Are witness statements always a proper source of evidence?

June 2016 | EXPERT BRIEFING | LITIGATION & DISPUTE RESOLUTION

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It has become nearly normal in international arbitration that the tribunal gives, as a matter of course, a deadline to the parties to file witness statements. This directive is so firm that it is rare that any objection is raised. Even within the panel, the issue is frequently not checked in advance by the chairman with the other arbitrators. It is suggested that this matter is not as straightforward as it might appear and needs to be discussed.

Advantages of witness statements

Witness statements have been introduced in court proceedings in England and in other common law jurisdictions, replacing traditional direct examination of a witness. The purpose of this new practice was to shorten the duration of the evidentiary hearing, avoiding counsel’s slow movement from questions as to one fact to questions as to other facts, in an effort to avoid leading questions. The witness statement, to be just confirmed via direct examination, is in fact the basis for the cross-examination, and of a possible re-examination. Even if on the one hand the drafting of a witness statement takes time, on the other hand it allows for much better preparation for cross-examination of the witness.

Disadvantages of witness statements

The drafting of a witness statement might be left to the witness. If so, the witness, who is asked to depose on a given fact, writes his or her statement and sends it to counsel.

However, it is a well established practice in common law jurisdictions that lawyers are generally not happy with witness statements and often believe that they should be made clearer and better. The statement then becomes the object of an interview and in any event of contacts between the witness and lawyers. When the witness writes a draft, the draft is reviewed by the lawyers and discussed with the witness one or more times, until the lawyers are satisfied with it.

It is not uncommon for much of what the witness has said or written to be missing from the final version of the statement. This does not mean that the witness statement has been be materially changed, but that in the end the witness has not expressed himself as he had wished. The traditional approach in a civil law jurisdiction is the opposite, and in many of them it is a rule of conduct for the lawyer to have no contact at all with the witness.

One must note that even this alternative approach does not provide satisfactory results, since the witness – if nobody informs him of the issues on which he has to respond – hardly knows what will be asked of him. The result is that his deposition, when suddenly faced with unexpected questions while in the witness box, will rarely allow for his best recollection.

Even if it is hopefully rare for a lawyer to induce a witness to say something which is not true, or not entirely true, dealings with a lawyer may detract from the truthfulness of the witness’s deposition. Obviously this may reduce his or her credibility.

A further negative aspect of witness statements is that, although it is possible that in the witness box the witness changes his or her deposition, this is rare because the witness may instinctively feel that he or she must defend their written statement.

In some jurisdictions, like the US, the preparation of the witness is sometimes completed by showing them videos of examinations or by taking them to court, or proceeding to a mock examination of the witness, by posing questions which might be difficult and instructing them on how to respond. This has led to talk of coaching the witness, a term which is not welcome.

Any alternative?

The possible effects of contact between a lawyer and a witness on the freshness of the deposition might induce a tribunal to take a cautious approach, asking the parties in advance whether they agree that witness statements be prepared by, or with the cooperation of, the lawyers, and that the lawyers have contact with witnesses. Furthermore frequently the statement provides the final position of the witness, which is the result of their recollection at the end of the lawyers’ search for a response, without showing their various steps in search of a response, while the knowledge of these various steps may be useful to assess the weight of that deposition.

Contact between a witness and a lawyer would then be possible if consent is given by all the parties. If there is no consent by all the parties on the preparation of witnesses, or if the tribunal does not want the witnesses to be prepared, it is suggested that instead of going to the opposite extreme (i.e., that the witness be totally unprepared), an intermediate solution might consist of each party asking the tribunal, or its secretary, to write to each witness, informing them that they will be called as a witness in that dispute, mentioning the areas on which they will be examined and providing (only if necessary) the documents which concern such facts.

Contact with a witness would then be established by the tribunal or by its secretary. It is hoped that in this way, the process should avoid two excesses: either that witnesses are prepared by counsel or that witnesses are totally unprepared.

Mauro Rubino-Sammartano is a partner at LawFed BRSA. He can be contacted on +39 02 4819041 or by email: mauro.rubino.brsa@lawfed.com.

Mauro Rubino-Sammartano

LawFed BRSA