Within Boundaries

Counsel magazine

Law in practice - Witness Familiarisation

Paul Epstein QC and Ed Williams explain witness familiarisation – the training, judicial attitudes, and how to stay within professional boundaries

In the recent High Court battle of the oligarchs between the late Boris Berezovsky and Roman Abramovich the case turned on conversations several decades earlier. What the two men said and how they said it was central to Mrs Justice Gloster's eventual judgment dismissing Mr Berezovsky's £5bn claim.

Mr Berezovsky was found to be "an unimpressive, and inherently unreliable, witness, who regarded truth as a transitory, flexible concept, which could be moulded to suit his current purposes sometimes he was clearly making his evidence up as he went along in response to the perceived difficulty in answering the questions in a manner consistent with his case ... He embroidered and supplemented statements in his witness statements, or directly contradicted them. He departed from his own previous oral evidence, sometimes within minutes of having given it." Mr Abramovich however was found to have given "careful and thoughtful answers, which were focused on the specific issues about which he was being questioned. At all times, he was concerned to ensure that he understood the precise question, and the precise premise underlying the question which he was being asked. He was meticulous in making sure that, despite the difficulties of the translation process, he understood the sense of the questions which were being put to him ... He was not afraid to give answers which a less scrupulous witness would have considered unhelpful to his case..."

Mr Abramovich had received witness familiarisation training. Between his first and second appearances before the Commons Select Committee on media and cultural a airs it is understood that Mr James Murdoch underwent communications training in how to give his evidence in the best possible light. The perception, certainly amongst media reports, was of a much improved performance second time around from Mr James Murdoch.

As these examples show, witnesses who are about to face difficult and challenging questions at a court, tribunal, select committee or public enquiry may benefit from witness familiarisation training. Such training does not only explain what will happen to them whilst giving evidence; they can also practise being cross-examined, albeit not on the facts of their case.

Some practitioners and judges would view such training as anathema to the principle that the witness must give unrehearsed and unvarnished evidence. It is though increasingly a feature of the services that solicitors look to be able to offer their clients as a way of minimising litigation risk. Some members of the judiciary have even commented on the benefits of some kind of witness training. In R v. Salisbury (unreported 19 May 2004; affirmed [2005] EWCA Crim 3107) Pitchford J. said:

"What [the witnesses] would have received was knowledge of the process involved. It was lack of knowledge and understanding which created demand for support in the first place. Acquisition of knowledge and understanding has probably prepared them better for the experience of giving evidence. They will be better able to give a sequential and coherent account."

The BSB 'Guidance on Witness Preparation' states that "witness familiarisation arrangements are not only permissible; they are to be welcomed."

Unlike in the US, where whole mock courtrooms are erected with witnesses being cross-examined on the very evidence they are going to give at trial, such coaching is impermissible this side of the Atlantic. Paragraph 705(a) of the BSB Code of Conduct expressly states that a barrister must not "rehearse, practice or coach a witness in relation to his/her evidence." The Code goes on to state that "the line between (a) the legitimate preparation of a witness and his/her evidence for a current or forthcoming trial or hearing and (b) impermissible rehearsing or coaching of a witness, may not always be understood."

The leading case on witness training is the decision of the Court of Appeal in R v. Momodou [2005] 2 All ER 571, CA, which has been referred to without disapproval in a civil case, Ultraframe v Fielding EWHC 1638 (Ch).

In Momodou, one training provider had created practice case studies for the witnesses to be cross-examined on that, although hypothetical, had similarities with the facts of the actual case. The witnesses were also trained together and not separately. The Court of Appeal held that this type of training had crossed the boundary from mere familiarisation into coaching:

"The witness should give his or her own evidence, so far as practicable uninfl uenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids, any possibility that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training."

Training that involved "discussion about proposed or intended evidence" is to be prohibited. However:

"This principle does not preclude pre-trial arrangements to familiarise the witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works... Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness's own
uncontaminated evidence."

The question then is what amounts to sensible preparation so that witnesses can experience the giving of evidence, but without the lawyers crossing professional boundaries.

One of the most common forms of preparing a witness is the steps taken by the lawyers instructed in the litigation. Many solicitors offer this service to their clients. Alternatively counsel is invited to provide some guidance on court procedure when advising in conference, often towards the end. Frequently it is dealt with on the first morning of the hearing.

