Witness statements and helping the court

The importance of witness statements is often overlooked in a claim. Witness statements are in fact vital, but initial statements can understandably miss  issues which later become important.  A statement needs to cover the factual matters on which the witness can comment and which do or may do in the future  be at issue with the claim.

The rules only allow witnesses to give additional evidence in exceptional circumstances. Therefore the  initial and probable only witness statement has to address all possible issues at the time when served.  If there is a material change in circumstance, then the court will often allow further statements but it can be reluctant to do so and there are cost implications.  A legal team cannot guarantee that facility.

Recent advice has come in from the View from the Bench where judges are asked to provide advice to practitioners.  Perhaps most surprisingly is the indication  that often judges speed-read witness statements and may not read them in as much detail unless there is a highly relevant factor during the course of the trial.  Therefore a short, to the point statement is often more effective than a long detailed one. The issue is to make all the relevant points without losing the interest of the reader.

It has to be accepted that there are some witnesses, despite by all endeavours by their legal teams to encourage them to read and amend their statements, who would prefer to simply sign  the statement of truth without really thinking what is in the statement.   It is therefore vital that everything is checked and re-checked so that the statement accurately reflects the experience of the witness.

For ease the advice is a chronological statement often works better.   Jumping from issue to issue or time to time can make a statement (even if accurate) difficult to follow or to recall.   Each paragraph of a witness statement should deal with a particular issue or a particular time. What is unhelpful to judges is where a witness statement doesn’t flow through the period in question without really identifying those times clearly.  In essence a statement should deal with pre events,  events on which the witness can give evidence honestly and the after effects.

Judges have  made a great deal of effort to give advice to those drafting statements.  Not least that they should read (largely) as if the witness  wrote it in their own words  rather than a lawyer drafted it to  cover specific issues.  It is important that the witness statement accurately reflects the witness’ account, not the lawyer’s interpretation of it which may be quite different.  A witness statement written as if a solicitor would write it often causes some concern.  It is therefore important that it is written as much as possible in the language used by the witness, leaving aside some obvious issues.

Sometimes statements have to give an impression of  the person, sometimes to  detail actual events but the  position remains the same.  Judges want plain language, clear issues,  chronological  paragraphs and are not impressed by over lengthy statements which repeat (albeit in different terminology) the same issues.

Good clear witness evidence can  assist a party considerably.  Poorly drafted statements even if they contain the same information , are more likely to be overlooked, not relied upon or dismissed. Lawyers can understand the importance of statements but on occasion, as the advice from the judges’ demonstrates, they fail to understand what it is like to read the statement in the context of  significant other evidence.  The advice is clear – keep them relevant, organised shorter and in plain language.  Not all statements are the same and it is those that  understand how difficult it is to read and assimilate all of the evidence in a trial , that will understand best how to use the statement to great effect.

All  solicitors should always work on the basis that every case may well go to trial and prepare accordingly, starting with a full, factual, well-organised, well-written statement.  Evidence needs to be prepared and provided in a proper format for it to be effective.   Medical and other evidence is always considered in the context of who needs to read it and understand it. Sadly on occasion  the same  review criteria  is not applied to the witness statement possibly to the detriment of the case.  As times and costs get more constrained lawyers should  heed the advice of judges and edit the statements accordingly or potentially fail to deal properly.