Jointly Prepared by Linda Alinda-Ikanza & Paul Mukiibi

MODULE 03 - EXAMINATION IN CHIEF AND WITNESS STATEMENTS

1.0 MODULE 02: EXAMINATION IN CHIEF AND WITNESS STATEMENTS

1.1 Objectives of this Module:
• To understand the meaning of examination in chief;
• Understand the purpose of examination in chief;
• Understand the meaning of Witness Statements;
• To know the relevance of Witness Statements in a trial process; and
• Understand how to use Witness Statements in a trial process.

1.2 Learning Outcomes:

• To explain the meaning of examination in chief;
• To explain the purpose of examination in chief;
• To illustrate the art of conducting a proper examination-in-chief;
• To explain the relevance of Witness statements in a trial process; and
• To demonstrate the use of Witness Statements in a trial process.

1.3 INTRODUCTION:
The ability to examine and oppose the examination of witnesses in open court in
an adversary setting is the most basic skill of the trial lawyer. Yet the most common
criticism made of trial lawyers is their inability to conduct proper, intelligent,
purposeful examinations and to oppose those examinations.

A good lawyer leads his or her witness to turn evidence into fact and fact into truth.
It’s the duty of Counsel representing the prosecution to ensure that he or she
discharges the burden of proving the case beyond a reasonable doubt (criminal
proceedings). Prosecutors must therefore call witnesses in every trial to prove their
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case to the expected standard. This is the same position even in civil proceedings
where the burden of proof is either on the balance of probability or slightly above
the balance of probability but not beyond reasonable doubt. Examination in Chief
is the keystone in the prosecution's arch. It is also important to the defender who
will call witnesses in support of the defensive theory. Direct examination is a vastly
overlooked skill. Unlike cross-examination, there is very little written material to guide
practitioners through the examination of their own witnesses. This is surprising because
cases are actually won or lost on the fruits of direct examination.

Examination in Chief is one of the most subtle and sophisticated form of advocacy.
It is subtle because a good chief examination focuses entirely on the witnesses
and their evidence. The evidence should appear to be flowing effortlessly from the
witness. It should look easy. Whereas the witness should be memorable, the
lawyer should not. Chief examination is sophisticated advocacy because during its
course, counsel is actually presenting their case, while trying to satisfy a multitude
of objectives, such as maximizing the potential of each witness to present all
relevant evidence in as logical, credible, persuasive and accurate manner as
possible, while knitting all witnesses' evidence together in a coherent fashion in
order to prove all the elements of the offence beyond a reasonable doubt.
Examination in Chief thus becomes a starting point for any litigation. In the
adversarial system of our country, it becomes a tool of extracting truth from the
facts.

1.4 Definition of Examination in Chief:

The examination of a witness by a party who calls him shall be called examination
in chief (see Sec. 136 (1) of the Evidence Act). Examination in chief is the first
examination after the witness has been sworn in or affirmed. It is a province of a
party by whom the witness is called to examine him in chief for the purpose of
eliciting from the witness all the material facts within his knowledge which tend to
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prove the party’s case. Examination in Chief is also known as Direct Examination.
This is where you obtain evidence from your own witnesses. You need to ensure
that your witnesses give clear evidence and that they do not talk too fast in order
that notes can be taken. Ensure the witness faces the Judge or Judicial officer
when answering questions and is not looking at you. This will enhance the quality
of their evidence. When asking your witnesses questions, you need to try to elicit
from them only the evidence that is relevant. Always therefore bear in mind why
you are asking your witness a particular question and what you want to hear from
them.

1.5 Objectives of Examination in Chief:

Examination in chief of a witness is intended to achieve a number of objectives;

1.5.1 Major Objectives

a) To determine admissibility of evidence;
b) To prepare a witness to lead evidence in a trial;
c) Present persuasive and credible evidence; and
d) To prove each and every element of the cause of action, offence and or
defence to the expected standard.

1.5.2 Minor Objectives

In addition, you are also trying to achieve the following slightly less essential, but
still important, objectives:
a) Present a logical, complete and coherent theory of your case;
b) Present each witness in the best possible light;
c) Use the evidence of one witness to support another so that a seamless cloth
may be woven of the proven fact;
d) Fill in gaps in the evidence and attempt to explain any inconsistencies;

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e) Shut down potential cross-examination thereby limiting the exposure of your

witnesses; and
f) Allow the defence as little room to move as possible by minimizing the
possibilities of a defence supported through cross-examination of witnesses.