For those looking for experiential familiarisation training, one increasingly popular form of training is participation in a mock hearing - growing in popularity perhaps because it can be fun and can also be used as a way of cementing a relationship with an important client. Typically it is used to train a group of people. Some may be witnesses in a forthcoming hearing but that is not a prerequisite to participation. Usually some or all of the participants are given a scenario some time in advance of the mock hearing. Barristers are sometimes brought in as cross-examiners for part of the day or to play the part of the judge.

A third type involves a familiarisation of the court process, followed by a cross examination on a role-play. Here, the participant is given documents and a role or script in advance of the session. The participant is then cross-examined on that scenario, albeit that they do not have the same emotional investment as they would in the case.

A fourth type of training is where the participant is trained by two people, a specialist communications trainer and a barrister. There is detailed familiarisation with the court process, followed by cross-examination on topics that the participant has selected in advance, and which are personal to them.

The barrister ensures the witness experiences what it is like to be expertly cross-examined on subjects that are both important and personal to them, which creates in them as emotional engagement that is lacking in cross-examination on a part learned for a role-play. The communications expert helps control and direct the witness's emotions, their anxiety and their stress and helps them present themselves in a way so as to help familiar incongruent non-verbal communication and tone. Because of the personal nature of the topics both trainers will have a better idea of how that participant will react when giving their evidence and therefore offer tailored guidance to them.

It may well have been the case that Mr Abramovich would have given evidence in the same calm and collected manner without any familiarisation training, or that Mr James Murdoch was always going to give an improved performance to the Select Committee after his first performance. One will never truly know. The fact is that legally permissible traning is increasingly a feature in cases where clients have so much invested in a successful outcome.

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Witness training - Time well spent

PLC Magazine

In a recent High Court battle between two Russian oligarchs, the result turned on conversations which had taken place in deepest Siberia decades previously (Berezovsky v Abramovich [2012] EWHC 2463 (Comm)). The claimant fared badly on the witness stand. The trial judge found him to be "an unimpressive and inherently unreliable witness, who regarded truth as a transitory, flexible concept ... sometimes he was clearly making his evidence up as he went along ... on occasions he tried to avoid answering questions in a manner consistent with his case ... he departed from his previous oral evidence sometimes within minutes of having given it."

Difficulties with witnesses Litigators have seen these traits before, and others that are just as damaging to the merits of a case: for example, a key witness who becomes argumentative, comes across as over-confident and arrogant, is unable to answer simple and direct questions, or gives answers with overly defensive body language. At the other end of the spectrum are those witnesses who are too timid and nervous, prone to agreeing with every point put to them in an apparent attempt to shorten the pain of cross-examination.

Preparation

Risk is inherent in litigation and a crucial part of the lawyer's job is properly to quantify and, to the extent possible, manage that risk. Witness evidence involves risk: how will a witness perform when giving evidence and under cross-examination? This is often perceived as an element of risk that the legal team can do little or nothing to control. Witnesses, even key witnesses, are often sent in to give their evidence with scant attempt to prepare them for the real experience of giving evidence. They may have had a discussion with their solicitor, or perhaps even a conference with counsel, explaining the importance of listening carefully to and answering the question, but they have not truly experienced what it feels like to be on the witness stand and to be subjected to cross-examination.

However, astute litigators have come to realise that witness performance is something over which they do have some control. They understand the value of properly preparing witnesses for the experience of giving evidence. In almost every endeavour, performance is improved by familiarity and practice. Giving evidence is no different.

Effective techniques

Lawyers need to give witnesses the experience of giving evidence, but without crossing their professional boundaries (see below "The permissible limits").

Common familiarisation training focuses on the logistics of giving evidence: for example, what the witness should expect when he walks into a court or tribunal for the first time, where to sit or stand, and what to call the judge. That is, of course, a basic but essential part of helping a witness to prepare. However, there is no substitute for actually experiencing what it feels like to be cross-examined. Few people learn to ride a bicycle or play a musical instrument by watching others. It is a self-evident truth that we learn better and faster by doing things ourselves.

Traditional mock cross-examination training requires the witness to digest a pre-prepared case study. But the witness has no real investment in the case study and so it cannot engender the sort of emotions that the real thing so often does. As one witness memorably commented, such training is about as effective as a chocolate fireguard.

Furthermore, in our experience, a lawyer is not in the best position to assist with the non-verbal skills that can be key to delivering evidence effectively. Now, a new form of witness training provides not only cross-examination by a skilled practitioner on a subject that engages emotions, while keeping clear of the subject matter in dispute, but also uses an expert personal communications trainer to teach the witness techniques to help them relax and focus their evidence appropriately.

