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.”
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.
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.”