1.6 The Directed Approach to Examinations-in-Chief

1.6.1 Effective questioning techniques

– Use of open ended questions.

- The Difference between closed questions and leading questions

1.6.2 Moving from “open questions” to “directed examination”

– planning the direct examination
– breaking down the topics/issues
– effective problem analysis

1.6.3 Understanding the Importance of Preparation

Most witnesses have no prior experience in testifying. As counsel, it’s your job to
ensure that both you and your witnesses are thoroughly prepared. This includes
fully understanding what evidence needs to be elicited from each witness, and
preparing your witnesses so that they can effectively convey this information. In
this session, you will learn:

• What does an unplanned examination-in-chief look like?

• How to elicit the information you need from your witness

1.6.4 Headlines and transitions

• Why are headlines so important;

• Effective use of headlines to create the outline of a good examination;
• Listening, and looping back;
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• How to be more persuasive;

• Techniques to effectively follow up, clarify and qualify facts; and
• How to keep control of the witness
This session will also include a discussion about practical tips and strategies on
how to make your witness more persuasive.

You’ll engage in hands-on exercises and drills focused on how you should deal
with a witness when they do not provide you with the answer you were hoping for,
and learn strategies for how to manage the following issues:

• The witness who talks too quickly or too softly;

• The rambling witness;

• Dealing with partial or insufficient answers;

• Using notes to help direct questioning;

• Making eye contact, and with whom;

• The importance of pace and strategies for setting the right one;

1.7 Leading Questions

During examination-in-chief the advocate is forbidden from asking their witnesses

leading questions. A leading question is one which in its phrasing suggests its own
answer1. By way of an example, the man wearing a red and white jumper, wasn’t
he? By suggesting the answer to the witness you reduce the witness' impact.
Leading questions are forbidden in examination-in-chief because the lawyer is not
allowed to lead their witness and in effect put words into their mouth. When you

1
Section 140 of the Evidence Act Cap 6
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call your own witness you hope and expect that they will provide evidence that is
favourable to your case and will 'come up to proof'.

As a general rule when you ask your witness questions you should phrase your
questions using simple words and phrases to ensure the witness fully understands
what you are asking them. When questioning your witnesses consider using points
of reference to add variety to your questioning and to move the witness along from
one episode to the next.
For example, 'Tell us what happened after you saw the car swerve?'
Generally, a leading question suggests the answer, or assumes the existence of a
disputed fact. You are allowed to ask leading questions about non-disputed
matters. For example: instead of “where were you on the night of the 15th?”,
ask “were you at the bar on the night of the 15th?”

1.11 Open and Closed Questions

You can ask your witnesses a variety of open and closed questions. To obtain the
information you require from a witness it will be necessary to use for example
closed questions to establish undisputed aspects of the case such as the
background and set the scene and to bring out details or emphasise a particular
part of the story. This more so because some closed questions can be leading in
certain aspects. Open questions are the best in allowing the witness to freely tell
their part of the story or to turn their attention to a subject and then ask the witness
to talk about that subject.

Your questions should be short and concise so when the judge hears the question
and hears an equally short and concise answer, his or her next thought is one of
the “W’s.” Your examination should follow that train of thought.

For example, if you ask about a meeting, the listener would usually then start to
ask in his or her mind the following questions:
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a) When was the meeting held? (Time)

b) Where was the meeting held? (Place)
c) Why was the meeting called? (Reason)
d) Who was present at the meeting? (People)
e) What was discussed at the meeting? (Occurrences/Activities)
f) How was the meeting conducted? (Procedures or processes)

Ask yourself how an event or unfold by putting yourself in the witness’ shoes. Your
own mind would likely then follow this 5W and 1H track. So the questions in court
or in an arbitration should follow that track.

Do not leave the witness to do all the talking. Oftentimes when reviewing a
transcript in the Court of Appeal, you will see a short question, followed by a half-
page answer. If you read a transcript like that then, in my respectful opinion, the
direct examination has not been properly carried out. One should never lose
control of a witness, and dictating the pace of the evidence is crucial depending on
the ability of the judge or Judicial officer either to electronically or manually make
notes.

There is no reward for speed. Remembering that judges are mere mortals should
be your guiding perspective. Always keep an eye on the judge or Judicial officer
before going to the next question. When the judge or Judicial officer is required to
look at an exhibit or look at one document in a volume of exhibits, make sure that
the judge is at that exhibit before you begin the question related to it.