The trust equation

In 2000, Harvard professors David H. Maister, Charles H. Green, and Robert M. Galford published a book called "The Trusted Advisor". In it, they detail research that they had conducted, which looked at how businesses go about choosing their legal service providers. It transpired that it was possible to create a mathematical equation which could accurately represent the factors involved in this decision-making process: credibility + reliability + intimacy, divided by self-interest. They called this "the trust equation" and it rapidly became an influential model used within business development training.

The theory is that businesses rate potential lawyers with a metaphorical "score" based on whether: they appear to know what they are talking about (credibility); they do what they say they will (reliability); and they understand the needs and interests of the business (intimacy). Once added together, this score is then divided by a number representing the extent to which the lawyers were perceived to be acting in their own interest. Dividing the first figure by the second indicates how much the business is willing to trust the lawyers as advisers and hence who they will engage.

When the trust equation is applied to personal communications and the courtroom environment, it is easier to understand how a witness must communicate to gain the trust of a judge (or jury). It is likely (and indeed desirable), that the witness is going to score low in terms of how well they know the judge and his needs. It is also inevitable that they are going to be awarded a high score by the judge when deciding how much self-interest the witness may have. This means that the only scores the witness can consciously control revolve around credibility and reliability, and it is no coincidence that we hear these terms used so frequently when describing witness evidence.

This is why Assurety believes that it is crucial to focus on how a witness is communicating, rather than just what they are communicating. We build on traditional methods by using advanced communications theory and experiential training methods to produce the most effective witness preparation possible.

Limiting risk

Witness training cannot guarantee a successful outcome but it can significantly improve performance and therefore reduce an element of litigation risk. It enables a witness to give evidence in a more relaxed, comfortable and effective way. No self-respecting lawyer goes into a case without being completely prepared. Why should witnesses be in any worse position?

The permissible limits

In the UK, it is not permissible to rehearse a witness's evidence or to coach a witness in their evidence. The Bar Code of Conduct provides that a barrister cannot rehearse, practice or coach a witness in relation to his evidence. Although the Solicitors Regulation Authority Handbook does not contain any express prohibition, it is implicit in the Principles; for example, solicitors must act with integrity and uphold the rule of law.

The leading case on what constitutes permissible witness training is R v Momodou, in which the judge commented that the witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations ([2005] EWCA Crim 177). Although it is a criminal case, the principles set out in it have been referred to without disapproval in a civil case (Ultraframe v Fielding [2005] EWHC 1638 (Ch)). The Bar Standards Board, the regulatory body for barristers, has advised that, until there is an authority on these matters in relation to civil proceedings, it would be prudent to proceed on the basis that the general principles set out in Momodou also apply to civil proceedings.

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Preparing To Give Evidence – An Essential Part of Any Litigation Strategy

Corporate LiveWire

‘Before anything else, preparation is the key to success.’
Alexander Graham Bell

The number of recent cases in the UK in which judges have commented adversely on witness performance is remarkable. For example in Rawsthorne v Easybus Ltd case number 3302770/2013, Employment Judge Bloch QC commented that Sir Stelios Haji-loannou “repeatedly evaded answering questions put to him in cross­ examination. I had to intervene on a number of occasions to remind him that he should not be arguing with Counsel or seeking to ‘second guess’ future questions - but that his obligation was to pay attention to the questions and seek to answer them.” In Grizzly Business Ltd v Stena Drilling Ltd [2014] EWHC 1920 (Comm) Mr. Justice Teare found a witness unimpressive because he “had a tendency to give long and confusing answers rather than a simple answer to the question asked. He gave the impression, by setting out the context in which matters arose, that he was seeking to argue the case rather than answer the question asked.” In Stein v Chodiev [2014] EWHC 1201 (Comm) Mr. Justice Burton said “I found Mr. Olim Chodiev an unpersuasive witness …”

Why do people, even very senior people, perform so badly when called upon to give evidence in a court or tribunal or before an arbitral panel? The answer may well be a lack of proper preparation. Simple things – such as not understanding that the role of a witness, no matter how senior, is to answer questions and not argue the case – are often the reason why judges are distrustful of what the witness is saying to them. So why is so little time and attention paid to the proper preparation of witnesses for the experience of giving evidence and being cross-examined, so that they understand this? In the UK lawyers are often cautious about the use of witness familiarisation training in light of the well-known prohibition on coaching and rehearsal. This fundamental principle is set out in rule C9.4 of the Code of Conduct applicable to barristers. But judges in the UK have repeatedly made it clear that witness familiarisation training is not only permitted but welcomed. In the leading case of R v Momodou [2005] 1 WLR 3442 the former Lord Chief Justice, Lord Justice Judge, said:

‘Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works … Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible … The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process.’

