ADVOCACY THE JUDGE’S VIEW VII: WITNESS STATEMENTS – SHORT AND SWEET IS BEST

We have already looked once this week at a judge’s viewpoint on the drafting of witness statements. In terms of advocacy they are crucial.  The rules only allow the witness to give additional evidence in exceptional circumstances.  Many cases that go to trial are, in essence, about the credibility of the witnesses and accuracy of witness recollection. This highlights the fact that all of those involved in the civil litigation process are advocates, in terms of being responsible for producing credible material that will persuade a judge (or persuade your opponents to settle). The aim of this series is to persuade you to read the original article.  Here we look at guidance given by a judge in relation to drafting a witness statement.

“Lawyers want the statements to capture all the relevant facts in a way which is persuasive and compelling to a judge. In an attempt to achieve this, it has become common for parties to serve long, adversarial witness statements which often amount to thinly veiled advocacy. Whether judges view such witness statements as helpful or appropriate is another matter.”

THE JUDICIAL VIEW OF WITNESS STATEMENTS

In this post I am recommending that you read “The view from the Bench (II)”, part of a series of articles by Elizabeth Medliss in the New Law Journal.  This series discusses views expressed by Mr Justice Burton at an event at Mischon de Reya’s offices.

SHORT AND SWEET IS BEST

The judge explained that:-

  • Judges will often “speed read” witness statements to get a general understanding ot the case.
  • A chronological based statement often helps.
  • “Witness statements should not criticise how another party has conducted their case”.
  • They should focus on the witness’s account.
  • “Argument should be left to the advocate in court”.
  • Lawyers should keep witness statements “as simple and as focused as possible”.

ACCURATE FACTS

  • Lawyers can get carried away in drafting long witness statements containing a dense account of the facts.
  • Often a witness will sign the statement of truth without any detailed consideration of whether it is correct.
  • What really damages a party’s case in the eyes of a judge is the exposure of inconsistencies between a witness statement and the evidence that a witness gives under cross examination.

“accuracy, and not length and argument, is the key to ensuring that a witness statement is as effective as it can be. “

RELATED POSTS

On judges and advocacy

On drafting witness statements

On assessing witness credibility

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