1.12 A guide to the actual Examination-in-Chief

Trying out witness examination for the first time can be intimidating. You're there
to either make or break the witness, with only your skills, case theory, and wit. As
Walter Sofronoff QC wrote, it is "a species of unarmed combat"; it's raw advocacy
at its most exhilarating. You can spend years learning witness examination

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properly, but it's always good to start with some of the fundamentals. Here are
some top guides to set you on your way.

1.12.1 Start with the Basics

These include skills like speaking clearly and slowly, having good posture and eye
contact, and trying to stamp out your 'gremlins' - things you subconsciously say or
do while speaking, like saying 'um', or clicking a pen. Using plain English is
important, as you're communicating with everyday people. Say " “car” and not
“automobile” for example, to save everyone from becoming confused or distracted
by your vocabulary.

1.12.2 Be nice to the witnesses

Professor Peter Lyons wrote, "the first aim is to strengthen your client's case by
highlighting the good points through the opponent's witness and by putting facts
that the witness will agree with..." – and they won't agree with you if you're being
nasty!

1.12.3 Learn to develop a case theory

Put simply, that's the version of events you want to prove, summarised in four dot
points. It should be your four strongest points that directly address the key
elements of the relevant law. Use this to guide your questioning. Most people
agree that examination-in-chief is the harder of the two skills. You have to ask your
witness questions in a way that enables them to tell their story to the court.

A good examination plays out like a story. When examining your witness, you want
people to be totally focused on your witness. Try and ask short, simple questions
that allow your witness to tell a story - who, what, when, where, and why. Ask about
events in chronological order.

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1.12.4 Control the witness's story telling

While the focus isn't on you, you need to remain in control, so the witness says
only the evidence you want them to. You can interrupt the witness where it's
appropriate to do so. Also, try 'piggybacking' your questions: What did you see at
the farm? A herd of cows and some horses. I want to ask you about the horses,
where were they located?

1.13 Checklist for an Effective Examination-in-chief or Preparing your

Examination-in-Chief
1) Know the theory of your case
a) What are the major issues in the case? (start with your pleadings)
b) What is the theory of your case?
c) What evidence do you require to support the theory of your case?
d) Can some of the evidence be obtained through a Request to Admit?
e) What evidence do you need to rebut your opponent’s theory?
f) What do you want to say in your closing submissions?
g) How will the evidence of each of your witnesses add to your closing
submissions?
2) Consider the purpose for which you are calling the witness
a) Can this witness testify to facts that assist you in advancing your case?
b) Are there exhibits that must be introduced through this witness?
c) Is there another witness you are already calling that can testify to the same
facts/identify the same exhibits?
d) Can this witness bolster or detract from the credibility of others that will
testify?

3) Prepare your witness

a) Before trial, meet with your witness. Review any prior testimony and any
documents you intend to introduce through the witness.
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b) Discuss with your witness how the process in court will unfold. Describe to
the witness who she can expect to see in court – i.e. Judge, Court Clerk,
opposing counsel, Court orderly, others.
c) Do not ask the witness to memorize evidence.
d) Do not coach the witness or offer answers to the witness during preparation.

4) Create an outline for your examination

a) What do you need your witness to say?
b) What questions do you need to ask to elicit the necessary information?
c) Consider the order and organisation in which you intend to ask the question
(chronologically; thematically). A good examination should be organized in
chapters guided by the various issues or elements to prove.
d) Consider questions that may be posed in cross-examination which you can
diffuse during examination-in-chief.

