TALES FROM THE APIL CONFERENCE 3: WITNESS STATEMENTS: LITIGANTS IN PERSON ARE BETTER THAN LAWYERS
I attended the APIL conference because I was asked to talk about “proving things”, that is the basic task of establishing a case by evidence. The fact that this blog has a long-running series on this issue may have played a factor. It is an issue that remains a problematic one for the legal profession as a whole.
I have written about this at length on this blog. The preparation of witness evidence is one essential element of legal work upon which nobody is trained, nobody reads the rules and nobody reads the guidance.
The tenet of the talk was that this situation is (i) dangerous – to lawyers and clients alike ; (ii) surprising (if not frightening) to any reasonably minded onlooker. (At least we were trying to remedy this to some extent at the conference).
LOOK AT SOME QUOTES
Four quotes used in the lecture serve to outline the problem.
THE JACKSON REPORT
“Ten years after the adoption of Lord Woolf’s proposals it seems that, despite being embodied in the CPR, his reforms have not been fully implemented. Many Phase 1 submissions recognise that the costs of preparing witness statements have got out of control. One went so far as to say that the current approach to witness statements is “one of the worst features of the CPR”. “
THE WHITE BOOK
“Unfortunately, rules, practice directions and guidance as to the content of witness statements appear to be habitually ignored by practitioners. Periodically, the Court of Appeal and individual trial judges have criticised lawyers for overloading witness statements with material that should not be included.”
GUIDEBOOK FOR LITIGANTS IN PERSON
“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”
HH OLIVER-JONES QC
“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”.