Preparing To Give Evidence – An Essential Part of Any Litigation Strategy
By Jason Galbraith-Marten QC
Posted: 1st July 2014 08:56
‘Before anything else, preparation is the key to success.’ Alexander Graham Bell
The number of recent cases in the UK in which judges have commented adversely on witness performance is remarkable. For example in Rawsthorne v Easybus Ltd case number 3302770/2013, Employment Judge Bloch QC commented that Sir Stelios Haji-loannou “repeatedly evaded answering questions put to him in cross examination. I had to intervene on a number of occasions to remind him that he should not be arguing with Counsel or seeking to ‘second guess’ future questions - but that his obligation was to pay attention to the questions and seek to answer them.” In Grizzly Business Ltd v Stena Drilling Ltd  EWHC 1920 (Comm) Mr. Justice Teare found a witness unimpressive because he “had a tendency to give long and confusing answers rather than a simple answer to the question asked. He gave the impression, by setting out the context in which matters arose, that he was seeking to argue the case rather than answer the question asked.” In Stein v Chodiev  EWHC 1201 (Comm) Mr. Justice Burton said “I found Mr. Olim Chodiev an unpersuasive witness …”
Why do people, even very senior people, perform so badly when called upon to give evidence in a court or tribunal or before an arbitral panel? The answer may well be a lack of proper preparation. Simple things – such as not understanding that the role of a witness, no matter how senior, is to answer questions and not argue the case – are often the reason why judges are distrustful of what the witness is saying to them. So why is so little time and attention paid to the proper preparation of witnesses for the experience of giving evidence and being cross-examined, so that they understand this? In the UK lawyers are often cautious about the use of witness familiarisation training in light of the well-known prohibition on coaching and rehearsal. This fundamental principle is set out in rule C9.4 of the Code of Conduct applicable to barristers. But judges in the UK have repeatedly made it clear that witness familiarisation training is not only permitted but welcomed. In the leading case of R v Momodou  1 WLR 3442 the former Lord Chief Justice, Lord Justice Judge, said:
‘Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works … Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible … The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process.’
A witness once famously commented that when done badly witness training is “about as much use as a chocolate fireguard.” But done well its benefits are immeasurable. Witnesses are better informed about exactly what is going to happen at trial and they therefore feel much more relaxed and confident about the prospect of giving evidence. As a result they are more likely to perform to the best of their ability, effectively communicating what it is they have to say and improving their chance of success as a result.
However, as guidance prepared by the Professional Standards Committee of the Bar Council explains, the line between (a) the legitimate preparation of a witness and his/her evidence for a current or forthcoming trial or hearing and (b) impermissible rehearsing or coaching of a witness, may not always be understood. Therefore in the UK all witness familiarisation training must be carried out in accordance with strict rules to ensure that it does not cross the line into impermissible coaching. Lord Justice Judge stated that proper records should be maintained of all those present and the identity of those responsible for the familiarisation process; the programme should be retained, together with all the written material used during the familiarisation sessions; and of course none of the material used should bear any similarity whatsoever to the issues in the proceedings to be attended by the witnesses and nothing in it should play on or trigger the witness's recollection of events.
Crucially, none of those involved in the witness training should have any personal knowledge of the matters in issue and that will obviously include the solicitors with conduct of the litigation and the trial advocate, which is why it is preferable to use a specialist witness training provider. Lord Justice Judge observed that it is a matter of professional obligation for any lawyers involved in the familiarisation process and the trial itself to see that these rules are followed.
At Assurety we train witnesses using experienced, practising advocates who are recognised as leaders in their field. We also use an expert communications trainer in every session, since it is impossible for the lawyer to conduct a cross-examination and also to be fully aware of how the witness is coming across, for example in terms of body language and other forms of non-verbal communication. That trainer will have years of giving expert communications help using professional techniques. Every single one of the witnesses we have helped as part of their trial preparation has observed that the training is excellent.
Jason Galbraith-Marten QC is a barrister / trial attorney with over 20 years’ experience running the most complex labour / employment and equality cases. He has been described in the leading UK legal directories as an "outstanding advocate" who “changes tribunals’ minds like no other." "Ferociously bright, he is always prepared and wins cases with his imaginative arguments.” Recently appointed one of her Majesty’s Counsel, he is determined to play a role in the development of employment law both in the UK and internationally. Jason set up Assurety with two other leading UK barristers, Paul Epstein QC and Edmund Williams.