1.14 Conducting your Examination-in-Chief

1. Form of your Examination – telling a persuasive story
a) Lead through preliminary, non-contentious areas. For example, “Ms. Jones,
you are 32-years old?” “You have been employed as a teacher for 9 years?”
b) Do not ask leading questions on contentious and/or significant issues. It is
always better for the trier of fact to hear the story from the witness and not
counsel.
c) Organize your questions topically, giving the witness and the trier of fact the
opportunity to follow the flow of your examination.
d) Decide whether it is more persuasive to ask questions in a chronological
order or by theme/issue. The questions posed to the witness must be
presented in some form of order. Do not lurch from topic to topic. This will
confuse the witness and annoy the trier of fact. It will also detract from the
persuasiveness of the witness’ story.
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e) Use short, simple language when formulating your questions. Do not use
overly technical language or “legalese”.
f) Often, simple “who, what, where, when, why” questions will allow the witness
to give her evidence in a clear and simply manner.
g) Listen to your witness. Often a witness may give an answer that requires
follow-up. If you are not listening, you will miss that opportunity.
h) Use looping techniques to repeat the key theme or answer in a series of
questions on an important issue. For example, in a case involving a car
accident, where the witness has just answered a series of questions
involving her observations of the accident: “After you saw the Honda rear-
end the Toyota, who did you contact?” This repeats helpful evidence and
provides the witness with guidance as to where you are moving next.
i) Prepare to start and finish strong. Deal with less important and/or more
difficult evidence in the middle of your examination.
j) Humanize your witness by asking questions that will elicit empathy. This
helps to build the witness’ credibility and relate-ability.
k) Where appropriate make use of pictures, diagrams or other demonstrative
aids. This will assist the witness in giving her evidence and will give the trier
of fact a concrete visual, to compliment the witness’ words.

2) Hazards to Avoid during Examination-in-chief

a) Do not ask your witness irrelevant questions. If the answer it elicits is not
important to your overall theme or to rebutting your opponent’s case, do not
ask the question.
b) While it is important to neutralize bad facts when possible, do not waste your
entire examination-in-chief doing so.
c) Discuss evidentiary issues with your opponent beforehand, so to minimize
objections during your examination-in-chief.

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d) Do not ask compound or overly complicated questions such as questions

which contain many facts or technical language. This will only confuse your
witness and the judicial officer.

2.0 WITNESS STATEMENTS

Civil proceedings differ from criminal proceedings in the form of witness evidence
and the process of its preparation. Whereas gathering evidence in criminal
proceedings starts with recording statements at police, gathering necessary
exhibits and later on orally lead this evidence in court, in civil proceedings, after
pleadings are closed, mediation and scheduling, witness statements are prepared
to prepare for the trial. These statements will have to be confirmed at the hearing
by a witness who made it and later adopted as his or her evidence in chief.

2.1 Guide in Preparation of Witness statements

There is relatively little guidance to litigators on the process of taking witness

statements. What are appropriate questions and, to what extent, can the witness
be “guided” by the lawyer. These are difficult and sensitive topics which have been
considered many times in practice. There is currently no law in Uganda regulating
the procedure for preparing witness statements, the practice is majorly guides by
different courts and different judges whose approach on the subject is also not
similar. Although this seems to be the case, there are several principles and
guidelines in preparing witness statements. Let’s look at some of these hereunder;

Principle 01: the statement should be of the witness and not submissions of
Counsel representing the party

This principle must be respected: the statement should be the evidence of the witness
and should cover only those matters to which he can properly speak to.” (emphasis
added).

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Principle 02: the purpose of a statement is to record the evidence of a witness

The purpose of a statement is to record the evidence of a witness. The court does not
expect to receive a document which is in large measure framed by lawyers and
which uses language which the witness would not use. Words should not be put
into a witness’s mouth. If a party produces such a document as the evidence of
the witness, it is likely that it will receive little weight from the court and it may in
some circumstances significantly damage a party’s case. Equally, if it appears that
a witness has been improperly tutored in his evidence, the court is likely to discount his
evidence. In preparing such statements, legal advisers should bear in mind that a
witness may have to justify on cross-examination all the information contained in his or
her statement.

Principle 03: Care needs to be taken and the witness must be given time to
consider the statement

Care should be taken to ensure that the witness’s testimony is accurately

represented. A witness should also be given the opportunity to consider
carefully what the draft statement says and to confirm its terms or instruct
its amendment before he is asked to sign the statement. The legal advisers
should also inform him that he may be cross-examined on his statement in court.
The wording from the judgment of Peter Smith J in A & E Television Networks
LLC -v- Discovery Communications Europe Limited [2013] EWHC 209 (Ch):

This case demonstrates the need for solicitors preparing witness statements to
curb their enthusiasm in seeking to obtain the best for their clients. It must not be
forgotten that witness statements are merely a replacement for evidence
which a witness previously used to give live in chief. It is intended to be the
factual evidence of the witness in his own words. Too often witness
statements are drafted by solicitors who put words in their mouth to achieve

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a better result. Witness statements can then be changed from drafts to a later
stage without the witness understanding the significance of the change.

