Handcrafted witness statements represent clever pieces of advocacy - but this is not the function that they are supposed to serve. Facts are required, not opinions

Tony Bingham

I am being beautifully bombarded. The beauty is in handcrafted witness statements. They are so well done. Daft, but well done. These days every adjudication, arbitration, litigation, will see files galore. And in the files will be the written evidence of, say, the contracts manager, surveyor, architect, foreman, or tea lady. 

They are the direct evidence of what the witness saw, heard, touched, smelled. And in arbitration or litigation they convert at the hearing into sworn testimony, the whole truth of facts - no massaging and no spin. If all that is the way of truth and light you stay away from trouble. But the arts and crafts of these witness statements is wearing a bit thin. Let me explain.

In a case recently, J D Weatherspoon Plc, the pub folk, had a building dispute. Their lawyers became miffed by a hand-crafted beautifully written witness statement compiled, it is said, by a witness for one of the opposing parties.  They want it struck out. It’s not the witnesses’ evidence at all, they say - instead it’s a piece of excellent advocacy. The bloke has taken all the files and correspondence and not only recited and re-recited what the documents say, but compiled a commentary on those documents, arguments, submissions and is full of opinion about the dispute. And I said: “So what’s new about doing that?” It goes on time and time again. The judge struck it out, or nearly all of it. 

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Look, let me tell you what a witness statement is supposed to be: it is a written statement signed by a person which contains evidence which that person would be allowed to give orally. It is not a recital of relevant events of which the person does not have direct knowledge nor can he advance arguments as if an advocate. 

A witness statement should cover those issues, and only those issues which the representative or lawyer wishes that witness to give by what is called evidence in chief. The statement is not to deal with other matters merely because they arise in the course of a hearing. 

So, why and when are witness statements sometimes daft? I will give you three circumstances and one consequence. 

First, in these 25 years of the procedural idea of exchanging witness statements between the opponent parties we have lost sight of this cost-saving idea. It was intended to reduce time in court. It has, but the expense of compiling these works of art is now frequently unacceptable. The document is honed by solicitors and counsel through tiers of re-drafting. We lawyers charge by the minute - the rate is somewhat more than the day-work rate for a chippie. 

Then we find that the statement is cross-referenced to bundles of documents (more hours). In the end the pack of papers takes on the appearance of legal pleadings. 

Second, all this refining and drafting becomes the work of the lawyer, not the witness. No lawyer is allowed to invent nor slant evidence, but the document often takes on the appearance of handy-work. Guess what that does to the witness’ credibility? And if the document is not the actual work of the witness, then you may expect to find it in the waste bin. 

A third downside to all this is that no one actually hears the statements coming out of the witnesses’ mouth. In a hearing the witness is asked to merely confirm that this is their written evidence and then handed over for cross-examination. It’s not entirely satisfactory to merely hear the contract manager being cross-examined, being guarded, being coy. In any case, a cross-examined witness is under attack - they can be confused and even tricked.  I don’t want a frightened or bullied witness. 

What I want is the witness’ own words. By all means, you lawyers put your questions to your witness. Put those questions onto the paper. Then I want the foreman’s answers - bad language and all. Let him tell me what happened as a fact. You can even tell me why, even if that’s opinion in every day life terms. But I don’t want expert opinion.

Keep it short. Try hard not to attach a bundle of papers and keep to a chronology. One more thing … tell the truth. And tell your lawyers to clear off if they try to tinker with what you have said. Just refuse to sign. Why? It bleeds through if it is not your own work.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple