Article – witness statements – some tips
Our commercial litigation solicitors have a real depth of experience in advising clients on valuable and high-profile claims in the county courts and particularly at the High Court. Using their knowledge, they provide some useful tips on preparing a witness statement for use at a trial.
Keep a diary of issues
If you need to give a statement in a court dispute, it is likely it will be several months or possibly years after the event. If your whole case rests on words said by someone else several years ago, it might be difficult for people to believe you can recall exactly what was said so long ago. If you have a written account, taken at the time with a brief summary of what was discussed, your case can become much more believable; for finely balanced cases this might be enough to win the case.
Write down key conversations shortly after they occur
Not all commercial deals or negotiations are necessarily written down. Deals can start off as a single contract, but can be changed over time by agreement. Things can often change verbally on short notice and people agree to do things over the phone, at meetings, or in person rather than in writing. If this happens, it is helpful to keep a diary of key events, or send follow up emails after the event setting out what has changed. It takes a bit of extra time and effort but might win you a valuable court case later on.
If you need to rely on another person, make sure they are available and agree
Some cases end up in gridlock because one person says something did happen, and the other person said it didn't. If there are only two people who were there, it becomes a 50/50 chance of who is more believable. If you have a statement from an additional person who witnessed things first hand, the balance can become 2 to 1, and might increase your chances of success.
Many cases fall down because someone who is a key witness has moved on and is no longer contactable or available and cannot give a statement. It is sensible to keep in touch with potential witnesses and check whether they will agree to assist before you litigate. If they refuse or have disappeared, you may need to reassess your approach. Legal advice can guide you.
It is best to be honest
It is not necessarily a weakness to admit you cannot remember something exactly 5 years ago. In fact it can sometimes assist to make your account seem more honest. Many people mistakenly try and put things in statements they cannot quite remember in a way that unjustly supports their position. The danger is, if the matter goes to court, a skilled barrister will pick on a thread of untruth and use it to unpick your position. If there is one false statement is flagged, or if you contradict yourself when questioned, this can undermine the whole statement and potentially lose you the whole case. It is best to be completely transparent. Legal advice can assist.
Painting a picture
Many people who draft their own statements go straight to the dispute, without setting out some background. This might be a costly mistake. For example, some low value disputes might appear unimportant at first, but when the background is widened, it can turn out there might be several hundred other similar potential claims in the background, the total effect of which might ruin a business or individual financially. There is a balance between putting in too much irrelevant information and setting out the bigger issues at stake. Legal advice can assist.
Don't focus on the negatives
Many witness statements go too far focusing on negative points, in the hope they will be seen to be honest. Doing so in some cases can be damaging and you may be giving the other side an unfair advantage. In contrast, other statements miss out all the potential disputed issues and only mention things that support their case. This approach might be equally damaging and make the account less believable, especially if there are genuine issues on both sides.
There are ways of presenting an issue in a constructive way, and that furthers your case. There is no set approach; it requires careful tactical consideration of the facts. Having legal advice can greatly assist.
Formal requirements
There are a number of formal requirements a witness statement must comply with for it to be accepted as evidence by the courts. Some statements are rejected for missing a key part. It is very important in particular to make sure you have not made a mistake about the facts or beliefs as you need to sign confirming that the statement is true. If you purposefully mislead the court, this might amount to a serious criminal offence. If you mislead the court carelessly, you may be criticised and the case might be found against you as a result. When a statement is several pages long, it can be difficult to keep track of all the points. Legal advice can assist greatly.
Contact Saunders Law - Expert Commercial Litigation Solicitors London
At Saunders Law, we're dedicated litigators with vast experience assisting clients to resolve their commercial disputes. We're well-known for our high-profile work and excellent client satisfaction. Operating from offices facing the High Court in central London, we're also ideally located to handle commercial litigation. For a free, no-obligation, initial discussion of how we may be able to help, please fill out our online enquiry form.
If you have a commercial dispute worth more than lb10,000 or and need assistance on strengthening your case or help drawing up witness statements, contact our lawyers on 02076324300.