![]() The Jackson Report recorded that witness statements generally worked well in personal injury cases but caused more problems in commercial cases. The problem appears to be more acute in commercial cases. I have now catalogued numerous cases where judges have complained about the nature of witness evidence put in front of them. Accordingly, it is most important that, as far as possible, you make sure that each witness statement is in the witness’s own words, and that it is checked very carefully before it is verified by the witness as true.” OTHER EXAMPLES This reflects badly not only on the witness, but on the whole case presented by the party calling the witness. “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. Read the guide to Litigants in Person written by a number of experienced Circuit Judges: The legal advisers should also inform him that he may be cross-examined on his statement in court.” THIS MAY APPEAR OBVIOUS: BUT… H e is also to be given the opportunity to consider carefully what the draft statement says and to confirm its terms or instruct its amendment before he is asked to sign the statement. “We expect that care will be taken to ensure that the witness’s testimony is accurately represented. Where the witness comments on documents which he had not seen at the relevant time, the fact that he had not seen them then should be made clear in his statement.” CARE NEEDS TO BE TAKEN AND THE WITNESS MUST BE GIVEN TIME TO CONSIDER THE STATEMENT They can show him documents which he might have seen at the time, and if he had seen them, ask for his comments on them. Where there are matters, which the legal advisers think he might be able to address, they can properly ask him whether he can give evidence on those subjects. They can also seek to clarify ambiguous statements within his evidence when his statement is in draft, and seek his comments on documents and other materials which might appear to raise questions about the accuracy of his recollection. ![]() “The legal advisers, including – where appropriate – counsel, can consider the draft statement to ensure that the witness has covered the relevant matters to which he can speak. In preparing such statements, legal advisers should bear in mind that a witness may have to justify on cross-examination things contained in his statement.” WHAT THE LAWYERS CAN PROPERLY ADDRESS AND DISCUSS WITH A WITNESS Equally, if it appears that a witness has been improperly tutored in his evidence, the court is likely to discount his evidence. If a party produces such a document as the evidence of the witness, it is likely that it will receive little weight from the court and it may in some circumstances significantly damage a party’s case. Words should not be put into a witness’s mouth. The court does not expect to receive a document which is in large measure framed by lawyers and which uses language which the witness would not use. The purpose of a statement is to record the evidence of a witness. “The role of legal advisers or other parties in the preparation of the statements There then follows a useful series of steps in relation to the taking of the statement. The following principle must be respected: t he statement should be the evidence of the witness and should cover only those matters to which he can properly speak.” (emphasis added). ![]() “The content of the affidavit or witness statement However it is clear that the practice of using witness statements is now well established and the Scottish judges make some useful observations on the process of taking witness statements. Scottish procedure is obviously different to (and I dare say superior to) procedure in England and Wales. I have found some useful guidance from the Scottish courts in a guide prepared by the Commercial Judges on the use of witness statements and affidavits in commercial actions. These are difficult and sensitive topics which have been considered many times on this blog. What are appropriate questions and, to what extent, can the witness be “guided” by the lawyer. There is relatively little guidance to litigators on the process of taking witness statements.
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