When you have to make a witness statement for court, you can avoid slip-ups
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in interim applications: when an application is filed, the application notice (called a notice of motion in some countries) is supported by evidence. This is known as "evidence in support".
Evidence may be made up of one or more witness statements. The evidence that a party files in response to the evidence in support is known as the "evidence in response". After that, the party filing the application notice has a further opportunity to file evidence, to respond to the evidence in response. This is known as "evidence in reply", and sometimes "evidence in answer". Typical interim applications include: interim injunctions: Freezing Orders: preserve property pending the trial Search Orders: preserve evidence pending the trial Quia Timet Injunctions: prevent continuation of unlawful conduct pending the trial strike out applications summary judgment applications setting aside default judgment The form of witness statements First page: Case Title Witness statements have a prescribed form. Witness statement should set this information out on the first page: the title of the proceedings the name of the person making the statement the party to the proceedings on whose behalf the statement was made the exhibits made in conjunction with the witness statement the date it was made the number of witness statement of the witness making the witness statement. The case title makes it clear on the first page the legal proceedings witness statement is made for, and who made it. Section: Identifying yourself Following the case title comes a statement identifying the deponent - the person signing the witness statement. It has a prescribed form Section: The Narrative This is the business end of the witness statement. Having set out the context of your witness statement, the reason why it was written, the documents that will be referred to, it is time to tell your story. Everyone drafts witness statements differently. To make it easy to read: Use short sentences and paragraphs, where possible Keep it as concise and to the point as possible Use correct capitalisation and punctuation Avoid huge blocks of text It's OK to introduce documents and explain them if they need it, but don't provide extensive commentaries or opinions. That is for arguments to be put to the judge at the hearing. In this narrative, you're telling your story. You can only give evidence of what is in your personal knowledge. It helps to have documents which back it up. The exceptions include when someone has told you something, and you believe it. Again, preferably with documents, such as emails or instant message transcripts, if they exist. It really is difficult to overemphasise the importance of making it clear that facts of information and belief (and not within your own personal knowledge), indicating the source for any matters of information and belief. It's an important distinction to make, because one is direct evidence, the other is not. Other things to bear in mind: If you refer to someone, introduce them by giving their full name and position or role with their employer, or some other description to explain why you are mentioning them If you refer to a company or incorporated legal entity, state its full name, address and the sort of business it is engaged in (software developers, mechanics, consultants or suppliers as the case may be) If you have any doubts or reservations about what you say, state them. You don’t want to be accused of misleading the court by leaving a false impression. If possible, include answers to questions that you are likely to be asked by someone reading your statement. You’re likely to be asked in cross-examination anyway in due course. Section: The Ending – The Statement of Truth Witness statements have to be signed with a statement of truth. The statement of truth for witness statements is: I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Statements of truth verify that you believe the facts stated in the document to be true and accurate: you have an honest belief in the truth of what you say. You sign and date the witness statement under the statement of truth. The capacity of the person making the witness statement should be made clear. For instance, where the claimant is an individual and signs the statement of truth, it might appear like this: I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. ........................................ Ralph Rogers The Claimant [date] If the witness statement is made for a company which is say the second defendant in the case, it would read like this: I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. [signed] ........................................ Ralph Rogers [Director] [Chief Operating Officer] for the [Second] Defendant [date] The exhibits should be completed, printed and in front of you, with the witness statement at the time that you sign it. Sure you can do it electronically. But you'll want the exhibits to be in a single document (usually a PDF), paginated and with the exhibit coversheet so that there can be no confusion about what the exhibits contain. We prefer to print everything and then scan everything after it's all signed. It's a safer approach to avoid muddling the order of documents. Nothing should be changed in the document after you sign it. If you want to make changes, you should re-prepare another version for signing and sign it all over again. Before you serve it. The consequences of signing a witness statement or other document verified by a statement of truth - without a genuine belief in the truth of what is said in it - are well, serious. Changing your witness statement After you finish and sign your statement, your recollection may change. You need to consider whether you need to put in another witness statement to avoid the other party – and the court – being misled by your witness statement. The changed evidence should be part of a further witness statement, which is served on the other parties. Statements of truth used for expert evidence differ. The reason is that experts owe an overriding duty to the court. More on that below. Preparing Exhibits to Witness Statements Documents which are referred to in a witness statement are organised into one or more exhibits. They are part of the witness statement, although the exhibits may not be attached to it. When you sign the witness statement, each exhibit should be: complete have numbered pages (bottom right-hand corner; "1", "2", "3" and so on), or even better [Exhibit Reference] / [page number], and have an exhibit cover-sheet. The numbered pages allow you to refer to page numbers of the exhibit in your witness statement. You can find the page to the exhibit in your witness statement at hearings quickly. It is better for both you and the judge (which is the person you’re trying to impress). An index to exhibits really helps as well when they