Obtaining Proofs of Evidence from Witnesses

A witness’s Proof of Evidence is simply everything relevant to the issues in the case which the witness can remember and write down, but the witness should write down everything they think might be relevant. It does not matter if (within reason) they include things which turn out not to be relevant, because once you have a Proof of Evidence for a witness, you will want to ask a barrister to draft a Witness Statement from it, and at that stage the barrister can leave out any material which is not relevant to the issues which, by that time, still remain in dispute between the parties (generally witness statements used in court/tribunal are expected to only contain relevant material because too much irrelevant material wastes court/tribunal time).

Some guidance on how to write a Proof of Evidence – which you should give to your potential witnesses - and also read yourself when writing your own Proof of Evidence - can be found at www.johnantell.co.uk/writing-a-proof-of-evidence

Why you should ask the witness to write what they remember in their own words

It is important to simply ask the witness to type in, for themselves, what they remember rather than having a question and answer session. To explain why this is, first of all I need to give some background about the legal process and how witnesses are questioned at trial. Each party decides which witnesses they are going to call to give evidence. Every witness will be “called” by one party or the other (the court/tribunal itself does not decide to call witnesses of its own initiative). When a witness gives evidence, the first thing they are asked after taking the oath, by the barrister representing the party calling them, is to confirm that their witness statement is correct. After that the barrister representing the other side will ask questions in what is known as cross-examination. The barrister representing the other side can ask the witness virtually any relevant question and is allowed to ask “leading questions”. A “leading question” is a question which is worded in such a way as to suggest the answer expected such as “The car was blue, wasn’t it?” (rather than "what colour was the car"). When the barrister representing the other side has finished asking questions in cross-examination, the barrister for the party calling the witness can ask questions in what is known as re-examination, but the questions which that barrister is allowed to ask in re-examination are limited in two ways: the barrister can only ask questions in clarification of issues which have been raised in cross-examination and leading questions are not allowed. So if the witness had previously agreed, in cross-examination, that the car was blue, for example, the barrister asking questions in re-examination cannot ask “the car was black, wasn’t it?”  

You can see from this that the legal process is designed to test the evidence of witnesses: the barrister for the party calling a witness is limited in the questions they can ask, whereas the barrister for the other party has a free hand to put to the witness what they have been told by their client and to suggest to the witness that where the witness disagrees, the witness is mistaken.

Particularly because of this, the decision by a party whether or not to call a particular witness at trial is an important one. The court/tribunal will set a deadline some weeks before the trial, by which time the parties must exchange witness statements and it is at this stage that a final decision has to be made by a party whether or not it will call a particular potential witness at trial, because a witness statement for each witness which a party will call has to be exchanged at this point.

In order to decide whether to call a particular person as a witness, a party, obviously, first needs to find out what the potential witness’s recollections are and this is the purpose of asking the potential witness, at an early stage, to write a Proof of Evidence. If the Proof of Evidence indicates that the witness’s recollection is helpful to the party’s case (i.e. the witness’s recollection tends to support the party’s contentions on matters which are disputed between the parties) and the witness seems to be fairly sure about their memory, then, ordinarily the party would choose to call that witness.

If the Proof of Evidence indicates that the witness’s recollection tends generally to support the party’s case on matters which are disputed between the parties, but the witness is less than certain about their memory, then the decision whether to call that witness is a more difficult decision to make because the freedom of the opposing barrister to ask leading questions in cross-examination may mean that the witness, if called, ends up agreeing, at least in part, with what the other barrister is putting to them, and that may be worse for the witness-calling party’s case than if they had chosen not to call the witness at all.

Sometimes the Proof of Evidence indicates that the witness’s recollection tends to support the party on some disputed issues but tends to support the other party on some other disputed issues. In this case probably each party would prefer that the other party called the witness (in order to get the advantages of being the cross-examining party) but may not wish to risk calling the witness themselves. Sometimes this means that a potential witness is not called by either party.

Now the reason why it is important to just ask the witness to type a Proof of Evidence for themselves, rather than having a question and answer session, is that if you have a question and answer session, you may well get a skewed impression of what the witness's recollections actually are. For example if you describe an event which both you and the witness were present at, and ask if the witness can confirm that your recollection is the same as theirs, if the witness’s recollection is broadly along the same lines as yours, they may well be inclined simply to say they agree with your recollection rather than quibble about some aspect of your account. Even if you do your best to ask non-leading questions the fact that it is you asking the questions face to face may influence the witness subconsciously so that their account is spun in a way which makes them seem more certain of their recollection than they actually are. Investigators are trained to interview witnesses and obtain their recollections without asking leading questions and, of course, an investigator will have no personal knowledge of the events the witness has seen, but it is very difficult for an untrained person to do this particularly if they themselves have their own knowledge of the events they are asking about. In fact it is best, if possible, to communicate with the witness by email, rather than visiting them, because two people in each other's presence naturally feel that they need to make conversation.  

