When Luis Suárez ended up in front of the FA tribunal in the race row with Patrice Evra, both appeared as witnesses - and what we heard determined the case

What is the similarity between an incident in a football match and a construction dispute? At first this sounds like another awful Christmas cracker question. The answer is that in both you can win or lose your case because of a witness. The recent spat between Luis Suárez and Patrice Evra is a good example of the role
and risks of witnesses in litigation. The FA tribunal’s reasons provide some examples of why witnesses can be so important in determining the outcome in any litigation.

For those not familiar with the Suárez incident, a brief recap. Suárez fouled Evra and minutes later Evra got his chance to challenge Suárez about that verbally. Evra did so in robust terms to which Suárez responded in allegedly stronger terms. They continued to exchange comments and after the match Evra reported that Suárez had racially abused him. The behaviour, comments and conduct of Suárez came before an FA tribunal. So did both Evra and Suárez as witnesses.

Time and time again witnesses try to read the questioning, second guess where it is going and avoid giving a straight answer

The first risk with calling a witness is what the court or tribunal makes of them. While what Evra had said at the outset of their exchanges was potentially in breach of regulations, the tribunal found that Evra was an honest and straightforward witness. No doubt his honesty in being clear as to what he said at the beginning of the exchange helped in that regard. However, in contrast, the tribunal did not find favour with Suárez. They found him to be inconsistent and difficult to pin down to direct answers to questions. The problems started for Suárez when he said that he was responding to provocation from Evra. Evra admitted what he said and video evidence showed that both were aggressive and agitated in manner. However, Suárez sought to say that the racially offensive term he had used was not in fact intended to be offensive but was used in a friendly manner as one might use it, at least in South America, between friends or family members. His explanation that the term he used was innocent did not fit with the idea that he used it when responding to provocation. The tribunal did not therefore buy in to Suárez’s account and in terms of the battle of credibility between the two witnesses, Evra came out on top.

The second issue in relation to witnesses is consistency. One of the problems with a witness giving evidence is that you never know if they are going to say exactly what they said when they gave the details for their statement. The pressure of the environment and the questioning has a way of revealing small inconsistencies that become more significant. Suárez had given a detailed witness statement but when it came to the hearing he did not stick to that position. Instead, he appeared to vary his position apparently because of the way the other evidence was going. His side attempted to explain away the inconsistencies between his written witness evidence and his oral evidence. Those attempts were not assisted by the fact that it had been made clear that his statement had been very carefully prepared given certain issues in relation to language and translation. Therefore, the tribunal was extremely concerned at the inconsistencies between the written witness statement and the oral evidence given. This illustrates the problem with preparing a statement for a witness. A statement should be prepared in the witness’s own words but most witnesses want their statement prepared with the assistance of an experienced legal adviser.

As a result there is always the risk that the statement has content or a tone that is subtly different to what the witness will actually say in evidence. That represents a substantial risk which can be exploited by cross examination.

The third issue the Suárez case illustrates is the need for a witness to be consistent with the evidence of others and documentary evidence. Both Suárez and other witnesses from his club sought to move away from or vary the evidence that they had given previously. The tribunal took a dim view of this.

The fourth issue is the need to answer the question. Sounds simple, but time and time again witnesses try to read the questioning, second guess where it is going and avoid giving a straight answer. Suárez was noted as evasive in relation to specific questioning about specific events. The tribunal records in its decision a whole series of questions put to him on a specific point where he pretty much had to give a yes or no answer. He didn’t. Instead, he tried every which way not to answer the issue directly. When this happens, it is not so much the answer that you might have given which does the damage, it is the failure to answer directly.

It is often said that a witness cannot win you a case but can only lose you a case. The Suárez incident perfectly illustrated that. Worth a thought next time you need to rely on a witness.

James Bessey is a partner in the construction department at Cobbetts