The Art of Drafting Witness Statements

The art of drafting witness statements is yet another skill advocates should properly learn. The dictum below presents a very unfortunate situation in as far as drafting witness statements is concerned.
HH Judge Oliver-Jones QC (Smith –v- J&M Morris (Electrical Contractors) Limited. [2009] EWHC 0025 (QB):

“I have often had occasion to remark about the failure to comply with the CPR so far as witness statements are concerned, as well as the obvious lack of skills of witnesses, and those acting for litigants, in formulating them. It is not infrequently the case that witness statements prepared by litigants-in-person are superior in form and substance to those prepared by solicitors or their agents based upon questionnaires, interviews (often by telephone) or correspondence with witnesses. It is often the case that witness statements, drafted by solicitors or their agents in good faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter), are signed or otherwise accepted by witnesses without any or any proper consideration of their accuracy, completeness or even truth”.

Following that dictum, “4 GOLDEN RULES” have been suggested in drafting witness statements. Let’s deal with these rules now.
Any one preparing a witness statement of any of your witness, you should take care to observe 4 ‘golden rules’:
1) the witness statement should ‘tell the story’ in chronological order;
2) the factual issues in the case should all be dealt with;
3) the witness statement is a statement of fact, not opinion; and
4) the witness statement must be true.

Golden Rule 01:
The witness statement should ‘tell the story’ in chronological order
You should not forget that you (almost certainly) will have personal knowledge of the events covered by the witness statement. The Judge will not. It is important both that you cover all the necessary background and that you do so in chronological order. Your aim should be to get your side of the story across to the Judge. To do so draft the statement in clear language. A statement which does not cover the material in chronological sequence is likely to confuse. If, as advised, you have prepared a chronology this will help you when preparing your witness statements. But discretion is required. Setting out the necessary background is very helpful, but including a wealth of material that is not essential is likely to detract from the important parts of the statement.

Nevertheless it is necessary to include everything that might be important because the Judge may not allow you to give evidence of additional matters which could have been, but were not, included in your witness statement or the witness statements of your witnesses. Use your discretion. If in doubt include the material in the statement.

Golden Rule 02:
The factual issues in the case should all be dealt with
By the time witness statements are prepared and exchanged, most times;
(i) the pleadings (statements of case) will be completed and
(ii) discovery and inspection will have taken place. You will be able to work out what issues of fact exist between you and your opponent.

Review those issues in the light of any new documents thrown up by disclosure. The sensible litigant prepares a list of these issues, and makes sure that all the issues are covered in his witness evidence. Not every witness will be able to deal with every issue, but every witness who can deal with an issue should cover it in his statement. If any issue is not covered by a witness statement you should do all you can to find a witness who can deal with the issue in question.

Golden Rule 03:
A witness statement is a statement of fact, not opinion
A witness statement must be confined to statements of fact, without any expression of opinion. Only expert witnesses are permitted to give opinion evidence. Occasionally an opinion is included in a witness statement. Once this is identified the Judge will have no difficulty in putting a line through it both metaphorically and practically so you do not have to worry if the odd opinion slips into one of your witness statements. However, unguarded opinions from yourself or your witnesses can sometimes affect your case adversely.
It is better to stick to the rules and make sure that there are no statements of opinion in any of the witness statements you rely on.

Golden Rule 04:
The witness statement must be true
In all but the exceptional case each witness’s statement will “stand as his evidence in chief”. By this is meant that, provided the witness (on oath or affirmation) confirms the truth of his statement when he is called to give evidence at trial, the statement will form part of the evidence in the case. It is critical therefore that you make sure that the maker of each statement, and yourself as the litigant on whose behalf the maker is being called to give evidence, checks the statement carefully (cross-referring to the documents and other witness statements as necessary) before signing it as true. Too often (indeed far too often) witnesses who have had statements prepared for them by counsel tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the counsel 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. Accordingly, it is most important that, as far as possible, you make sure that each witness statement is in the witness’ own words, and that it is checked very carefully before it is verified by the witness as true.

2.3 Duty of Counsel Preparing a Witness Statement
Counsel in civil proceedings are typically involved in preparing witness statements. However, the courts have emphasised that a witness statement must, so far as possible, be in the witness's own words: see e.g. Aquarius Financial Enterprises Inc. v Certain Underwriters at Lloyd's [2001] 2 Ll Rep. 542 at 547. When settling witness statements, great care must be taken to avoid any suggestion that;
a) the evidence in the witness statement has been manufactured by the legal representatives; or
b) the witness had been influenced to alter the evidence which he or she would otherwise have given.

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. 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. 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 show him documents which he might have seen at the time, and if he had seen them, ask for his comments on them. 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.

You should also take note of the following guide;

Guide 01:
Preparing a good witness statement is hard work and time consuming
You should never leave it to the last minute. Unless the maker of the statement has an exceptional natural fluency, you will probably find that a statement has to go through several drafts before it reaches a state where it covers all the necessary material in a clear manner, and the witness is confident that it is all accurate. In this regard a word processer is very useful. Never forget that at trial you will be questioned on your witness statement and your witnesses on theirs. Get it right. Do not leave hostages to fortune.

