WITNESS STATEMENTS: NOT ONE BUT TWO "ESSENTIAL CHECKLISTS"
Earlier posts have documented how these checklists were made. The prequel to the essential checklist sets out matters that practitioners have to watch. Here I set out the checklist prepared by the group “Stating the Obvious”. It is no surprise that their checklist was concerned with the basic mechanics of getting hold of witnesses. I have a second checklist from our Canadian cousins which helps with the structure of a witness statements.
STATING THE OBVIOUS
WITNESS EVIDENCE AND WITNESS STATEMENTS
1. Complete witness details forms at outset. Make sure the form records the witnesses address and telephone number.
2. Send a questionnaire to all possible witnesses. Record in the diary a date to follow up the questionnaires with a telephone call or home visit.
3. Consider location of witness and instruct agents.
4. Obtain a signed statement from all the witnesses prior to issue and ensure it is their own evidence – check they are still at the same address post issue.
5. Diarise date for service of witness statements in central diary, including countdowns 6 weeks, 1 month, 2 weeks. If it is clear that witness statements will not be available make an application for an extension of time in advance of date of service.
6. Prepare a full letter and send to clients and witnesses.
THE LAW SOCIETY OF UPPER CANADA: CHECKLIST ON AFFIDAVITS
The Law Society of Upper Canada has a whole series of checklists as a resource for practitioners. Included amongst these is a checklist on preparing affidavits. Some of the guidance is specific to Canadian procedure, however there are general points which assist in the preparation of any statement. After point 1 “Gather the information you will need” it is recommended.
2Determine the purpose of the affidavit
- Determine the purpose for which the affidavit is being sworn, and consult the applicable statute and/or rules for any requirements that may apply.
- Read relevant case law to develop a complete understanding of how the applicable statute and/or rules have been interpreted by the courts. Note any evidence that should be set out in the affidavit to satisfy the applicable legal tests.
3Interview the deponent
- Interview the deponent to obtain an accurate version of the story and to identify any key documents.
- Review any relevant paper as well as electronic documents in the deponent’s possession and control, including contracts, receipts, written correspondence, emails, invoices, etc.
If the deponent is cross-examined, the examining party may be entitled to production of this material for the purpose of cross-examination.
- Determine the source of the deponent’s knowledge of the events in question, noting any points for which the deponent relies on information received from others rather than the deponent’s personal knowledge.
- If the deponent is relying on information from others, obtain the identities of the people who provided this information.
- If the deponent is relying on other people’s information with respect to important or contentious points, consider obtaining affidavit evidence from these people directly rather than relying on the deponent’s information and belief.
- Advise the deponent that the deponent may be cross-examined on any of the statements made in the deponent’s affidavit.
(I cannot overemphasise how useful a site this is to all types of lawyers).