As part of the series giving gentle reminders of the “litigator’s resolutions” set out at the beginning of the year I am returning to the very basic art of drafting a witness statement. It may be significant that the post from two years ago Drafting witness statements that comply with the rules: a checklist too important too ignore. is by far the most popular post on this blog this year. The number of cases, and applications, where basic failures in witness statements and evidence cause a problem is still a rich source of material for this blog.
ISN’T DRAFTING WITNESS STATEMENTS AN EASY TASK?
It is the fallacy that drafting witness statements is easy that leads to many of the problems of modern litigation.
- Most witness statements do not even comply with the basic requirements of the rules.
- Many witness statements make no distinction between “facts” and “opinion”.
- Judges have stated, on numerous occasions, that witness statements are often the work of lawyers rather the evidence of the client.
- Witness statements often fail to prove key points of a case.
So the Handbook for Litigants in Person (written by six experienced Circuit Judges) states:
“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor 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.”
In Barrett -v- Sandwell and West Birmingham Hospitals NHS Trust  EWHC 2627 (QB) a clinician was giving evidence against his employer, NHS Trust, the judge observed:
“there were unfortunate errors in his witness statement (which he candidly accepted was drafted by the claimant’s lawyers)”
GETTING WITNESS STATEMENTS RIGHT
- Totally hopeless applications and inadequate witness statements.
- The importance of the statement of truth
- Drafting witness statements: “4 golden rules” from the judges who hear the cases.
- The importance of drafting witness statements that comply with the rules.
- Witness statements & sources of information and belief: 10 key points
- Witness statements giving the source of information and belief: a rule overlooked at your peril.
- Making first hand statements avoids penalties
- Drafting witness statements and the lawyer as witness
- Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).