RESEARCH INTO THE TAKING OF WITNESS STATEMENTS: A POST FROM PROFESSOR PENNY COOPER AND DR MICHELLE MATTISON
A recent High Court decision emphasised that all legal cases are, in reality, all about the facts. Despite that there is very little research into the role of the judge as fact finder. There is even less research on the role of the lawyer in the fact gathering stage, the drafting of witness statements in particular. Here we have a post from Professor Penny Cooper and Dr Michelle Mattison into their research on this topic, concentrating on cases in the Employment Tribunal.
Despite witness evidence being of major importance in civil litigation, there is barely any research about how witness statements are prepared. With funding from The Nuffield Foundation we reviewed psychological and legal literature about taking witness statements and conducted 40 semi-structured interviews with judges, panel members, employment lawyers (solicitors, barristers, advisers) and litigants in person.
This preliminary study focused on the Employment Tribunal where many claimants are unrepresented and draft their own witness statements whilst many defendants are legally represented. Whether prepared by litigants in person or legal practitioners, a key message was that the quality of witness statements varied enormously. We also heard many judges and panel members in our study questioning how statements are prepared. For example:
“…one of the things that happens is that the witness statements end up being drafted by committee… what should happen is that the solicitor interviews the witness, covers the areas with the witness that he or she thinks needs to be included in the witness statement, prepares a draft, sends it back to the witness. The witness corrects it and that’s the statement.”
“Sometimes, if I’m really honest with you, the witness statement has been duplicated, because it’s come as directed by the solicitor… They just change who they’re talking about for the third party. So there’s a quality about them there. I’m not saying it’s a good quality; I’m just saying there is a standard quality when they’ve been fill-in-the-gaps type documents.”
Most lawyers said they had picked up skills for taking witness statements in practice. For example:
“I haven’t actually been on a course designed to prepare witness statements itself. My knowledge comes from my legal practice course and what I learnt there. A lot of it is through experience, reading, speaking to colleagues, even statements from the other side sometimes when they come. They’re always helpful.”
Existing Presidential Guidance (2018) on the preparation of witness statements for Employment Tribunals was only mentioned by a few practitioners in our study. We also found that in general, guidance on drafting witness statement for civil litigation is scarce. The Witness Evidence Working Group (WEWG) in 2019 noted this too. Regular readers of this blog will be aware that the WEWG report led to Practice Direction 57AC – Trial Witness Statements in the Business and Property Courts. However, for civil litigators there is still no detailed guidance rooted in established psychological research about memory retrieval and witness interviewing. It is a guidance gap that ought to be filled.
In our report we recommend that existing guidance should be reviewed, updated and placed in one accessible online location; this would be helpful to lawyers as well as litigants in person.
Our full project report, including our review of the psychological literature, can be found here
THE NUFFIELD FOUNDATION
The Nuffield Foundation is an independent charitable trust with a mission to advance social well-being. It funds research that informs social policy, primarily in Education, Welfare, and Justice. It also funds student programmes that provide opportunities for young people to develop skills in quantitative and scientific methods. The Nuffield Foundation is the founder and co-funder of the Nuffield Council on Bioethics and the Ada Lovelace Institute. The Foundation has funded this project, but the views expressed are those of the authors and not necessarily the Foundation. Visit www.nuffieldfoundation.org