THE KEY POINTS OF DRAFTING WITNESS STATEMENTS: A GUIDE – FROM 1951: A HOMAGE TO JOHN MUNKMAN
There are several hundred posts on this site about the drafting of witness statements. These are usually written about because things have gone awry. The skill and effort involved in drafting a proper and appropriate witness statement are often overlooked. Mistakes are often made. Witness statements are either to cursory and brief; too opinionated and argumentative or over-elaborate and lacking credibility. Curiously enough most of what is needed in drafting a good witness statement is in a book on advocacy written by John Munkman in 1951, long before witness statements were part of the rules. Here I want to look at that guidance.
John Munkman was a barrister, practising in Leeds, and well known legal author. In addition to writing Munkman on Employer’s Liability and Munkman on Damages for Personal Injury and Death he wrote numerous books about tax law and, important for the purposes of today, a marvellous short book about advocacy.
John wrote these books, working alone, at a time before there were any electronic means of research. He worked on what we, in chambers, called his “Model T” manual typewriter. He had a skill (which is a rare skill) of encapsulating the essential points in a very short manner.
WHAT JOHN HAD TO SAY ABOUT PROOFS OF EVIDENCE
John was writing about taking proofs of evidence in the days before these were disclosed to the other side. The advocate had to use the proof as the means of asking salient (non-leading) questions to adduce the witness’s evidence.
“If ordinarily speaking, the case centres on the evidence – in –chief, this in turn is founded on the statements of witnesses, or proofs. … Statements ought to be taken from the witnesses at the earliest opportunity. The details fade with the lapse of time, and the evidence becomes modified under the influence of imagination. The taking of proofs is often delayed in a civil action because it is thought there will be settlement. This is a serious error. Apart from the blurring of memory, there is always the possibility that the witnesses will be interviewed by the other side, and the further risk that, by reason of insufficient knowledge, the claim may be based on mistaken grounds…..
In taking a proof, it is best in the first place to ask the witness to tell his story, just noting the salient facts and dates. When the outline is clear, the statement should be taken down in chronological order, amplifying the details at the same time: doubtful points should be tested at once by a few searching questions.
The ideal proof contains all the facts in the right order. It also contains complete details, some of which counsel may not wish to bring out, but they should be there so that he can use his discretion. The ideal proof contains, besides, explanations in simple language of anything which might be obscure to the average man, such as the lay-out of a street or a house, or the working of a machine, or technical terns used in particular trades. Such explanations ought not to be left to the end, as footnotes so to speak, but ought to be introduced side by side with the part of the evidence which they are intended to clarify. Each stage in the evidence should be rounded off and completed before going on to the next.”
THE MUNKMAN CHECKLIST
I am not wholly certain that John would have approved of a checklist arising out his work (indeed I strongly suspect he would not). However it is important that I highlight the major issues he has dealt with in those three short passages.
(1) Take witness statements early. Do not assume a case will settle.
(2) Memories lapse with time.
(3) Be aware of the possibility that there is no property in a witness. The other side could interview a witness.
(4) Allow the witness to tell their story first, taking notes.
(5) When the outline is clear take the statement in chronological order.
(6) Amplify details when necessary.
(7) Test doubtful points by searching questions.
(8) Have “all the right facts in the right order”.
(9) Have explanation of any technical material as part of the text to clarify, not as a footnote.
(10) Each state of the evidence should be rounded off and completed before going on to the next.
ADDITIONAL STEPS FOR WITNESS STATEMENTS
The one addition that could be made to a witness statement is that the use of sub-headings is often of great emphasis.
POINTS TO NOTE
Note John’s emphasis on allowing a witness to tell the story, rather than asking numerous leading questions. Further he suggests that doubtful points should be tested rather than ignored or glossed over. However the essential point is his emphasis on the facts. A witness is usually in court to give evidence about facts. It is facts that win cases. Misplaced opinions in a witness statement often undermine, rather than fortify, a case.
ADDENDUM: JOHN MUNKMAN
I recommend that anyone involved in litigation read John’s book on advocacy. I am the proud owner of a rare signed copy. I was in chambers with John for 9 years before his death. He was a real character in the law. He had served in the air force in WW2; was a keen athlete; he wrote books on his wartime experience in addition to books on law and tax. His practice was in property and chancery law, largely unrelated to the subjects he wrote about.
For several months I thought I had John’s ghost on my shoulder. In his will he left me the job of updating his book on Personal Injury damages. It was not until someone told me that, if he delegated a job, John would trust a person to do it, that I felt comfortable and was able to edit and re-write with more ease. (When I visited him in a nursing home, with Pankaj Madan, shortly before his death he had lost none of his faculties. He got the discussion around to one of his favourite topics – the interim provisions of the Law of Property Act 1925).
The short passages set out above set out most of what litigator’s need to know about drafting witness statements, more than 60 years after they were first written. This is a testament to John’s remarkable legal mind.