comments on documents which he had not seen at the relevant
time, the fact that he had not seen them then should be made clear in
his statement.
You should also take note of the following guide;
Guide 01:
Preparing a good witness statement is hard work and time consuming
You
should never leave it to the last minute. Unless the maker of the
statement has an exceptional natural fluency, you will probably find
that a statement has to go through several drafts before it reaches a
state where it covers all the necessary material in a clear manner, and
the witness is confident that it is all accurate. In this regard a word
processer is very useful. Never forget that at trial you will be
questioned on your witness statement and your witnesses on theirs. Get
it right. Do not leave hostages to fortune.
Guide 02:
Where it is sensible to do so, you should divide the statement into separate sections each with its own heading or sub-heading.
For
example in a building claim, if there are problems with the roof, and
with the windows, and with the doors, the evidence relating to the roof
could be put under the heading “Roof”, and the evidence about the
windows and doors under separate headings “Windows” and “Doors”. Each
section will probably be best dealt with in chronological sequence. The
fact that the chronologies of the individual sections will overlap will
not matter; the Judge is likely to consider the evidence under each
section separately.
Guide 03:
It is essential that every witness statement is divided into numbered paragraphs
These
paragraphs should not be too long, and it is very unwise to include
evidence on two distinct matters in the same paragraph. You may separate
them and present your statements in a chronological way.
Guide 04:
Attach relevant documents to your statement
A
witness statement may refer to one or more documents; it is often
important that it does. By the date of exchange of witness statements
all relevant documents should have been disclosed, but if a document not
previously disclosed is referred to in a witness statement the opposing
party may require disclosure of it. It is a common practice amongst
advocates to attach to the witness statement copies of all documents
referred to in that witness statement. This is not necessary where it is
clear what document is being referred to, and if a proper list of
documents has been served by the party it is perfectly sensible to save
the copying and refer, for example, to ‘the invoice no.35 of the
Claimant’s list of documents’ on pg. 5 of the Trial Bundle”
Guide 05:
The evidence in a witness statement must not be partial
It
must contain the truth, the whole truth and nothing but the truth in
respect of the matters on which the witness proposes to give evidence
(see Handbook; Chancery Guide 2016, Chapter 19; Queen's Bench Guide,
2016, paras. 7.9.2 to 7.9.5; Admiralty and Commercial Courts Guide,
para. H.1.)
One
should remember that “great care... must be taken in the preparation of
witness statements. No pressure of any kind should be placed on a
witness to give other than a true and complete account of his or her
evidence. It is improper to serve a witness statement which is known to
be false or which the maker does not in all respects actually believe to
be true” (Chancery Guide 2016, para. 19.6).
One
should also remember that “a professional adviser may be under an
obligation to check, where practicable, the truth of facts stated in a
witness statement if you are put on enquiry as to their truth” (Chancery
Guide 2016, para. 19.6). For example, you may be put on enquiry in
relation to witness X’s evidence, because witness Y’s evidence
contradicts it, or because there is documentation which contradicts it.
However, whilst you may be entitled or obliged to check the evidence “it
is not for you to decide whether your client’s case is to be believed”.
You
are entitled and it may often be appropriate to draw to the witness’
attention [to] other evidence which appears to conflict with what the
witness is saying and you are entitled to indicate that a court may find
a particular piece of evidence difficult to accept. If the witness
maintains that the evidence is true, it should be recorded in the
witness statement and you will not be misleading the court if you call
the witness to confirm their witness statement.
Equally
there may be circumstances where you call a hostile witness whose
evidence you are instructed is untrue. Where there is evidence which
clearly contradicts a witness it may be that the duty to not knowingly
or recklessly mislead the court comes into play, so that whilst the
questionable evidence can be put forward, counsel may have a duty also
to ensure that the contradictory evidence is drawn to the court’s
attention. In this aspect regard must be had to “knowingly misleading
the court includes being complicit in another person misleading the
court… recklessly means being indifferent to the truth, or not caring
whether something is true or false”.
Counsel
has a duty, therefore, to ensure that such notice is given if counsel
becomes aware that a witness statement contains material which is
incorrect: for example, if a client were to inform you that an earlier
statement or instruction, now contained in a witness statement, was
incorrect or untrue. However, if you only suspect or believe your
instructions (and evidence reflecting them) to be untrue, for example
because of contradictory evidence or documents, then it is not for you
to decide whether this is in fact the case.
2.4 Witness familiarization
It
is important to note that while witness coaching is prohibited, a
process of witness familiarisation is permissible and desirable, may
extend to advising witnesses as to the basic requirements for giving
evidence, in order to assist witnesses to give their best at the trial
or hearing but risking their evidence becoming anything other than their
own uncontaminated evidence.
The following approach is suggested in relation to any witness familiarization process for the purpose of civil proceedings:
a) Any witness familiarization process should normally be supervised or conducted by a counsel.
b)
In any discussions with witnesses regarding the process of giving
evidence, great care must be taken not to do or say anything which could
be interpreted as suggesting what the witness should say, or how he or
she should express himself or herself in the witness box: that would be
coaching.
c) Counsel should only approve or
take part in a mock examination-in-chief, cross-examination or
re-examination of witnesses who are to give oral evidence in the
proceedings in question if, and only if:
1) Its purpose is simply to give a witness greater familiarity with and confidence in the process of giving oral evidence;
2) There is no risk that it might enable a witness to add a specious quality to his or her evidence; and
3)
In conducting any such mock exercises, counsel does not rehearse,
practice or coach a witness in relation to his/her evidence.
Tags : Trial Advocacy