ADVOCACY THE JUDGE’S VIEW VII: WITNESS STATEMENTS – SHORT AND SWEET IS BEST

We have already looked once this week at a judge’s viewpoint on the drafting of witness statements. In terms of advocacy they are crucial.  The rules only allow the witness to give additional evidence in exceptional circumstances.  Many cases that go to trial are, in essence, about the credibility of the witnesses and accuracy of witness recollection. This highlights the fact that all of those involved in the civil litigation process are advocates, in terms of being responsible for producing credible material that will persuade a judge (or persuade your opponents to settle). The aim of this series is to persuade you to read the original article.  Here we look at guidance given by a judge in relation to drafting a witness statement.

“Lawyers want the statements to capture all the relevant facts in a way which is persuasive and compelling to a judge. In an attempt to achieve this, it has become common for parties to serve long, adversarial witness statements which often amount to thinly veiled advocacy. Whether judges view such witness statements as helpful or appropriate is another matter.”

THE JUDICIAL VIEW OF WITNESS STATEMENTS

In this post I am recommending that you read “The view from the Bench (II)”, part of a series of articles by Elizabeth Medliss in the New Law Journal.  This series discusses views expressed by Mr Justice Burton at an event at Mischon de Reya’s offices.

SHORT AND SWEET IS BEST

The judge explained that:-

• Judges will often “speed read” witness statements to get a general understanding ot the case.
• A chronological based statement often helps.
• “Witness statements should not criticise how another party has conducted their case”.
• They should focus on the witness’s account.
• “Argument should be left to the advocate in court”.
• Lawyers should keep witness statements “as simple and as focused as possible”.

ACCURATE FACTS

• Lawyers can get carried away in drafting long witness statements containing a dense account of the facts.
• Often a witness will sign the statement of truth without any detailed consideration of whether it is correct.
• What really damages a party’s case in the eyes of a judge is the exposure of inconsistencies between a witness statement and the evidence that a witness gives under cross examination.

“accuracy, and not length and argument, is the key to ensuring that a witness statement is as effective as it can be. “

RELATED POSTS

On judges and advocacy

• Things lawyers do to annoy judges: edited highlights 
• Advocacy – the judge’s view II: Useful guidance from Down Under.
• Advocacy – the judge’s view III: More Guidance from Canada
• Advocacy – the judge’s view IV – “Avoid Bullshit, smoke and mirrors” (oh and beware “well padded vanity”).
• Advocacy – the judge’s view V: to persuade a judge think like a judge.
• Advocacy – the judge’s view VI: How a judge assesses witness evidence

On drafting witness statements

• Drafting witness statements that comply with the rules: a checklist too important to ignore.
• Drafting witness statements: 4 golden rules directly from the judges who hear the cases.
• Drafting witness statements and the genius of John Munkman
• 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
• Witness statements and complying with the rules 2: the grounds for the witnesses’ knowledge or belief

On assessing witness credibility

• The Arroyo Judgment 3: witnesses and credibility
• Witness evidence, reliability and credibility: why everyone should read Gestmin
•  Litigators must know about credibility.Witness Statements and Witness Evidence: More about Credibility.
• Which Witness will be believed?Is it all a lottery?
• The witnesses say the other side is lying: What does the judge do?
• Assessing the reliability of witnesses: How does the judge decide?
•    Which witness is going to be believed? A High Court case.
•  The Mitchell case and witness evidence: credibility, strong views and reliability.
  • Witness statements and witness credibility: getting back to basics
  • Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
  • Assessing the credibility of a witness: it is a matter of communications.
  • Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
  • The Central Bank of Ecuador case revisited: the Ocean Frost approach.
  • When a witness says different things in different witness statements: don’t bank on winning.
  • Reliability of witness evidence: honesty is not the same as reliability