Examination in Chief and Witness Statements 2

The ability to examine and oppose the examination of witnesses in open court in an adversary setting is the most basic skill of the trial lawyer. Yet the most common criticism made of trial lawyers is their inability to conduct proper, intelligent, purposeful examinations and to oppose those examinations

2.0 WITNESS STATEMENTS
Civil proceedings differ from criminal proceedings in the form of witness evidence and the process of its preparation. Whereas gathering evidence in criminal proceedings starts with recording statements at police, gathering necessary exhibits and later on orally lead this evidence in court, in civil proceedings, after pleadings are closed, mediation and scheduling, witness statements are prepared to prepare for the trial. These statements will have to be confirmed at the hearing by a witness who made it and later adopted as his or her evidence in chief.

2.1 Guide in Preparation of Witness statements
There is relatively little guidance to litigators on the process of taking witness statements. What are appropriate questions and, to what extent, can the witness be “guided” by the lawyer. These are difficult and sensitive topics which have been considered many times in practice. There is currently no law in Uganda regulating the procedure for preparing witness statements, the practice is majorly guides by different courts and different judges whose approach on the subject is also not similar. Although this seems to be the case, there are several principles and guidelines in preparing witness statements. Let’s look at some of these hereunder;

Principle 01:
The statement should be of the witness and not submissions of Counsel representing the party
This principle must be respected: the statement should be the evidence of the witness and should cover only those matters to which he can properly speak to.” (emphasis added).

Principle 02:
The purpose of a statement is to record the evidence of a witness
The purpose of a statement is to record the evidence of a witness. 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. Words should not be put into a witness’s mouth. 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. Equally, if it appears that a witness has been improperly tutored in his evidence, the court is likely to discount his evidence. In preparing such statements, legal advisers should bear in mind that a witness may have to justify on cross-examination all the information contained in his or her statement.

Principle 03:
Care needs to be taken and the witness must be given time to consider the statement
Care should be taken to ensure that the witness’s testimony is accurately represented. A witness should also 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. The legal advisers should also inform him that he may be cross-examined on his statement in court.

The wording from the judgment of Peter Smith J in A & E Television Networks LLC -v- Discovery Communications Europe Limited [2013] EWHC 209 (Ch):

This case demonstrates the need for solicitors preparing witness statements to curb their enthusiasm in seeking to obtain the best for their clients. It must not be forgotten that witness statements are merely a replacement for evidence which a witness previously used to give live in chief. It is intended to be the factual evidence of the witness in his own words. Too often witness statements are drafted by solicitors who put words in their mouth to achieve a better result. Witness statements can then be changed from drafts to a later stage without the witness understanding the significance of the change.

Principle 04:
Avoid hearsay statements
Further when preparing hearsay statements it is even more incumbent on the advocates not to manufacture things to put that evidence in the best light for their clients. The Court will not have any opportunity to explore that evidence with live witnesses and the duty on the advocate or counsel is therefore even more clear to confine witness statements to what the witness would have said in his own words had he or she been giving evidence.

Equally I do not think it is appropriate for a witness to have his statement taken from him when he does not realise that it is being taken from him for the purpose of giving evidence. That too is unfair. Further when such a person objects to giving evidence it cannot be appropriate in my view for that statement which has been taken down to be served up as a hearsay statement without reference to that potential witness (the more so when he has said he does not want to give evidence). Without the investigations in cross examination in this case none of the actual defectiveness of the hearsay statements would have come to light.