THE DANGEROUS USE OF PRECEDENTS 2: CIVIL LAWYERS – THE PROBLEMS OCCUR HERE TOO
The previous post on the use of “precedents” in divorce petitions could lead civil lawyers to think that “this couldn’t happen here”. There are numerous examples in civil cases of witness statements being drafted to a plan.
PRECEDENT WITNESS STATEMENTS
The Law Society Gazette carried an account of a solicitor struck off for “forging” the signature on witness statements. I want to concentrate on the way that the witness statements themselves were produced. This was not dishonest but is worrying. In doing so I am not minimising the (criminal) conduct of the forgery. However the report also reveals a widespread problem of attitudes towards the drafting of statements themselves.
THE EXPLANATION FOR THE FORGED SIGNATURES
The solicitor in question instructed a member of firm to “trace over” signatures on witness statements that were being served.
“When the defendant firm asked for the original statement to be sent through the post, she directed another individual to trace over the signatures with a ballpoint pen, in order to give the impression they were original signatures.
The Solicitors Disciplinary Tribunal heard that the claim was struck out. Layton, a solicitor with Blackburn firm Lance Mason Solicitors, told a later costs hearing she had acted appropriately and honestly throughout the matter, and she would routinely produce witness statements by amending a precedent set up for RTA claims.”
(That explanation was false)
LETS LOOK AT THAT AGAIN…
I stress I am not minimising the forgery. But it is also a matter of concern that a solicitor could state:
” she would routinely produce witness statements by amending a precedent set up for RTA claims.”
This was not a “template” or a checklist but a “precedent”. Instructions are not “taken” but precedents amended.
LETS TALK ABOUT THE WEATHER
It is hardly surprising that judges teach some witness statements with some scepticism. See, for instance, the observations by District Judge Etherington reported by John Hyde in the Law Society Gazette
‘Time and time again I see, particularly in personal injury or RTA cases, there is no sensible narrative about where the duty of care lies and what caused the accident. It is the simple building blocks of a witness statement and it’s not good enough
‘They are more interested in what the weather was or how long the ambulance took to arrive. They have not applied their mind to actually what the accident is about – does this witness statement prove liability? If you read the statement and can’t be satisfied then something is wrong.’
It gets to the stage where counsel are hoping that the judge will ask key questions in order that they can get evidence before the court – that is not in the witness statements.
TEMPLATES AND CHECKLISTS ARE GOOD “PRECEDENTS” ARE BAD
It is tempting to surmise that the reason some lawyers feel they can sign witness statements on behalf of their clients is that the clients have so little input into them. A template or checklist can direct the mind of the witness to the key issue. A “precedent” is almost certainly going to be too vague and not meet the relevant requirements in many cases. It is relatively easy to spot “precedent” witness statements.
THE HANDBOOK FOR LITIGANTS IN PERSON: ALL TOO OFTEN STATEMENTS ARE INCORRECT
This was written by six highly experienced circuit judges.
“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.” (11.1).
WITNESS STATEMENTS – DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES 14th OCTOBER 2021
- The mandatory requirements for witness statements and the consequences of non-compliance
- Protecting the witness from the lawyer
- Protecting the lawyer from the witness
- Witness statements and proportionality
- Where lawyers go badly wrong with witness evidence
- Explaining the significance of the statement of truth.
- A checklist for taking a statement
Booking details are available here.