Anyone Can Be a Good Witness

What makes a good witness, and why can even highly experienced and capable people struggle when their evidence is tested?

Jason Bartfeld KC is an experienced advocate, cross-examiner and Assurety trainer. Deputy Head of 187 Chambers, he was called to the Bar in 1995 and appointed King’s Counsel in 2015. His practice spans serious crime, fraud and financial crime, regulatory and commercial matters, and he is recognised as a leading KC by Chambers & Partners and The Legal 500.

Having spent many years both cross-examining witnesses and preparing individuals for the experience of giving evidence, Jason has seen first-hand the behaviours that can help — or hinder — a witness under pressure. Here, he explores some of the most common pitfalls, what makes an effective witness and why he believes anyone can improve with the right preparation.

In your experience, what are the common pitfalls or traps that you see witnesses fall into? Where do they make mistakes?

Most witnesses are so personally and/or emotionally invested in the case that they struggle to give simple, direct and straightforward answers to questions. Instead, they often find themselves trying to make an argument rather than simply answering the question they have been asked.

How does this impact the case they are involved in?

A witness who is argumentative will inevitably be seen by the judge as unhelpful, even if that is not their intention. The same applies to a witness who fails to answer the question asked in a direct and straightforward way.

Answers which are overly long, rushed or not properly directed to the tribunal will have less impact. They may also leave the witness vulnerable in cross-examination by volunteering unnecessary information which can then be used to undermine their evidence.

Are there any particular areas you see witnesses generally do well?

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 something for any witness to learn.

One area whose importance witnesses frequently underestimate, without guidance, is personal presentation. First appearances matter. We all make assumptions based upon them, consciously or otherwise, and judges are no exception.

Do you see any pattern in the kind of people who commonly make good or bad witnesses?

I have no doubt that anyone, with a little guidance, can become a good witness. I am equally confident that, without assistance, most people are naturally poor witnesses.

In my experience, there are two polar ends of the spectrum: those who come across as arrogant or entitled, and those who are so timid or shy that they can barely get a word out. Either extreme — and anything in between — can be managed and improved with training.

There is, however, one category of people who are naturally amongst the worst witnesses and often require extensive retraining: lawyers!

How does Assurety training help prepare witnesses when you can’t talk about the case?

Taking the pressure off. By familiarising participants with court procedure and practice, as well as giving them guidance on physical and mental preparation, much of the element of surprise is removed. That, in turn, reduces stress and allows the witness to concentrate on giving their evidence effectively.

Understanding the theory of courtroom communication. Very few of us truly understand all the elements of successful communication. Even fewer appreciate the particular and sometimes peculiar adaptations required to communicate effectively in a courtroom.

Putting the theory into practice. Dress rehearsals of evidence are unlawful, but we believe they could also prove counterproductive in any event. No one can accurately predict the precise questions that will be asked, or the style in which they will be put.

A witness is far better equipped by learning how to answer questions effectively, whatever the subject matter and whatever the barrister’s approach. We achieve this through practice cross-examination based upon personal material supplied in advance of the session. Because the participant already knows the answers, the exercise allows the training to focus not on what they say, but on how they say it.

Describe some of the changes you have seen in witnesses during training. What do you enjoy about delivering Assurety training?

Whatever the quality of the witness at the beginning of their training, there is invariably a visible improvement in the quality of their delivery by the end. Sometimes the transformation is dramatic.

I still recall my very first session, eight years ago. The participant was initially so nervous that they could barely get an answer out. By the end of four hours of training, they were clear, confident and persuasive.

These are life skills whose value extends far beyond the particular case in which the participant is giving evidence. For me, there is an immense sense of reward in equipping someone with the skills to overcome deep-seated insecurities. Even with witnesses who face fewer challenges, there is considerable satisfaction in knowing that every participant leaves better equipped to give their best evidence.

Do you learn anything from delivering witness training?

I have met and trained an extraordinarily diverse and fascinating range of people, both in the UK and around the world, during my time working with Assurety, and each has left a positive mark.

More broadly, witness training has given me a valuable insight into the mindset of a witness. As an advocate, that is something I have found enormously useful.

Do you think attitudes to witness training are changing?

When I started training for Assurety, witness training was sometimes perceived as both foreign and dangerous. Over the years, I have seen the pendulum swing considerably.

Training is now commonly used in serious disputes, and its value is increasingly understood and appreciated throughout the legal system, including by judges. It has moved from something regarded with suspicion to an accepted and valuable part of preparing a witness for the unfamiliar experience of giving evidence.

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