A witness once famously commented that when done badly witness training is “about as much use as a chocolate fireguard.” But done well its benefits are immeasurable. Witnesses are better informed about exactly what is going to happen at trial and they therefore feel much more relaxed and confident about the prospect of giving evidence. As a result they are more likely to perform to the best of their ability, effectively communicating what it is they have to say and improving their chance of success as a result.

However, as guidance prepared by the Professional Standards Committee of the Bar Council explains, the line between (a) the legitimate preparation of a witness and his/her evidence for a current or forthcoming trial or hearing and (b) impermissible rehearsing or coaching of a witness, may not always be understood. Therefore in the UK all witness familiarisation training must be carried out in accordance with strict rules to ensure that it does not cross the line into impermissible coaching. Lord Justice Judge stated that proper records should be maintained of all those present and the identity of those responsible for the familiarisation process; the programme should be retained, together with all the written material used during the familiarisation sessions; and of course none of the material used should bear any similarity whatsoever to the issues in the proceedings to be attended by the witnesses and nothing in it should play on or trigger the witness's recollection of events.

Crucially, none of those involved in the witness training should have any personal knowledge of the matters in issue and that will obviously include the solicitors with conduct of the litigation and the trial advocate, which is why it is preferable to use a specialist witness training provider. Lord Justice Judge observed that it is a matter of professional obligation for any lawyers involved in the familiarisation process and the trial itself to see that these rules are followed.

At Assurety we train witnesses using experienced, practising advocates who are recognised as leaders in their field. We also use an expert communications trainer in every session, since it is impossible for the lawyer to conduct a cross-examination and also to be fully aware of how the witness is coming across, for example in terms of body language and other forms of non-verbal communication. That trainer will have years of giving expert communications help using professional techniques. Every single one of the witnesses we have helped as part of their trial preparation has observed that the training is excellent.

Jason Galbraith-Marten QC is a barrister / trial attorney with over 20 years’ experience running the most complex labour / employment and equality cases. He has been described in the leading UK legal directories as an "outstanding advocate" who “changes tribunals’ minds like no other." "Ferociously bright, he is always prepared and wins cases with his imaginative arguments.” Recently appointed one of her Majesty’s Counsel, he is determined to play a role in the development of employment law both in the UK and internationally. Jason set up Assurety with two other leading UK barristers, Paul Epstein QC and Edmund Williams.

 

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Witness Training

Lawyer Monthly

This month Lawyer Monthly take a look at Witness Training, by speaking to Jason Galbraith- Marten, a Director of Assurety Limited and a barrister at Cloisters. He is also one of Assurety’s Principal Trainers, making him well placed to comment.

Tell me a little about the concept of Assurety.

Assurety is a specialist training company. It combines the expertise and experience of leading barristers (I am star-ranked in Chambers & Partners and top-ranked in the Legal 500; we also have a number of QCs on our roster of trainers) with innovative communications theory and techniques delivered by a team of communications experts. We aim to provide our clients with the very best witness familiarisation training.

What was the catalyst for setting up such a venture?

Assurety was set up in 2010 and is run by three practising barristers. Between us we have over 50 years experience examining and cross- examining witnesses. In nearly every case we do we are asked to spend a few minutes preparing witnesses for trial, telling them what to expect, what to call the judge etc. We realised that so much more could – and should - be done to properly prepare witnesses for the experience of giving evidence in a court or tribunal. As with so many things in life, the key to effective performance is proper preparation.

What are the benefits of witness training and the effects of not being trained?

A witness once famously commented that when done badly witness training is “about as much use as a chocolate fireguard.” But done well its benefits are immeasurable. Witnesses are better informed about what is going to happen at trial and they therefore feel much more relaxed and confident about the prospect of giving evidence. As a result they are more likely to perform to the best of their ability, effectively communicating what it is they have to say and improving prospects of success as a result.

Witnesses who are not properly prepared for the experience of giving evidence can suffer from all sorts of problems, from debilitating nervousness at one end of the scale to over confidence bordering on arrogance at the other. Both are unhelpful characteristics in a witness. Yet the outcome of even the biggest commercial cases can turn on witness evidence. The case of Berezovsky v Abramovich – in which the late Boris Berezovsky sued Roman Abramovich for in excess of US$5.6bn – was largely determined by the judge’s assessment of how the two parties had performed when giving evidence at trial.

What are the main challenges you face?