Guide 02:
Where it is sensible to do so, you should divide the statement into separate sections each with its own heading or sub-heading.
For example in a building claim, if there are problems with the roof, and with the windows, and with the doors, the evidence relating to the roof could be put under the heading “Roof”, and the evidence about the windows and doors under separate headings “Windows” and “Doors”. Each section will probably be best dealt with in chronological sequence. The fact that the chronologies of the individual sections will overlap will not matter; the Judge is likely to consider the evidence under each section separately.

Guide 03:
It is essential that every witness statement is divided into numbered paragraphs
These paragraphs should not be too long, and it is very unwise to include evidence on two distinct matters in the same paragraph. You may separate them and present your statements in a chronological way.

Guide 04:
Attach relevant documents to your statement
A witness statement may refer to one or more documents; it is often important that it does. By the date of exchange of witness statements all relevant documents should have been disclosed, but if a document not previously disclosed is referred to in a witness statement the opposing party may require disclosure of it. It is a common practice amongst advocates to attach to the witness statement copies of all documents referred to in that witness statement. This is not necessary where it is clear what document is being referred to, and if a proper list of documents has been served by the party it is perfectly sensible to save the copying and refer, for example, to ‘the invoice no.35 of the Claimant’s list of documents’ on pg. 5 of the Trial Bundle”

Guide 05:
The evidence in a witness statement must not be partial
It must contain the truth, the whole truth and nothing but the truth in respect of the matters on which the witness proposes to give evidence (see Handbook; Chancery Guide 2016, Chapter 19; Queen's Bench Guide, 2016, paras. 7.9.2 to 7.9.5; Admiralty and Commercial Courts Guide, para. H.1.)

One should remember that “great care... must be taken in the preparation of witness statements. No pressure of any kind should be placed on a witness to give other than a true and complete account of his or her evidence. It is improper to serve a witness statement which is known to be false or which the maker does not in all respects actually believe to be true” (Chancery Guide 2016, para. 19.6).

One should also remember that “a professional adviser may be under an obligation to check, where practicable, the truth of facts stated in a witness statement if you are put on enquiry as to their truth” (Chancery Guide 2016, para. 19.6). For example, you may be put on enquiry in relation to witness X’s evidence, because witness Y’s evidence contradicts it, or because there is documentation which contradicts it. However, whilst you may be entitled or obliged to check the evidence “it is not for you to decide whether your client’s case is to be believed”.

You are entitled and it may often be appropriate to draw to the witness’ attention [to] other evidence which appears to conflict with what the witness is saying and you are entitled to indicate that a court may find a particular piece of evidence difficult to accept. If the witness maintains that the evidence is true, it should be recorded in the witness statement and you will not be misleading the court if you call the witness to confirm their witness statement.

Equally there may be circumstances where you call a hostile witness whose evidence you are instructed is untrue. Where there is evidence which clearly contradicts a witness it may be that the duty to not knowingly or recklessly mislead the court comes into play, so that whilst the questionable evidence can be put forward, counsel may have a duty also to ensure that the contradictory evidence is drawn to the court’s attention. In this aspect regard must be had to “knowingly misleading the court includes being complicit in another person misleading the court… recklessly means being indifferent to the truth, or not caring whether something is true or false”.

Counsel has a duty, therefore, to ensure that such notice is given if counsel becomes aware that a witness statement contains material which is incorrect: for example, if a client were to inform you that an earlier statement or instruction, now contained in a witness statement, was incorrect or untrue. However, if you only suspect or believe your instructions (and evidence reflecting them) to be untrue, for example because of contradictory evidence or documents, then it is not for you to decide whether this is in fact the case.

2.4 Witness familiarization
It is important to note that while witness coaching is prohibited, a process of witness familiarisation is permissible and desirable, may extend to advising witnesses as to the basic requirements for giving evidence, in order to assist witnesses to give their best at the trial or hearing but risking their evidence becoming anything other than their own uncontaminated evidence.

The following approach is suggested in relation to any witness familiarization process for the purpose of civil proceedings:
a) Any witness familiarization process should normally be supervised or conducted by a counsel.
b) In any discussions with witnesses regarding the process of giving evidence, great care must be taken not to do or say anything which could be interpreted as suggesting what the witness should say, or how he or she should express himself or herself in the witness box: that would be coaching.
c) Counsel should only approve or take part in a mock examination-in-chief, cross-examination or re-examination of witnesses who are to give oral evidence in the proceedings in question if, and only if:

1) Its purpose is simply to give a witness greater familiarity with and confidence in the process of giving oral evidence;
2) There is no risk that it might enable a witness to add a specious quality to his or her evidence; and
3) In conducting any such mock exercises, counsel does not rehearse, practice or coach a witness in relation to his/her evidence.