contain many documents, because it helps locate individual documents in large exhibits. If there are many documents and they can be categorised, they really should be split up into different exhibits. Suppose a person named Ralph Rogers makes a witness statement. It has 3 exhibits. Let's say it's his second witness statement. His first witness statement had two exhibits, "RR01" and "RR02". The exhibits to his second statement would be marked "RR03", "RR04" and "RR05". Each would be stapled separately or put into a folder where there are lots of pages which are too big to be stapled. Check out the template exhibit cover sheet below. It is a good idea to exhibit documents in this way because: the documents support your case it serves as a reminder to you of why you said something in your witness statement it's more difficult to criticise your witness statement for lack of documentary support you protect yourself by ensuring that what you say is referable to a specific document when you refer to a document, you are able to refer to different parts of it, with the context of what you say in your statement if there is anything unusual about the document, you are able to comment on it the judge will be able to see what you are talking about, rather than have to work it out or guess what you are talking about (and then seek clarification at the hearing) your cross-examination will be either be harder or more focused, because you've kept yourself what you can say, without sounding like a strange person that draws wild and baseless conclusions. Also: if any of the pages are illegible because the printing is faint, you should type up a copy and exhibit it with the best copy you are able to make of the poor quality document No point putting in evidence that the judge and the other parties can't read bundles of letters, emails and messages (such as WhatsApp and text messages) should be in chronological order, so that the earliest letter is at the top and the most recent at the bottom. Finally, at the same time you sign the statement of truth, you must verify that each exhibit is authentic. You do so by signing (or writing and signing) a statement on the exhibit cover sheet. The statement usually says: I verify that this is the exhibit marked '[exhibit reference]' to my [number] witness statement dated [date]. By the way, it's a good idea to spell out the date, rather than use the format "04/05/[year]". You'd use "4 May [year]". Writing a Good Witness Statement The Importance of Context When preparing your witness statement it's a good rule of thumb to exhibit documents to the witness statement which support the facts you state. For instance, suppose you are in a case where the other party alleges that you misappropriated their confidential information, and then used it to make a copy their invention. In this hypothetical, you didn’t. You made it yourself, independently of the other party over a period of months or years. To make out your defence, you need a witness statement for trial. The court will be interested to find out how you developed your own invention. It would make sense to cover the development process, step-by-step over time. Turn of Events You could just tell the story that: In one month you were doing research, then you created the proof of concept in the next month. After that might come the internal testing and analysis of results. Then you released the minimum viable product and did marketing, testing and received some feedback. And it was after that was the first you heard of the claimant: when they wrote to you claiming that you'd copied their invention. Bare statements of fact setting out a chronology of events is, well, better than nothing. But it has little weight. There is no independent evidence to support what you say. Documentary Support for Witness Statements Let’s say that after you prepare that basic chronology, you go off to your archives. You start looking for documents and materials which support what you say. Like emails and notes that show the timing of events in the development. Here’s what you mind find: notes of your observations of testing, results of failed tests, notes for improvements performance results from proofs of concepts versions of the invention email communications with potential suppliers discussions with others in the market social media posts photographs of materials used in your research contracts with suppliers engaged photographs from trade shows This sort of evidence is "relevant" because it shows – or tends to show – that you were developing and did develop the invention independently of the person who says you didn't. Think about it. If evidence of this sort is included, your witness statement moves from being an unsupported story, to one backed by evidence which holds its own weight. And a good arguable defence. The documents you have found add credibility and believability to the witness statement. And it's the same with causes of action other than breach of confidentiality, such as the common claims encountered in commercial litigation such as: breach of contract civil fraud negligent misrepresentation conversion, or conspiracy. Omissions Often a story can be told and details are left out for brevity or impact. Witness statements are not the place to do this. If you know anything and it is left out, which leaves what is said in the witness statement untrue or misleading, you really do need to include the extra information. You need to be able to stand by the statement and tell the truth, the whole truth and nothing but the truth. Crime dramas might have made this sound a bit stale, tied or a bit worn. You need to re-sensitise yourself to the truth when you are preparing your witness statement. To get a sense of how courts treat misleading information, check out this article on clean hands. Self-contained Ideally, the reader of your witness statement shouldn’t have to refer to any other document to understand your witness statement. This doesn’t mean duplicating copies of documents across multiple witness statements. For instance, it’s usually quite OK to refer to documents exhibited to someone else’s witness statement. Jargon If any jargon or industry specific language needs to be used, it should be explained succinctly. So if you need to refer to say, software-as-a-service, you might add that it is services delivered by software from a central server in a web browser, where the user does not have a locally installed copy of the software. Proofing your Statement Hopefully, you will not find yourself in a position where you need to sign your witness statement on the same day that you have to file and/or serve it. You're better off if you plan to have a final version ready for proofing 7 days before it needs to be filed and/or served. When you are reading over your statement, try to spot ambiguities and gaps in reasoning or the flow of the statement. If there are gaps, fill them in so that each step follows logically and sensibly from