How to successfully challenge witness statements

May 14, 2013

Witness statements are a crucial part of any case. Their purpose is to show the case in its strongest light.  Indeed, a case may be won or lost on the strength of the witness evidence and (assuming the case goes that far) the performance of the witness at trial.  It is important, therefore, to ensure that witness statements are accurate and comprehensive.  This cardinal principle applies to both sides in litigation, so whether you are an agent or a principal embroiled in a legal battle, you might be able to obtain a tactical advantage over your opponent if you can show that their witness statements do not accurately reflect their evidence in the case.

You will have the opportunity to review your opponent’s witness statements when exchange takes place.  You should consider whether there are factual inaccuracies in the evidence contained in those statements.  Even if your comments do not go as far as disputing the accuracy of the evidence contained in your opponent’s statements, they will undoubtedly be helpful in preparing for the trial.

If, however, there are clear factual inaccuracies contained in your opponent’s witness statements, you may be able to successfully challenge those statements by doing any of the following:

Before trial:
1.    Prepare a supplemental witness statement to identify and deal with the factual inaccuracies contained in your opponent’s statements.  Alternatively, it may be possible to apply to strike out parts of your opponent’s witness statements (for example, on the ground that the evidence is inadmissible).

2.    If your opponent has referred to documents in their witness statements that you have not yet seen as part of their disclosure, then you may ask to inspect such documents.  This can help to apply pressure to your opponent, particularly if the documents are ones that you would otherwise not be entitled to see, and ones that your opponent probably does not want you to see!

At trial:
3.    The trial judge’s attention may be drawn to any evidence that appears to conflict with what your opponent’s witness is saying.  The court may find such evidence difficult to accept and will judge the correctness of the witness’s evidence accordingly.

4.    If there is no conflict, the aim will be to attack your opponent’s case by challenging the evidence on which their case is based.  Cross-examination will be used to put your opponent’s case under the microscope and highlight any factual points on which your opponent’s case differs to your own.  This may establish that the other side’s evidence is incorrect, misleading or otherwise unreliable.

5.    When reviewing your opponent’s witness statements before trial, it is a good idea to look closely at the words used.  The function of a witness statement is to set out in writing the evidence in chief of the maker of the statement.  The words used by the witness in the statement must, therefore, be their own.  You will know the type of language used by your principal or agent better than your lawyer, so where it looks as though the language used is not their own, this may indicate that their lawyer has been too heavily involved in the drafting.  Where this is the case, some fun can be had in cross examination:

“Mr Bloggs, you say that you carried out your duties fastidiously and acted at all times with diligence and care.  What do you understand as the meaning of the word ‘fastidiously’?”  (Silence).

Settlement:
Cases often settle between service of witness statements and commencement of trial.  Therefore, the cogency of witness statements (or lack of it) served by your opponent is always a relevant factor in deciding whether to settle.  If the witness statements are really those of the lawyer then a thoroughly misleading impression is being put forward as to the strength of the evidence.  Where this appears to be the case, this could increase your bargaining position if an when it comes to negotiating a settlement.

Whilst the above may give you a tactical advantage over your opponent, the actual consequences of making a false statement are serious.  If a witness makes a false statement without an honest belief in its truth, he may be found to be in contempt of court and held liable to pay a fine or imprisoned.
The golden rule that needs to be kept in mind by both sides to the dispute is that, once you have made your statement you will later be required to enter the witness box, where you will swear or affirm that the evidence you have given is the truth.  The most important thing to do when giving a witness statement is, therefore, to do exactly what the oath requires of you: tell the truth, the whole truth and nothing but the truth.

 

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Rebecca Richardson
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