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.