DRAFTING WITNESS STATEMENTS: "4 GOLDEN RULES" DIRECTLY FROM THE JUDGES WHO HEAR THE CASES
I have recommended before that litigators read the guidance for litigants in person. It provides useful insights for most litigators and covers most aspects of civil procedure. It is written by six Circuit Judges so it can be safely assumed that all guidance comes directly from the front line of litigation. This applies to the section on drafting witness statements. I have extracted the section on drafting witness statements below and highlighted the most apposite parts for those responsible for drafting witness statements.
A SALUTARY JUDGMENT: LITIGANTS IN PERSON CAN BE BETTER AT DRAFTING THAN SOLICITORS
In the comments section to this blog there are several comments on the ability of litigants in person to draft their own witness statements. I only have limited experience of dealing with litigants in person. However the following judgment makes salutary reading for all professional litigators.
HH Judge Oliver-Jones QC (Smith –v- J&M Morris (Electrical Contractors) Limited.  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”.
GUIDANCE TO LITIGANTS IN PERSON (THAT ALL LITIGATORS SHOULD READ).
“C. Content of Witness Statement
11.7 As a litigant in person preparing a witness statement for yourself of any of
your witnesses 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.
11.8 (1) 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.
11.9 (2) the factual issues in the case should all be dealt with.
By the time witness statements are prepared and exchanged (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 (see chapter
6) 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.
11.10 (3) the 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.
11.11 (4) 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
solicitors 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 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’s own words, and that it is
checked very carefully before it is verified by the witness as true.
11.12 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.
11.13 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.
11.14 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.
11.15 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 solicitors to attach to the
witness statement copies of all documents referred to in that witness statement. 67
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’.”