the previous statement (or heading). If you've told the story - the narrative - in the sequence that they took place (ie chronological order), they'll be obvious. Don't think that if you mix up the order of events that the other party won't spend time finding the gaps and inconsistencies. Assume that effort will be made, because cross-examination is truly devastating to a witnesses' credibility: ie "believability". Opinion Evidence Some straight-talking. Court decide facts based on the evidence, on the balance of probabilities. Witness statements are used to prove facts which are alleged in statements of case. It is not for witnesses to express opinions or arguments. Sure explain the evidence presented if it does not make sense. One of the unique features of courts is that the judges form their own view from the evidence, and decide the facts. The advocate - usually a barrister if the other party is legally represented - present arguments to the judge based on the evidence before the court. They also make submissions on glaring omissions and inconsistencies in witnesses' evidence. You really do devalue your witness statement when you state opinions. If a court needs an opinion, it will make orders in case management directions for the parties to have a qualified expert to receive relevant evidence from the parties and prepare a formal expert report. In that report, the expert may express a reasoned opinion based on the evidence set out in the report. Otherwise, some courts have some tolerance for opinions. You'll want to make sure the opinion is supported by what you say in your witness statement. This is so that opinion can be proved - or at least demonstrated - objectively. So your witness statement is not the place for: personal opinions prejudicial comments criticising others opinions on the issues in dispute in the court proceedings, which the court needs to decide. Try to avoid giving opinions unless you are formally qualified to give one, and it is objectively provable. The Trial: Some Context The more important witness statements in legal proceedings are used at the trial. There's a lot to think through and do if you're representing yourself in court. When you are to appear at the trial as a witness though, you're usually invited to sit in court and listen to the evidence of the other witnesses. If however some unfair advantage might be obtained – or perceived to be obtained – you might be asked wait outside court until you are called to give evidence. Above, we mentioned the old procedure of giving evidence in chief orally. You are at court to be asked questions about what you have said in your statement to assist the court arrive at the truth. The Truth in Witness Statements Even if you're a party to the proceedings, it's your overriding duty to tell the unvarnished truth, politely and respectfully. If you start to advocate your own case or take a side, everyone notices. All witnesses are still sworn in today. Part of the oath or affirmation are the words, that the evidence you will give will be "the truth, the whole truth, and nothing but the truth". Let’s break this down: the truth: Simple. Tell the truth. the whole truth: Don’t leave anything out that would make your evidence misleading. For instance, if you were told that something happened and didn’t see it yourself, say so. nothing but the truth: Don’t twist anything to give the wrong impression. And so it should be with your witness statement. Witness statements are taken as the evidence in chief of the witness at the trial unless the court orders otherwise. Evidence in chief is the evidence that the witness gives in support of the case of the litigant for whom the statement was made. At the trial, witnesses are usually limited to speaking to matters referred to in their witness statement, unless there is a good reason to expand upon those matters. Witnesses are required to attend court for cross-examination by the opposing parties in the litigation if required to do so by the court or the opposing parties. Where witnesses do not appear for cross-examination, the evidence is treated as hearsay evidence and of no value or weight. Cross-examination may relate any matter that the witness is able to deal with in respect to the issues in dispute in the litigation and your credibility. As such, cross-examination is not limited to matters referred to in the witness statement – including statements made outside court which are inconsistent with the evidence given in the witness statement. When you are questioned in court The dynamic in court is this. Barristers ask you questions. The barrister is really asking questions on behalf of the judge. So when the barrister asks you questions, you look at them. When you answer the question, you look at the judge. Once you've completed answering the question, you look back at the person asking you the questions. FAQs: Can you be forced to give a witness statement? What can happen if you do not go to court? Are witness statements confidential? Are Witness Statements on the Public Record? Who gets to see witness statements? What if a witness statement is not signed? Differences: Affidavits vs Witness Statements Can a witness statement be signed electronically? Can you withdraw or retract a witness statement? What is a Lay Witness Statement? What is Expert Evidence? What is the Statement of Truth that experts have to sign? Is a Witness Statement a Statement of Case? How Witness Statements (and witnesses) are tested You may wonder how courts assess witness statements and your performance in court. There are a few established and fundamental principles on how courts go about testing witness statements and the evidence given by witnesses. Credibility of Witnesses One of the central concepts here is credibility. Where a witness maintains their credibility, they are more likely to be believed. Witnesses are assessed in the same way the evidence presented in their witness statement (ie scrutinised to the nth degree) and their performance in the witness box under cross-examination. Again, the court’s overall job is to decide the truth. Courts have long recognised that it is difficult to tell whether a witness is telling the truth or not. Courts can take into account any material before the court, and the behaviour of the witness in court. Judges do this for a living. They are good at it. Common-sense also plays a large part when assessing a witness, especially where there is a conflict in the evidence. A witness’s motives and overall probabilities of what they say also plays a large part: Robert Goff LJ in The Ocean Frost (Armagas Ltd v Mundogas SA [1985] UKHL 11). And then, the barristers will be able to make comments on any witness’s performance in the witness box in closing submissions, long after the witness has left court. Basic methods of checking evidence which are likely to take place include: Yüklə 34,77 Kb. Dostları ilə paylaş:
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