If you did have a question and answer session, rather than just asking the witness to type up their recollections, you may end up with a Proof of Evidence which looks very supportive of your case – the witness might say in it that they recall something without expressing any uncertainty (when in fact it is something they believe to be the case but are not completely certain about) or they might echo in their account the way you have worded questions when if they have written the Proof of Evidence by themselves they would have used their own words to describe what they witnessed which might give it a different complexion. Or certain relevant information which could potentially put matters in a different light may be omitted which would have been included if they had written the Proof of Evidence by themselves in their own time. It is wrong to obtain a Proof of Evidence which is not the witnesses own “unspun” account and it would, in fact, be counter-productive to do so for a number of reasons. First, when you ask a barrister to advise whether the potential witness should be called as one of your witnesses, the barrister will be basing their advice on the Proof of Evidence you send to them for that witness, and if the Proof of Evidence presents the witness’s recollections as more supportive of your case than they actually are, or as clearer than they actually are, the barrister may advise that the witness should be called when, if the Proof of Evidence had more faithfully reflected the witness’s recollections, with any doubts or qualifications stated, the barrister might have advised otherwise. The result may be that after cross-examination the overall effect of the witness’s evidence is worse for your case than if the witness had not been called at all.

The second reason why such a Proof of Evidence would be counterproductive is that all litigation involves risk (in particular the risk of being ordered to pay the other side’s legal costs if you lose) and so it is important to have as accurate an assessment as possible of the likelihood of winning because if chances of success are relatively low, it may be prudent to reconsider options. If you ask a barrister to advise on the likelihood of success they will be basing their advice, in part, on the Proofs of Evidence for your witnesses which you send to them so it is important that those Proofs of Evidence faithfully reflect the witness’s recollections in order that the most accurate assessment of likelihood of success can be given. 

Tell the witness - in broad terms - what event or situation you are asking them to write down their recollections of

It is important to simply ask the witness to type in, for themselves, what they remember, rather than having a question and answer session. Of course, when you ask them if they will write down their recollections, they need to be told on what subjects and what timescale their recollections are sought, so depending what the case is about you may need to ask them to "write down everything you remember about the recent incident" or "write down everything you remember about how the piece of land was used between 1983 and 2003" or "write down everything you can remember about the contract starting with when their salesman first made contact and including everything about the service they subsequently provided". You should also provide them with a copy of the guidance regarding layout, sequence and format here www.johnantell.co.uk/writing-a-proof-of-evidence 

Witnesses who are slow to write down what they remember

You may get varying responses when you ask potential witnesses to write down what they remember. Responses may range from making it clear that they do not want to help at all, to being very motivated to help in the administration of justice and carefully and promptly writing down what they remember.

A witness's occupation can have an influence on how easy they find it to sit down and write clearly and chronologically what they remember. Journalists and accident investigators, for example, may find it easy, whereas those who do not generally have to do much detailed writing (in their job or leisure activities) may take longer to do it - both longer to get around to doing it and longer to complete it once they have started.
They may never get round to it. Or they may write down some of what they remember and end by saying e.g. "there is more I could tell you but I have't time to write it all down". Even if they do not actually say this, it may be clear from what they have written that there is more they could have written - for example they may have stated facts about what someone else did, or was in a habit of doing, but give no clue as to how it is that they know that - no clue as to in what circumstances they had the opportunity to observe that, or how they found out about it. In all these cases you can engage an investigator to interview them and write down their full statement. You can find an investigator at www.theabi.org.uk

Obviously engaging an investigator to take a statement involves a certain cost. If there are a number of potential witnesses and you are wondering whether it is worth having them all interviewed, what you can do is to send what they have written down - if they have written down at least something - to a barrister and ask for advice as to whether it seems - from that limited information - the witness might be worth having interviewed by an investigator. If the potential witness has not written down anything at all, you could perhaps ask them to make a video (movie) saying what they remember. Movies can be taken on virtually all phones using the "camera" app - you select the front-facing lens (just as if you were going to take a "selfie") and select the "movie" rather than "photo" option. The witness does not need to be concerned about their appearance (brushing their hair and dressing smartly, for example) because the video itself will not be used in court/tribunal: it is simply a convenient way of capturing their recollections so that a barrister can assess whether it might be worth having the witness interviewed. The reason for using a video, rather than just an audio recording, is simply that facial expression and gestures can sometimes make what is being said clearer. 

Using investigators

As explained above, if, when you ask a witness if they will write down what they remember, they never quite get round to it, or if what they have written is obviously a high level summary of what they remember and not the full detail, you can engage an investigator to interview them and write down their recollections. But in some cases you might want to ask an investigator to make the initial contact with the witness (as well as writing down the witnesses' recollections). For example you may not have any contact details for the witness so that you need an investigator to trace them. But even if you do have contact details for a witness there may be some circumstances where you might prefer to ask an investigator to make the initial contact. Examples might be where you have never met the witness before, or where you do not really get on with the witness. Sometimes people, without bearing any ill-will towards each other, simply rub each other up the wrong  way - in such cases a witness may be happy to help in the administration of justice if contacted by a professional investigator when they might be put off if you make the initial contact.       


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