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.

pdfDownload this article in PDF format