DRAFTING WITNESS STATEMENTS : THE QUESTIONS YOU ASK WILL DETERMINE THE ANSWERS YOU GET: EIGHT CRUCIAL POINTS ON EVIDENCE
Earlier posts on witness statements have dealt with the manner of drafting and presentation. However one overlooked aspect is the way that witnesses are questioned. The questions asked, and the way questions are asked, will determine the evidence that goes into the statements.
ASKING LEADING QUESTIONS
There are a declining number of practitioners who will have seen examination in chief in a civil case, let alone carried out this task. Witness statements now stand as the evidence in chief. It used to be a hard task. “Proofs of evidence” could be fairly perfunctory (if they existed at all). However the most difficult problem was the fact that you could not ask “leading questions”. This could lead to interesting results. A central fact that a party had told you about clearly in conference 10 minutes earlier could, sometimes, not be teased out of them at all.
However the rule against asking leading questions was important. It meant that the judge was hearing the witnesses’ evidence rather than a response to a number of loaded questions coming from the advocate.
This practice, of not asking leading questions, is an essential tool in a litigator’s armoury. It means that the evidence is far less likely to be “corrupted”. Here I don’t mean deliberately corrupted but that a witness, who is anxious to help, could inadvertently agree with matters which, on closer examination, are not correct.
A GRAPHIC EXAMPLE
There is much controversy about the statements that were taken after the Hillsborough disaster. That controversy is on-going. However one significant matter is the way that the police actually asked questions. The best example of this I have seen is Brian Reade, writing in the Mirror, on his experience of having his statement taken by the police after the disaster:
“Virtually all the questions were slanted towards finding out how culpable the fans were: “What time did you arrive at the ground? Did you witness any disorder? Did you witness any consumption of alcohol in the streets? Did you witness alcohol being brought into the ground or consumed inside the ground? Did you witness any act by supporters which obstructed police, stewards or medical persons? Were you subjected to any threats or violence? Did you witness anything you consider to be a criminal act by any person?”
Not a single question about how many police were outside the ground, the state of the stadium, whether any stewards filtered people away from the central Leppings Lane death pens, whether police officers responded to dying fans screaming to be let out of the cages , or if I saw any medics helping casualties.
Just a set of questions geared entirely towards the behaviour of people, like myself, whose only fault was that we saw fellow fans die.”
See the whole article at http://www.mirror.co.uk/news/uk-news/brian-reade-hillsborough-witness-statement-2301438
TAKING STATEMENTS WITH AN “AGENDA”
It can be seen that there was clearly an agenda when those statements were being taken. The questions were loaded, not open ended, they were working towards a pre-existing view of what happened.
In a similar manner the dangers of having a set “checklist” of questions is clearly seen in the judgment in the contempt of court case of Motor Insurers Bureau –v- Shikhell  EWHC 527 (QB).
THE FACTS IN SHIKHELL
A contempt of court action was being brought against Mr Shikhell for false statements he made in a personal injury action. He had given evidence that he could not play football and was severely disabled. In fact he played regularly, had played every match for his team that season and had been “man of the match” several times. The proceedings were also brought against his father and two “character witnesses”, a neighbour and a team mate.
THE WAY THE STATEMENT WAS TAKEN
The neighbour who gave evidence had made a statement that Mr Shikhell was “unhappy because he could not play football as he did before.” There was considerable debate about what this meant – that he was playing to lower standard – or could not play at all?
The judge considered the way that the statement was taken
“I am also mindful of the evidence I have heard from [a trainee solicitor] She was a trainee solicitor in her first seat, a matter of weeks into that seat, when she was asked by her principal to proof Mrs Glancy and Simon Fennell. She took their statements over the telephone and she was provided with a list of questions, drafted by a more senior fee earner, to use when discussing the case with Mrs Glancy and Simon Fennell. Interestingly the drafting of perhaps the most crucial question is ambiguous: “Did they play football with James? If so, has he expressed sadness at not being able to play to the same level and ability as before the accident?” [22/942]. The question is ambiguous in that it might suggest that James Shikell was in fact playing football, albeit not at the same level and ability as before the accident, or it might suggest that he is not playing at all. A straightforward question asking the witness to confirm whether or not, to his or her knowledge, James Shikell was playing football might have averted the problems which subsequently arose. A witness who claimed to have the requisite knowledge should then have been asked the basis for that knowledge. I make no criticism at all of [the trainee] who was undoubtedly doing her best and following the list of questions provided to her. However, she was plainly very inexperienced. The drafting of the statement is extremely poor in that it fails to tie matters to particular dates and contains significant amounts of opinion evidence which is inadmissible for a witness of fact. It is undoubtedly the case that the drafting of the Witness Statement reflects the questions asked in that list.”
