How to give evidence in the High Court – Practical Tips

Giving evidence is a serious business and the foundations for so doing should be laid well before the trial itself. Here are some tips:

• Be aware that the witness box is a lonely place and whilst you are giving your evidence you will in real terms be incommunicado even when the Court adjourns over lunch or overnight
• Understand the importance of the contents of your Witness Statement which will have been prepared some time before. This is deemed to be your main evidence and therefore it is critical for it to be accurate and reflect what you believe to be the truth. It should also be in your own words.  Witnesses frequently overlook the significance of this.  Always treat the making and signing of any Witness with its Statement of Truth as a grave step and one which will come back to haunt you if you don’t give it proper attention at the time.
• Make sure you have read your Witness Statement before you going into the Witness box. If you have time read everyone else’s evidence and ask to see the core/critical documents. If you have said anything which is contradicted by the contemporaneous documents, be ready to explain why. Do not take this advice lightly.
• The start of your evidence: for many years now you will begin giving your evidence (after taking an oath) by being giving your name and address. Then you will be shown the witness statement you have signed and asked to confirm your signature and the truth of your statement.  This is the time to tell the Court of any revisions you wish to make.
• Cross examination: you will then be subjected to cross examination by the other party’s advocate. Don’t forget; the barrister who is cross examining you is trying to show the Judge that your evidence is wrong or unbelievable. He is being paid to discredit you..
• Address the Judge: whilst it is the barrister who ask the questions, your answers should be addressed to the Judge; it is after all in nearly every case the Judge who is evaluating you as a witness.  Usually the Judge will be sitting in an elevated position with the barrister in front of him and you in the witness box to one side.
• Listen carefully to the question: if you are asked to comment on a document ask to see it and read it carefully. If you don’t understand the question, seek clarification but do this too often and the Judge may think you are simply avoiding questions and being evasive or disruptive.
• Always try to answer the question to the best of your ability. Keep your answers concise but don’t be monosyllabic. Too many “yes” or “no” responses may be judge unhelpful.
• Try to give evidence in a straightforward manner: if you can’t recall something or simply don’t know the answer to a question, say so. If on reflection you think you may have got something wrong, then acknowledge it.  There is nothing worse than a witness saying something simply because he thinks it is advancing the case he is supporting.
• Never be aggressive or rude; always be polite. If you think the barrister is being rude, leave it to the barrister who called you to give the evidence or to the Judge to intervene.  At the end of the day it is the Judge who controls the procedure in Court.
• For an independent witness: if you are not a party to the action but are an independent witness, remember that and keep your independence.
• Always remember you are a witness of fact: you are there to tell the Judge facts within your direct knowledge. You are not there to advance the legal argument; that is the role of the barrister who has asked you to give evidence.  Nor are you there to express an opinion.
• Help the Judge understand: remember you may have lived with the case for many months and even years but normally the Judge has not. More likely the Judge will only have been passed a huge bundle of files a day or so before the trial. He therefore wants help to understand what went on. He does not know you but has to decide if you are being truthful, straightforward and trying to help him. He has to make a value judgment. If he feel you will say anything to further the case irrespective of the truth, he is likely to reject your evidence.
• Explain your case in the best possible way: after the cross examination has ended, the barrister who called the witness to give evidence can re-examine. However, re-examination is very limited indeed. Don’t make the mistake of not explaining your case in cross examination in the hope you can put a fuller case in re-examination. It ain’t going to happen!
• Be prepared for more questions: after cross examination and re-examination, do not relax too much; the Judge can also ask questions and often only does this after completion of the re-examination. However, the Judge can always ask questions of you at any stage of you giving questions.
• Never forget that the Judge knows that human memories are frail and with the passage of time a witness often does not have an exact recall of what was said at a meeting or on the phone. The Judge will also look at the contemporaneous documents to see what was happening at the time of the events on which you are giving evidence.
• Judge’s finding: in most Judgments these days the Judge will give his evaluation of each witnesses. He will say whether the witness was helpful and frank and seemed to be trying to help the Court. That is why if your recollection is mistaken, you should acknowledge this. In contrast, if the Judge considers the witness is saying anything to help the case irrespective of the truth or changing evidence simply to suit the case, the Judge is more likely to discount that evidence as unreliable. Never give evidence simply because you think it justifies your commercial interests. That is a complete “no-no”.
• There are professional outfits that can “train” you on how to give evidence but they cannot use the facts of the actual case for training purposes. Therefore they will give you some hypothetical facts. Whether that will assist you prepare is questionable.

If you have found yourself in the situation where you have been asked to be a witness, or if you have been threatened with a court action, as well as for any litigation-related matters, please contact Barry Samuels on: [email protected] or 0207 822 2222