Obtaining Witness Statements



It may be advisable to obtain witness statements from people who witnessed events relevant to your case. This is important if there are matters which you yourself did not witness, and it can also be important even for things you did witness, if they are disputed. 
 


Using an investigator to take a witness statement

You can ask a private investigator to take a witness statementGenerally you will need to tell the investigator what the case is about - e.g. a road accident, or how a piece of land was used between 1983 and 2003, or "a contract with a company starting with when their salesman first made contact and including everything about the service they subsequently provided" - so that the investigator knows what to ask the witness about. You can ask me to draft a letter for you to send to the investigator explaining what the case is about and any particular questions witnesses could be asked.

You will also need to tell the investigator the number and name of the court/tribunal case and which court or tribunal it is proceeding in so that this can be included as a heading on the witness statement like this:


CLAIM NO: HC-2017-123456
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

JOHN SMITH
Claimant


- and -    


PAULA JONES
Defendant


FAQ

How can I find an investigator to take a witness statement?

You can find a list of investigators at www.theabi.org.uk Investigators provide a wide range of services. Different investigators might carry out surveillance, tracing missing persons, tracing witnesses, serving legal documents (process serving), taking witness statements, and other activities. So it is important, when choosing an investigator to take a witness statement, to ring them up and ask them questions about what kind of work they specialise in - taking witness statement might just be a sideline. 

Some investigators do not take witness statements themselves but outsource this work. Whilst outsourcing is not automatically a bad idea, there is obviously a huge difference between outsourcing to a carefully chosen person who has proved themselves proficient in the past, and using an agency who will pass the work to the next person on their books who happens to be available. A large proportion of agency business is concerned with low value traffic accident claims. These are claims funded by insurance companies who, as part of their policy cover, agree to fund them, and generally the insurance company is more concerned with limiting the cost of litigation than with the result - after all if their policyholder loses the case that means the insurance company can charge them a higher premium on renewal. Consequently the quality of witness statements outsourced through agencies is often not high. So if an investigator outsources you need to ask some searching questions.

Many private investigators are former police officers. The normal retirement age for police officers is lower than for most other occupations and many police officers make a second career as a private investigator and have a lot of experience taking witness statements. Criminal law is not the same as civil law but the principles of taking witness statements are essentially the same, and you can ask me to draft a letter for you to send to the investigator explaining what the case is about and any particular questions witnesses could be asked, based on what is most relevant under civil law. 

What do I do if I do not have the contact details of a witness

It may the the case that you do not have the contact details of a witness. For example if you case is about how land you currently own was used by past owners, you may be able to find the name of a past owner from the Land Registry but not their current address. In this case you can ask the investigator to see if they can trace the witness as tracing witnesses is one of the services which most investigators provide.                                                        

I have already obtained a statement from a witness - why do I need an investigator to take a further statement?

Unless you have some training and experience in taking witness statements, if you yourself try to obtain a statement from a witness it may suffer from one of two problems:

  • It may be too general - just giving the witness's conclusions rather than their detailed recollections
  • It may contain an unconscious "spin'
In order to explain why this is and why it matters I need first of all 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, for a statement. If the statement 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 statement 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 statement 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 if you have contacted a witness and had a question and answer session with them 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 their recollection is the same as yours, 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. 

Sometimes people confuse giving a statement with something like countersigning someone's passport or licence application. If you are asked to countersign someone's passport or licence application form you may be asked (depending what the wording of the declaration is) to confirm that (as well as knowing the person applying for a certain number of years) the information they have written on the form is correct as far as you know. Some of the information in the application form may be personal details about the applicant which you did not know - generally you are not signing the form to say that you know them all to be true but simply confirming that there is nothing you know or suspect to be untrue - i.e. that the details on the form are correct as far as you know. But a witness statement is not the same. It should contain just what the witness has actually seen/heard themselves.

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. 

You may end up with a statement 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 had been asked neutral non-leading questions 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. It is wrong to obtain a statement which is not the witness's 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 statement you send to them for that witness, and if the statement 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 statement 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 statement 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 statement for your witnesses which you send to them so it is important that those statements faithfully reflect the witness’s recollections in order that the most accurate assessment of likelihood of success can be given. 


Disclaimer


This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.

The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.


This page was lasted updated in July 2017 Disclaimer