THE PROCESS OF TAKING WITNESS STATEMENTS: GUIDANCE FROM ACROSS THE BORDER
There is relatively little guidance to litigators on the process of taking witness statements. What are appropriate questions and, to what extent, can the witness be “guided” by the lawyer. These are difficult and sensitive topics which have been considered many times on this blog. I have found some useful guidance from the Scottish courts in a guide prepared by the Commercial Judges on the use of witness statements and affidavits in commercial actions.
Scottish procedure is obviously different to (and I dare say superior to) procedure in England and Wales. However it is clear that the practice of using witness statements is now well established and the Scottish judges make some useful observations on the process of taking witness statements.
“The content of the affidavit or witness statement
The following principle must be respected: the statement should be the evidence of the witness and should cover only those matters to which he can properly speak.” (emphasis added).
THE PROCESS OF TAKING THE STATEMENT
There then follows a useful series of steps in relation to the taking of the statement.
“The role of legal advisers or other parties in the preparation of the statements
The purpose of a statement is to record the evidence of a witness. The court does not expect to receive a document which is in large measure framed by lawyers and which uses language which the witness would not use. Words should not be put into a witness’s mouth. If a party produces such a document as the evidence of the witness, it is likely that it will receive little weight from the court and it may in some circumstances significantly damage a party’s case. Equally, if it appears that a witness has been improperly tutored in his evidence, the court is likely to discount his evidence. In preparing such statements, legal advisers should bear in mind that a witness may have to justify on cross-examination things contained in his statement.”
WHAT THE LAWYERS CAN PROPERLY ADDRESS AND DISCUSS WITH A WITNESS
“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.”
CARE NEEDS TO BE TAKEN AND THE WITNESS MUST BE GIVEN TIME TO CONSIDER THE STATEMENT
“We expect that care will be taken to ensure that the witness’s testimony is accurately represented. He is also to be given the opportunity to consider carefully what the draft statement says and to confirm its terms or instruct its amendment before he is asked to sign the statement. The legal advisers should also inform him that he may be cross-examined on his statement in court.”
THIS MAY APPEAR OBVIOUS: BUT…
Read the guide to Litigants in Person written by a number of experienced Circuit Judges:
“Too often(indeed far too often) witnesses who have had statements prepared for them bysolicitors tell the Judge that matters in the statement are not correct; they say(all too believably) that they simply signed what the solicitor had drafted forthem without reading it through carefully and critically. This reflects badly notonly on the witness, but on the whole case presented by the party calling thewitness. Accordingly, it is most important that, as far as possible, you makesure that each witness statement is in the witness’s own words, and that it ischecked very carefully before it is verified by the witness as true.”
I have now catalogued numerous cases where judges have complained about the nature of witness evidence put in front of them. The problem appears to be more acute in commercial cases. The Jackson Report recorded that witness statements generally worked well in personal injury cases but caused more problems in commercial cases. We have well documented examples of lawyers being told to “curb your enthusiasm” as documented by Professor Richard Moorhead. The wording from the judgment of Peter Smith J in A & E Television Networks LLC -v- Discovery Communications Europe Limited  EWHC 209 (Ch):
- This case demonstrates the need for solicitors preparing witness statements to curb their enthusiasm in seeking to obtain the best for their clients. It must not be forgotten that witness statements are merely a replacement for evidence which a witness previously used to give live in chief. It is intended to be the factual evidence of the witness in his own words. Too often witness statements are drafted by solicitors who put words in their mouth to achieve a better result. Witness statements can then be changed from drafts to a later stage without the witness understanding the significance of the change. An extreme example of this kind of activity was highlighted by me in a statement I made in the Farepak case. In this case too it is clear that statements were “finessed” to present them in a more favourable light from AETN’s point of view without the witnesses understanding what was happening. This is unfair to witnesses. They should not be required to justify witness statements when the true effect of them is not understood by them.