I HAD A LITTLE LIST
It can be seen that:
- The actual taking of the statement was delegated to the most inexperienced level.
- The person taking the statement was provided with a list of questions.
- Those questions were, on some occasions, leading questions.
- Many of those questions were about matters of opinion.
The key question, which led to Mrs Glancy spending five days in the High Court, was “ … has he expressed sadness at not being able to play to the same level and ability as before the accident.”
This led to her statement reading “James … is sad that he is unable to play football as he used to…”. This was one of the passages which formed a count on the contempt of court charges.
THE DANGERS OF LEADING QUESTIONS
This highlights the dangers of leading questions. The judge found that “It is undoubtedly the case that the drafting of the Witness Statement reflects the questions asked in that list”.
WHAT HAPPENED TO THE WITNESSES?
Mr Shikhell and his father were imprisoned for 12 months. Mrs Glancy was acquitted (but had to pay a part of her own costs). One witness, the judge found was totally honest. That witness was found to have given honest evidence to the solicitors, but this did not find its way into the witness statement (paragraph 149 of the judgment which is available on Lawtel). As a result the statement he signed (but did not read thoroughly) gave a misleading impression. Although he was totally honest he was found in contempt of court (and fined £750.00)
“That insofar as the court finds that a Respondent verified a document by statement of truth without having read the same, that Respondent is in contempt of court. By his own evidence in the witness box [the witness] admitted he did not read the statement thoroughly before signing it, adding he possibly skim read it. He told me he did not realise the importance of the document or the significance it could have. Nor did he ask anyone. He said that he now reads all documents very carefully. No doubt these proceedings have been a salutary lesson to him.”
(This is not in the report, however I represented the witness that was acquitted and was I present in court at the sentencing hearing).
EIGHT CRUCIAL POINTS ON TAKING WITNESS STATEMENTS
(1) Be careful who takes the statements
It is a pity that the taking witness statements is all too often a task delegated to the lowest level. As the Shikhell case shows that the drafting of even the most peripheral statements can lead to major problems for those who make them.
(2) Be wary of leading questions
There are good reasons why leading questions are not allowed when asking questions in evidence in chief. In the Shikhell case we can see how “… has he expressed sadness..?” became “James is sad…”. As we have seen these words then went on to form a count against the witness in the contempt of court proceedings.
(3) Learn the law of evidence
A more fundamental question relates to the very question “… has he expressed sadness…” itself. Why was this asked? A witness is called as a witness of fact. The claimant’s state of mind is not properly a matter for a “character” witness at all. As the judge observed the statements went well into the realm of opinion. They would not have any weight at all.
(4) Character witnesses are hardly ever useful
The other question is why the witnesses in the Shikhell case were needed at all? In a case where there are batteries of experts it is difficult to envisage a statement from a family friend having any effect on the damages award. In fact it is invariably true that additional witnesses cause additional problems.
(5) Remember your drafting of a witness statement could end up with the witness in jail
This is the most salutary lesson of all. These two witnesses in the Shikhell case were in grave danger of going to jail as a result of making witness statements. One witness was fined £750 (and ordered to pay 5% of the MIB’s costs) as a result of failing to read the witness statement that had been prepared. That statement did not properly reflect his evidence. Although responsibility for this clearly lies with the witness who signed the statement it has to be accepted that there are many people who will readily accept and sign a document sent to them by solicitors.
(6) Use the useful guidance in the Chancery Guide
The best advice on drafting witness statements comes from the Chancery Guide. It is worthwhile printing a copy out for every fee earner involved in taking statements. http://www.chba.org.uk/for-members/library/practice-directions-court-notices/chancery-guide-updated-october-2013 (See Appendix 9 – 116).
(7) Take heed of the reported cases.
Inevitably reported cases give some indication of what not do to.