Principle 04: Avoid hearsay statements

Further when preparing hearsay statements it is even more incumbent on the

advocates not to manufacture things to put that evidence in the best light for their
clients. The Court will not have any opportunity to explore that evidence with
live witnesses and the duty on the advocate or counsel is therefore even more
clear to confine witness statements to what the witness would have said in his own
words had he or she been giving evidence.

Equally I do not think it is appropriate for a witness to have his statement taken
from him when he does not realise that it is being taken from him for the purpose
of giving evidence. That too is unfair. Further when such a person objects to giving
evidence it cannot be appropriate in my view for that statement which has been
taken down to be served up as a hearsay statement without reference to that
potential witness (the more so when he has said he does not want to give
evidence). Without the investigations in cross examination in this case none of the
actual defectiveness of the hearsay statements would have come to light.

2.2 DRAFTING WITNESS STATEMENTS

The art of drafting witness statements is yet another skill advocates should
properly learn. The dictum below presents a very unfortunate situation in as far as
drafting witness statements is concerned.

HH Judge Oliver-Jones QC (Smith –v- J&M Morris (Electrical Contractors)

Limited. [2009] EWHC 0025 (QB):

“I have often had occasion to remark about the failure to comply with the CPR so far as
witness statements are concerned, as well as the obvious lack of skills of witnesses, and
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those acting for litigants, in formulating them. It is not infrequently the case that
witness statements prepared by litigants-in-person are superior in form and
substance to those prepared by solicitors or their agents based upon
questionnaires, interviews (often by telephone) or correspondence with witnesses.
It is often the case that witness statements, drafted by solicitors or their agents in good
faith ( I exclude, of course, any case of deliberate intent to deceive by a witness or drafter),
are signed or otherwise accepted by witnesses without any or any proper consideration
of their accuracy, completeness or even truth”.

Following that dictum, “4 GOLDEN RULES” have been suggested in drafting

witness statements. Let’s deal with these rules now.

Any one preparing a witness statement of any of your witness, you should take
care to observe 4 ‘golden rules’:

1) the witness statement should ‘tell the story’ in chronological order;

2) the factual issues in the case should all be dealt with;
3) the witness statement is a statement of fact, not opinion; and
4) the witness statement must be true.

Golden Rule 01: the witness statement should ‘tell the story’ in chronological order
You should not forget that you (almost certainly) will have personal knowledge of
the events covered by the witness statement. The Judge will not. It is important
both that you cover all the necessary background and that you do so in
chronological order. Your aim should be to get your side of the story across
to the Judge. To do so draft the statement in clear language. A statement
which does not cover the material in chronological sequence is likely to
confuse. If, as advised, you have prepared a chronology this will help you when
preparing your witness statements. But discretion is required. Setting out the
necessary background is very helpful, but including a wealth of material that
is not essential is likely to detract from the important parts of the statement.
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Nevertheless it is necessary to include everything that might be important because

the Judge may not allow you to give evidence of additional matters which could
have been, but were not, included in your witness statement or the witness
statements of your witnesses. Use your discretion. If in doubt include the material
in the statement.

Golden Rule 02: the factual issues in the case should all be dealt with
By the time witness statements are prepared and exchanged, most times;

(i) the pleadings (statements of case) will be completed and

(ii) discovery and inspection will have taken place. You will be able to work
out what issues of fact exist between you and your opponent.

Review those issues in the light of any new documents thrown up by disclosure.
The sensible litigant prepares a list of these issues, and makes sure that all
the issues are covered in his witness evidence. Not every witness will be
able to deal with every issue, but every witness who can deal with an issue
should cover it in his statement. If any issue is not covered by a witness
statement you should do all you can to find a witness who can deal with the issue
in question.

Golden Rule 03: a witness statement is a statement of fact, not opinion

A witness statement must be confined to statements of fact, without any
expression of opinion. Only expert witnesses are permitted to give opinion
evidence. Occasionally an opinion is included in a witness statement. Once
this is identified the Judge will have no difficulty in putting a line through it
both metaphorically and practically so you do not have to worry if the odd
opinion slips into one of your witness statements. However, unguarded opinions
from yourself or your witnesses can sometimes affect your case adversely. It

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is better to stick to the rules and make sure that there are no statements of
opinion in any of the witness statements you rely on.

