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This article was contributed by Taylor Wessing disputes and investigations partner Andrew Howell and senior associate James Bryden
Few factual witnesses relish the prospect of giving evidence in commercial disputes. We once heard it described – with perhaps too much deference to the bar – as like facing a fast bowler on a dodgy wicket. With no bat or pads. In the dark.
But whatever you think of the sensitivities of witnesses, it is a process which is heavily weighted in favour of the cross-examiner. Witness statements in large cases are prepared often at extraordinary cost, but – come trial – they are taken as read. Court time is devoted almost entirely to cross-examination, testing selected parts of that evidence (or something else entirely). That may expose critical flaws in a case, but does it always elicit helpful and reliable evidence at trial?
We suggest more thought be given to alternatives.
What’s wrong with the current system?
It seems to us there are three particular problems with the current system of factual witness evidence.
First, the process of taking witness statements is too expensive. In commercial cases, factual witness statements are generally prepared by the legal teams not the witnesses themselves. They can run to several hundred pages.
It is a process which is difficult to short cut. It is critical that witness statements are expressed in the right tone and language for the witness, that they address the material issues and (at least to some extent) foresee areas of challenge of trial. Potential inconsistencies in a statement need to be considered carefully with an eye to cross-examination often many months later. Whatever the veracity of the witness, the drafting of statements is demanding and very time-consuming.
Witness statements undoubtedly serve a useful purpose in that they force the parties to reflect in detail on the issues, on the documents which have emerged from the disclosure process. That might lead to settlement, or at least refinement of the issues. But, in our experience, it is rare that the exchange of factual witness statements moves the dial in a significant commercial dispute.
Second, the process of oral cross-examination at trial can give a very one-sided picture of the evidence. There are obvious advantages in commercial cases – in terms of saved court time – of not requiring a witness to be led through every detail of their evidence by examination in chief. We do not suggest reverting to that practice.
But it seems to us consideration should be given to a system which enables a witness to have some opportunity to tell their side of the story in open court. It is true of course that the court will have read the witness statement before the witness gives evidence, and that that statement will stand unless challenged under cross-examination; but the over-riding impression of a witness will be driven by the oral evidence and through cross-examination. That is a process which is controlled by the advocate.
Some witnesses will perform very well under cross-examination, some less well; but it is often the fleet footed and prepared, not necessarily the truthful witnesses, who perform best. Even the most helpful witness can appear defensive when faced with tenacious cross-questioning. An opportunity to provide some evidence in chief may help reset the balance.
Third, we suggest that the courts can be insufficiently sensitive to the demands of the cross-examination process. Perhaps that is driven by many judges’ own experience as advocates but, either way, it seems to us the judiciary should be more receptive to the idea of proper witness preparation and familiarisation than often seems to be the case.
We have seen two recent examples of this, in the Republic of Djibouti (March 2016) and Harlequin judgments (December 2016), in which judges have criticised the use of witness training on the basis that it can encourage witnesses to be evasive or unable to accept obvious inconsistencies in their evidence. The witness evidence in those cases may well have been highly unsatisfactory, but we think it unfair to lay the blame on witness training. Such preparation for witnesses seems to us critical. It is about helping witnesses understand and familiarise themselves with the process of giving (truthful) oral evidence. It is not about encouraging intransigence or evasion under cross-examination.
Is there another way?
An answer may be to move to a system of (much shorter) witness summaries in commercial cases. Those summaries would cover the headline factual points which the witness would like to cover, perhaps by express reference to lists of issues. They would be limited in length.
The witness would then have an opportunity at trial to give some evidence in chief in order to expand upon the points raised in the witness summary. This would lead to some lengthening of trials, but a very substantial costs saving in the process of witness statement drafting. It may also present more balanced evidence in court.
The witness would have the opportunity to explain their story to the court, and “warm up” before cross-examination. The role of the advocate would be more demanding, without the benefit of a full written statement, but not in our view unfairly so.
This is not to say that such an approach would be appropriate in every commercial case, but perhaps a “menu” of evidence options (similar to the menu of disclosure options now current following the Jackson reforms) should be considered. The court already has wide ranging powers to control evidence under CPR 32 which could be used to direct the evidence in this way.
Lastly, as to witness training, it would be helpful for the court to provide further guidance as to what support can properly be given to witnesses in preparation for trial, guidance which perhaps more fairly reflects the challenges of the current process.
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