Training: Witness Statement Prep

Question 1

Requirements for WS (Knowledge)

Answer 1

• Should be within witnesses’ personal knowledge
• Where witnesses include hypotheticals, should couch them as knowledge / remembrance (“I recall thinking that x”)
• Hearsay: can give evidence about what someone told them, but unless hearsay notice adduced, can’t rely on it
• If someone doesn’t know something, totally open to say this in their statement

Question 2

Requirements for WS (Purpose)

Answer 2

• Not to argue the case, or take court through the documents
• Not everything must go through a statement

Question 3

Requirements for WS (Documents)

Answer 3

• Trial witness statement should generally not refer to documents
• However where they rely on documents, should say so

Question 4

Preparation of WS (Process for Taking W through Specific Documents)

Answer 4

• Ask if they remember document
• Show document
• Ask if they remember seeing document
• Read document
• Ask if that now prompts their recollection

Question 5

Strategy for WS (Dealing with Adverse Documents)

Answer 5

Best to address up front in statement. Helps them prepare a considered response, and then cross examination needs to be given on that considered response versus potentially “going off the rails”.

Question 6

Preparation of WS (General process)

Answer 6

1. Review all (or large selection) of docs created by WS, and process these docs:
   - ask yourself who is in what roles, what is happening, what are the relationships bw witness and others, what details do you need to know, try and figure things out
   - can do chron
   - can do thematic overview
2. Consider the issues you need to address
   - req prove each point in pleading either via documents, expert evidence, or witness evidence
3. Witness outline
4. Witness statement conversation
   - keep questions open ended
   - allow witness to talk - follow what witness said and ask follow ups
   - have documents ready / bundled before the witness interviews
   - do not send questions to witness (though can send broad topics)

Question 7

Different types of witness interviews

Answer 7

First interview: discursive and open ended. Ideally you would get through all the questions you need at this stage, without needing follow ups.

Second interview:
- go through every sentence in the witness statement
- tell the witness that every word must be theirs, and that nothing is too small for them to remark upon
- this helps build a relationship of trust
- do not send the statement to the witness before this interview: they will mark it up and think their job is done
- when a witness wants to amend any element of the statement, ask them “why?”

Question 8

Timing of statement drafting

Answer 8

Start drafting when the interview is fresh in your mind

Question 9

What to include in WS introduction

Answer 9

a) how the statement was prepared
b) how good the witnesses’ memory is and on what topics
c) summary of topics covered

Question 10

How to organise WS

Answer 10

Use topic headings versus complex paragraph numbering. At most and if you must use subparas, just use (a), (b), (c)

Question 11

Purpose of WS

Answer 11

You are providing a persuasive account of the witnesses’ evidence:
a) one that the judge wants to believe, when the judge reads it; and
b) something that survives cross examination.

Question 12

Stylistic WS drafting points

Answer 12

a) Write like the witness speaks
b) Use the same names the witness uses (e.g. Joe, versus Mr Bloggs), and don’t have names as defined terms
c) use short sentences (this is how people speak). To convert long to short sentences, “just take long sentences and add in full stops”

Question 13

How to cross examination proof witness statements

Answer 13

a) know what’s in the documents
b) avoid absolute / binary statements (these are an invitation for cross examination); e.g.
- “generally do [x]” > “never x”
- “I might sometimes have done [x], but in this situation I did [y]” > “always [y]”
note that witnesses often want to make binary statements, which are not well founded
c) put the other side’s case to the witness and invite them to respond
d) have the witness discuss bad documents: blunts cross examination by getting spin on documents in front of judge

Question 14

How to enhance plausibility of witnesses recollections

Answer 14

a) Include details to add colour
b) If the witness remembers very specific things, ask: (1) where were you; and (2) why do you remember
c) Avoid making silly gratuitous remarks - although you should be free to respond to them

Question 15

Reply witness statements

Answer 15

• Go through statements immediately and highlight what we need to respond to.
• Reply is only required where witness recollections differ on the same points. They are not general arguments.
• Format: go paragraph by paragraph, saying “paragraph x of [opposing witness statement] says y, my response is z”.