In Alex Lawrie Factors Ltd -v- Morgan  The Times 18 August. The Defendant was disputing a claim by the Claimant on the grounds that when she signed a document she did not understand its full effect and should have received independent advice. Her affidavit went into great detail in relation to the case law involved and explained how these cases applied to her. The trial judge concluded that a witness with such a detailed knowledge of the case law must have understood the position and gave judgment to the claimant. On appeal it became clear that the defendant had little input into the drafting of her statement and that, in fact, she had difficulties with basic literacy. Lord Justice Brooke observed that:-
“This case is a very good warning of the grave dangers which may occur when lawyers put into witnesses’ mouths, in the affidavits which they settle for them, a sophisticated legal argument which in effect represent the lawyer’s arguments in the case to which the witnesses themselves would not be readily able to speak if cross-examined on their affidavits. Affidavits are there for the witness to say in his or her own words what the relevant evidence is and are not to be used as a vehicle for complex legal argument. Those considerations apply just as much to statements of truth under the Civil Procedure Rules as they do to affidavits.”
The judgment of H.H. Judge Dean Q.C. in E.D and F. Man Liquid Products Limited -v– Patel  1706 EWHC (QB) provides further guidance. He was concerned that a lengthy statement prepared by a solicitor contained pages (and pages) of opinion and comments on the law.
“Witness statements are not the place for argument. It means you have to read everything twice…. A lot of it is tendentious comment which is bound up with fact. I think this witness statement is an example of what a witness statement should not be whether in the Commercial Court or anything else. It is a tendentious advocate’s document. I am minded to disallow the cost of it actually… Look how long it goes on for. It goes on for 41 paragraphs. That is just a solicitor giving information on what his client has said. He expresses a reference to his client’s belief which is not only irrelevant but inadmissible. I think that this is a statement of an enthusiastic solicitor who wishes he was an advocate much of this. It adds to the time of the hearing and it adds to the time of preparation. Here we have the Commercial Court practice which says that witness statements must comply with the rules. They should be as concise as the circumstances allow. They should not engage in argument. They must indicate which statements are made from the witness’s own knowledge and which are from other sources and state what is the source of the information and belief.”
(8) Do not follow this example
The following is a paragraph from a witness statement taken in a case I was involved in several years ago.
“I hold the Defendant wholly responsible for the accident. They failed to brake steer or otherwise control their vehicle so as to avoid a collision and drove into collision with the claimant’s vehicle when by the exercise of proper skill and care they could have avoided doing so.”
The witness (an I.T. professional) did not talk in that kind of language. This part of the statement was clearly manufactured by the solicitor. It made for extremely entertaining cross-examination. It is a pity because it is part of a statement that was not needed; it was counter-productive and positively harmful to the claimant’s case. There was no doubt that this was a passage inserted by the lawyer. It made interesting cross-examination material.
- For the rules on witness statements see http://civillitigationbrief.wordpress.com/2014/01/10/drafting-witness-statements-that-comply-with-the-rules-a-checklist-too-important-to-ignore/
- genius of John Munkman and witness statementshttp://civillitigationbrief.wordpress.com/2014/01/08/drafting-witness-statements-and-the-genius-of-john-munkman/
- See the essential guidance on drafting witness statements at http://civillitigationbrief.wordpress.com/2013/11/09/drafting-witness-statements-essential-guidance-from-an-authoritative-source-that-every-litigator-should-read/
- The importance of drafting witness statements that comply with the rules http://civillitigationbrief.wordpress.com/2013/11/04/the-importance-of-drafting-witness- statements-that-comply-with-the-rules/
- Witness statements & the grounds for the witnesses’ belief http://civillitigationbrief.wordpress.com/2013/11/07/witness-statements-complying-with-the-rules-2-the-grounds-for-the-witnesses-knowledge-or-belief/
- What are witness statements for? http://civillitigationbrief.wordpress.com/2013/08/23/what-are-witness-statements-for/
- Two articles on witness statements are at http://civillitigationbrief.wordpress.com/2013/07/11/civil-evidence-and-witness-statements/
- The lawyer as witness http://civillitigationbrief.wordpress.com/2013/12/23/drafting-witness-statements-and-the-lawyer-as-witness/
- The Court cutting down the number of witness statements is discussed athttp://civillitigationbrief.wordpress.com/2013/12/30/can-the-court-cut-down-the-number-of-witness-statements-maclennan-v-morgan-sindall-considered/