Factual witness statements often fail to fully achieve their aim in providing the best evidence before the Courts.
This is the clear message delivered by the report of the Business and Property Courts Witness Evidence Working Group, triggered by the impression expressed by a relevant majority of the judges of the Commercial Court.
Only 6% of those who have been interviewed are reported to have expressed the view that the current system “fully” achieves such purpose, what might be considered an understatement since criticisms have included description of comment witness statements as “a vehicle for the lawyer’s view of the case” or “heavily crafted by solicitors”.
The issue of a statement as to the best practice in the preparation of witnesses was felt to be helpful by the members of the working group.
A main point which was agreed is that the witness statement “must use the witness’s own words” and that a more developed statement of truth would confirm that the witness has been made well conscious of the effects of his/her statement. Also the service by the parties of a pre-trial statement of facts was discussed with a view to helping the parties to “confine witness statements” to their appropriate content. In the essence, a main problem was identified in such witness statements being over-lawyered.
However, one might wonder whether any of the above discussed solutions will materially avoid that such statements be over-lawyered. Since the current system is widely thought to need to be reconsidered, one might perhaps go further. If the issue is put in general terms, is it really satisfactory that witnesses be prepared by someone else and, in some jurisdictions, even coached ?
Are there no risks that the witness’ deposition be affected by its preparation by a third party, whatever be his/her role ?
Just to make an example, oral evidence will allow the Court to get the details of possible hesitations, or uncertainties of the witness, while the statement will generally only provide his/her final conclusions. As it has been discussed on previous occasions, various civil law jurisdictions do not allow lawyers to prepare the witnesses. However, even if the party does not contact the witness, the result of that is that he/she will generally give evidence without having had the opportunity to know on which facts he/she is expected to depose, and without having had enough time to go through its recollection of such facts. It might perhaps be wondered whether a solution could not be looked for which would take the advantages of both positions, without also taking their disadvantages.
A statement of the facts, on which the witness is asked to write “his/her own statement”, could be filed by each party with the Court or the Arbitral Tribunal and it could be forwarded to the witness by the Court’s clerk or by the secretary of the Arbitral Tribunal or, in his/her absence, by the centre, which administers the arbitration.
This issue looks indeed to be delicate. It may then benefit from a continuous search for the best solution.