- Further when preparing hearsay statements it is even more incumbent on the solicitors not to manufacture things to put that evidence in the best light for their clients. The Court will not have any opportunity to explore that evidence with live witnesses and the duty on the solicitors is therefore even more clear to confine witness statements to what the witness would have said in his own words had he or she been giving evidence.
- Equally I do not think it is appropriate for a witness to have his statement taken from him when he does not realise that it is being taken from him for the purpose of giving evidence. That too is unfair. Further when such a person objects to giving evidence it cannot be appropriate in my view for that statement which has been taken down to be served up as a hearsay statement without reference to that potential witness (the more so when he has said he does not want to give evidence). Without the investigations in cross examination in this case none of the actual defectiveness of the hearsay statements would have come to light.
FAREPAK AND FAIR PLAY
The detailed criticisms in Farepak have been considered before on this Blog. The guidance given in that statement is instructive and should be read by every litigator. I select just a flavour of it here. The judge had made an order that the witnesses identify which of the (voluminous) exhibits they were going to refer to.
“6. Absent that order, however, the only way in which the defendants could have seen the relevance of the documents was to put them to each witness and ask the witness why it was included in the exhibit. I suspect that that exercise would have revealed complete bafflement by most of the witnesses because it was plain as the evidence evolved that the witnesses clearly did not understand, to a significant degree, what was the purport of their evidence, in my view, and why things were said. This is very dangerous. In addition they had little comprehension of the voluminous exhibits
47. The courts have regularly reminded parties that the purpose of witness statements is to replace oral testimony. It is not to rehearse arguments, it is not to set out a case and whilst it necessarily has to be drafted with the collaboration of lawyers, it should not be a document created in the language of lawyers by the lawyers, because the lawyers do not go into the witness box and defend it. This is unfair to defendants, as this case showed. It is also unfair to the witnesses.
48. I had, in addition to Mrs Burns’ evidence, evidence from seven witnesses who were there to the events. All of those witnesses in my view gave honest evidence. I do not believe that they were dishonest, but it turned out that in each case the emphasis given in certain vital aspects of their affidavit evidence was slanted against the defendants unfairly and in each case all of the witnesses ultimately, in one way or another, acknowledged this, some even apologised, and some withdrew paragraphs of their evidence. This was all in the light of being confronted, as regards those paragraphs, by contemporaneous evidence which they had not been shown, or the importance of which had not been drawn to their attention, or some of which they did not even know about, in some cases even though they were contained in exhibits to their own affidavits.
49. This is not the way to produce evidence. It is, as I say, unfair both to the witnesses and more particularly to the defendants…[there is then a detailed examination of the evidence]
58. In my view, for the reasons I have briefly mentioned, there are serious questions as to how this affidavit evidence came to be assembled. This can be gone into in more detail, and I suspect will be on the costs application, but there were instances, for example, of the following. First, witnesses were only being shown selective parts of defendants’ affidavits; second, witnesses were not being shown relevant documents; third, as I have already said, large exhibits were assembled without the witnesses either ever having read them or even having understood the significance of them. To give, as I think it was, Mr Kelly 700 pages and then have him sign the affidavit a week later was a daunting task by any stretch of the imagination. 700 pages is the size of a novelette and to ask him to see and analyse the significance of those documents in relation to events six years ago is a daunting task.
59. Fourth, significant paragraphs were drafted in all the affidavits which appeared to be critical of the defendants’ conduct. The examples are legion and they were all exposed extensively in the skilful cross-examination of the Secretary of State’s witnesses.”
SO “PARTISAN” DRAFTING OF WITNESS STATEMENTS IS BOTH DANGEROUS AND COUNTERPRODUCTIVE
In many cases, particularly commercial cases, I suspect witness statements could be much shorter. Witnesses often attempt to “argue” the case in their statements or give “evidence” as to matters upon which they have no knowledge. In the vast majority of witness statements in relation to relief from sanctions that I see there are countless citations of authorities. The difference between evidence and submissions is poorly understood.