Jason Bartfeld KC, one of Assurety’s trainers, is an experienced barrister specialising in Criminal Law, Sports Law, Disciplinary Proceedings and Regulatory Law. We asked him about his work with witnesses.
Most witnesses are so personally and/or emotionally invested in the case that they fail to give simple, direct and straightforward answers to questions. Instead they often seek to make an argument
A witness who is argumentative will inevitably been seen as unhelpful by the Judge, even if they do not intend to be. The same applies to a witness who fails to answer the question asked in a direct and straightforward way.
Responses which are over long, rushed and/or not directed to the tribunal will have limited impact and may expose the witness to being undermined in cross-examination though unnecessary volunteering of information.
I have yet to meet a naturally perfect witness. Having trained expert witnesses who have given evidence in dozens of cases, I can say with confidence that there is always much to learn for any witness. However, the one area that witnesses tend to misunderstand the importance of without advice is the importance of proper personal presentation and the power of the assumptions that all people, including judges, make based on first appearances.
I have no doubt that anyone, with a little guidance, can make a good witness. I am equally confident that most people without assistance are naturally poor witnesses. In my experience there are two polar ends of the spectrum – those who come across as arrogant and/or entitled and those who are so timid and/or shy that they can barely get a word out. Either of these (and anything in between) can be managed and improved with training.
One category of persons which are naturally the worst witnesses and need extensive re-training - lawyers!
Taking the pressure off. By familiarising the participant with court procedure and practice as well as giving them guidance of physical and mental preparation the element of surprise is eliminated, reducing the stress levels.
Understanding the theory of court communication. Very few of us really understand the elements of successful communication. Even fewer understand the particular and peculiar adaptations that a necessary to communicate in a courtroom setting.
Putting the theory learning to the test. Dress rehearsals of evidence are unlawful, but we believe also could prove counter-productive in any event. No one can accurately predict the precise questions, or style of questioning, in advance. A witness is far better armed by learning to answer questions, whatever the topic and whatever the barrister’s approach. This is achieved by practice cross examination based on personal material supplied in advance of the session. Using this material ensures that the participant already knows the answer, and allows the training to focus on how that response in delivered.
Whatever the quality of the witness at the start of their training, there is always a visible change in the quality of their delivery by the end. This can often be dramatic. I recall my very first session 8 years ago where the participant was so nervous initially that they were barely able to get an answer out at all, but by the end of 4 hours of training were clear, confident and persuasive. These are life skills that impact beyond just the case that the participant is a witness in. The rewards for me of arming someone with the skills to overcome deep seated insecurities are immense. Even for witnesses who are less challenged, the knowledge that every participant leaves better armed to provide their best evidence is a personal reward.
I have met and trained such a diverse and fascinating selection of people both in the UK and around the World whilst working for Assurety, and each one leave a positive mark. Beyond that, witness training has given me an insight into the mindset of the witness.
When I started training for Assurety, witness training was perceived as both foreign and dangerous. Over the years I have seen the pendulum swing to the extent that training is now commonly used, and its value appreciated by all in the legal system, including judges, in serious disputes.