Golden Rule 04: the witness statement must be true

In all but the exceptional case each witness’s statement will “stand as his evidence
in chief”. By this is meant that, provided the witness (on oath or affirmation)
confirms the truth of his statement when he is called to give evidence at trial, the
statement will form part of the evidence in the case. It is critical therefore that you
make sure that the maker of each statement, and yourself as the litigant on whose
behalf the maker is being called to give evidence, checks the statement carefully
(cross-referring to the documents and other witness statements as necessary)
before signing it as true. Too often (indeed far too often) witnesses who have
had statements prepared for them by counsel tell the Judge that matters in
the statement are not correct; they say (all too believably) that they simply
signed what the counsel 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. Accordingly, it is most
important that, as far as possible, you make sure that each witness
statement is in the witness’ own words, and that it is checked very carefully
before it is verified by the witness as true.

2.3 Duty of Counsel Preparing a Witness Statement

Counsel in civil proceedings are typically involved in preparing witness statements.
However, the courts have emphasised that a witness statement must, so far as
possible, be in the witness's own words: see e.g. Aquarius Financial Enterprises
Inc. v Certain Underwriters at Lloyd's [2001] 2 Ll Rep. 542 at 547. When settling
witness statements, great care must be taken to avoid any suggestion that;

a) the evidence in the witness statement has been manufactured by the legal
representatives; or
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b) the witness had been influenced to alter the evidence which he or she would
otherwise have given.

The legal advisers, including – where appropriate – counsel, can consider the draft
statement to ensure that the witness has covered the relevant matters to which he
can speak. They can also seek to clarify ambiguous statements within his
evidence when his statement is in draft, and seek his comments on documents
and other materials which might appear to raise questions about the accuracy of
his recollection. Where there are matters, which the legal advisers think he might
be able to address, they can properly ask him whether he can give evidence on
those subjects. They can show him documents which he might have seen at the
time, and if he had seen them, ask for his comments on them. Where the witness
comments on documents which he had not seen at the relevant time, the fact that
he had not seen them then should be made clear in his statement.

You should also take note of the following guide;

Guide 01: Preparing a good witness statement is hard work and time consuming

You should never leave it to the last minute. Unless the maker of the statement
has an exceptional natural fluency, you will probably find that a statement has to
go through several drafts before it reaches a state where it covers all the necessary
material in a clear manner, and the witness is confident that it is all accurate. In
this regard a word processer is very useful. Never forget that at trial you will be
questioned on your witness statement and your witnesses on theirs. Get it right.
Do not leave hostages to fortune.

Guide 02: Where it is sensible to do so, you should divide the statement into
separate sections each with its own heading or sub-heading.

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For example in a building claim, if there are problems with the roof, and with the
windows, and with the doors, the evidence relating to the roof could be put under
the heading “Roof”, and the evidence about the windows and doors under separate
headings “Windows” and “Doors”. Each section will probably be best dealt with in
chronological sequence. The fact that the chronologies of the individual sections
will overlap will not matter; the Judge is likely to consider the evidence under each
section separately.

Guide 03: It is essential that every witness statement is divided into numbered
paragraphs

These paragraphs should not be too long, and it is very unwise to include evidence
on two distinct matters in the same paragraph. You may separate them and
present your statements in a chronological way.

Guide 04: Attach relevant documents to your statement

A witness statement may refer to one or more documents; it is often important that
it does. By the date of exchange of witness statements all relevant documents
should have been disclosed, but if a document not previously disclosed is referred
to in a witness statement the opposing party may require disclosure of it. It is a
common practice amongst advocates to attach to the witness statement
copies of all documents referred to in that witness statement. This is not
necessary where it is clear what document is being referred to, and if a proper list
of documents has been served by the party it is perfectly sensible to save the
copying and refer, for example, to ‘the invoice no.35 of the Claimant’s list of
documents’ on pg. 5 of the Trial Bundle”

Guide 05: The evidence in a witness statement must not be partial

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It must contain the truth, the whole truth and nothing but the truth in respect of the
matters on which the witness proposes to give evidence (see Handbook; Chancery
Guide 2016, Chapter 19; Queen's Bench Guide, 2016, paras. 7.9.2 to 7.9.5;
Admiralty and Commercial Courts Guide, para. H.1.)

One should remember that “great care... must be taken in the preparation of
witness statements. No pressure of any kind should be placed on a witness to give
other than a true and complete account of his or her evidence. It is improper to
serve a witness statement which is known to be false or which the maker does not
in all respects actually believe to be true” (Chancery Guide 2016, para. 19.6).