In the UK we are not permitted to coach witnesses on the actual evidence they are due to give at trial. The rules which define and regulate a barrister’s functions in relation to the preparation of evidence and contact with witnesses are set out in paragraphs 704-708 of the BSB’s Code of Conduct.

The fundamental prohibition regarding the preparation of witness evidence is expressed in rule C9 the Code: a barrister must not rehearse, practise or coach a witness in relation to his/ her evidence. However, as Guidance prepared by the Professional Standards Committee of the Bar Council points out, ‘the line between
(a) the legitimate preparation of a witness and his/her evidence for a current or forthcoming trial or hearing and (b) impermissible rehearsing or coaching of a witness, may not always be understood.’

Perhaps for this reason, in the past providers have been unwilling to explore the boundaries of what can be done to properly prepare witnesses for the experience of giving evidence and lawyers have lacked confidence in the effectiveness of witness familiarisation training. There is also a lack of awareness amongst many solicitors and clients about the existence of this training.

How is your training different from that offered by other providers?

It is very different, and that is why our clients, many of whom have tried other providers, love it. In each training session we aim to use a practising barrister who is recognised as a leader in the area of law with which the case is concerned, where other providers may use barristers who are not leaders in the field or do not even practise in the area of law concerned.

We also use an expert communications trainer in each training session, since it is impossible for a barrister to both conduct cross-examination and be fully aware of how the witness is coming across, for example in terms of body language and other forms of non-verbal communication. The communications trainer has had years of giving expert communications help using professional techniques.

Unlike other providers, we never ask witnesses to spend time learning a role-play or cross- examine them on a role-play. We cross-examine witnesses on topics that are very personal to them (although unrelated to the case) to better replicate the stress of giving evidence for real.

Is there anything else you would like to add?

For those that haven’t used us before we would welcome the opportunity to deliver a short presentation outlining the benefits of effective witness familiarisation training and we are so confident about our product that we offer to provide a first course for free. Try it. It really works.

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Witness training - Time well spent

Update - The newsletter of the City HR Association

In a recent High Court battle between two Russian oligarchs, the result turned on conversations which had taken place in deepest Siberia decades previously.

The claimant fared badly on the witness stand. In the transcript from the trial the judge found him to be “an unimpressive and inherently unreliable witness, who regarded truth as a transitory, flexible concept ... sometimes he was clearly making his evidence up as he went along ... on occasions he tried to avoid answering questions in a manner consistent with his case ... he departed from his previous oral evidence sometimes within minutes of having given it.”

Preparation

HR professionals and litigators have seen these traits before, and others that are just as damaging to the case.

Nevertheless, witness performance is often perceived as an element of risk that it is not possible to manage. It means that there may have been scant attempt to prepare the witnesses for the real experience of giving evidence. They may simply have had a discussion with their solicitor, or perhaps even a conference with counsel, explaining the importance of listening carefully to and answering the question, but little else.

However, what witnesses need is to understand and feel as fully as possible what it is like to give evidence.

Effective preparation

In the UK it is impermissible to rehearse, practise or coach a witness in their evidence. Those who are familiar with the issues in the case are forbidden to train the witnesses.

But there are ways in which witnesses can quite legitimately be prepared so as to enable them to communicate their evidence as fully and persuasively as possible.

Assurety Ltd is a new and innovative witness training company founded by two practising QCs and a senior barrister. It offers thorough training for witnesses. A barrister/QC and a communications expert deliver each course. A former High Court/Court of Appeal Judge can be added as a third trainer. Many of their barrister trainers are also part-time judges.

The training is tailored to each witness. The witnesses are familiarised with the process for the hearing; they understand how decision-makers make their decisions; they watch videos of witnesses giving evidence; they learn what they should and should not do as witnesses; the communications expert gives them a grounding in communications.

Finally, and importantly, the barrister subjects the witnesses to a searching cross-examination. They do not use role-plays or case studies. These take time to learn, and a mock cross-examination on a part that a witness has learned is sterile and artificial.

Already used by many City financial institutions, this training would benefit employees who are going to give evidence or answer questions, to a court, tribunal, inquiry, regulatory hearing or otherwise. City law firm, Osborne Clarke, hosted a taster session for City HR members. The Association’s volunteer witness at the session, Candace Relf, Head of HR at Danske Bank, said: “It was nerve-wracking to be cross-examined after studious preparation at the Member Forum in front of my peers.  What would the real situation be like?”

David Cubitt, Employment Partner at Osborne Clarke concluded: "The demeanour of a witness when giving evidence is important to their credibility and can effect the outcome of the case. Witness training will increasingly be seen, not just to be time well spent, but essential to effective trial preparation.”

 

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