One should also remember that “a professional adviser may be under an obligation
to check, where practicable, the truth of facts stated in a witness statement if you
are put on enquiry as to their truth” (Chancery Guide 2016, para. 19.6). For
example, you may be put on enquiry in relation to witness X’s evidence, because
witness Y’s evidence contradicts it, or because there is documentation which
contradicts it. However, whilst you may be entitled or obliged to check the
evidence “it is not for you to decide whether your client’s case is to be believed”.

You are entitled and it may often be appropriate to draw to the witness’ attention
[to] other evidence which appears to conflict with what the witness is saying and
you are entitled to indicate that a court may find a particular piece of evidence
difficult to accept. If the witness maintains that the evidence is true, it should be
recorded in the witness statement and you will not be misleading the court if you
call the witness to confirm their witness statement.

Equally there may be circumstances where you call a hostile witness whose
evidence you are instructed is untrue. Where there is evidence which clearly
contradicts a witness it may be that the duty to not knowingly or recklessly mislead
the court comes into play, so that whilst the questionable evidence can be put
forward, counsel may have a duty also to ensure that the contradictory evidence
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is drawn to the court’s attention. In this aspect regard must be had to “knowingly
misleading the court includes being complicit in another person misleading the
court… recklessly means being indifferent to the truth, or not caring whether
something is true or false”.

Counsel has a duty, therefore, to ensure that such notice is given if counsel
becomes aware that a witness statement contains material which is incorrect: for
example, if a client were to inform you that an earlier statement or instruction, now
contained in a witness statement, was incorrect or untrue. However, if you only
suspect or believe your instructions (and evidence reflecting them) to be untrue,
for example because of contradictory evidence or documents, then it is not for you
to decide whether this is in fact the case.

The Civil Procedure (Amendment) Rules of 2019 S.I. No. 33 of 2019

Under Rule 5 on the Amendment of Order 43, the above principles have been
codified and made specific provisions for the drafting, filing, service and tendering
of witness statements in court. They also provide for the content that should be
covered by witness statements. Rule 5(10) defines a witness statement to mean
written testimony signed by a witness and filed in court and served on the opposite
party for purposed of having it tendered in court as the evidence in chief of the
witness.

Rule 5(2) provides that a witness must appear in court and take oath before their
statement is tendered as evidence in chief. Rules 5(5) then provides that
statements of witnesses who do not appear in court should be expunged from the
record. The only except to this being where parties consent to the statement
remaining on record.

Rule 5(3) allows witnesses to correct errors in the statements which do not go to
the substance of the testimony and with leave of court. Rules 5(8) provides for the

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content of a witness statement and Rule 5(6) makes the timelines for filing a
witness statement mandatory. Lastly, Rule 5(7) prohibits the hearing of witnesses
without witness statements except with Court’s leave.

2.4 Witness preparation

It is important to note that while witness coaching is prohibited, a process of

witness preparation is permissible and desirable, may extend to advising
witnesses as to the basic requirements for giving evidence, in order to assist
witnesses to give their best at the trial or hearing but risking their evidence
becoming anything other than their own uncontaminated evidence.

The following approach is suggested in relation to any witness preparation process

for the purpose of civil proceedings:

a) Any witness preparation process should normally be supervised or

conducted by a counsel.
b) In any discussions with witnesses regarding the process of giving evidence,
great care must be taken not to do or say anything which could be
interpreted as suggesting what the witness should say, or how he or she
should express himself or herself in the witness box: that would be
coaching.
c) Counsel should only approve or take part in a mock examination-in-chief,
cross-examination or re-examination of witnesses who are to give oral
evidence in the proceedings in question if, and only if:
1) Its purpose is simply to give a witness greater familiarity with and
confidence in the process of giving oral evidence;
2) There is no risk that it might enable a witness to add a specious quality
to his or her evidence; and
3) In conducting any such mock exercises, counsel does not rehearse,
practice or coach a witness in relation to his/her evidence.
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FURTHER REFERENCES/READING:

1) Modern Trial Advocacy, Steven Lubet, , (4th Edition)

2) Advocacy, David Ross QC
3) First Steps in Advocacy, Leo Page
4) Duty and Art in Advocacy, Hon. Sir Malcolm Hilbery
5) David Stock wood Q.C., Civil Litigation, 5th Edition, (2004)
6) John N. Munkman, the Technique of Advocacy, (1991), Butterworths.
7) The Civil Procedure (Amendment) Rules of 2019

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23 Module 03: Examination in Chief and Witness Statements, Bar course, Lecture notes, 2020/2021