Have you ever seen a nervous litigator? It’s probably because their witness of fact is about to enter the witness box. Naturally, it’s a tense time for all concerned. It’s best to do whatever you can to prepare them for the experience.
It is a fundamental principle of litigation that a witness’s evidence must be the property of that witness alone and should not be contaminated or fabricated in any way. So you must consider how far you can prepare a witness without offending this principle. In the UK you will need to be more cautious and do less than your counterparts on the other side of the Atlantic.
The position in the UK is unclear. The professional rules and guidance provided by the Bar Council and the Law Society are not comprehensive. Barristers are prohibited from rehearsing with, or coaching, a witness, while solicitors must not tamper with evidence or suborn a witness into changing their evidence. Apart from the Salisbury case (see below), the authorities do not really add anything other than to reinforce the message that rehearsing or coaching a witness on their evidence is objectionable.
Earlier this year, the courts were required to consider the propriety of witness training courses in R v Barbara Salisbury (2004). Such courses are being offered to law firms by specialist course providers. They appear to address the tricky issue of witness preparation in a way that does not contravene the principles of litigation and professional conduct rules. The court found that, on the facts, there was nothing objectionable about the training course that was provided to witnesses. Reading between the lines of the judgment, the judge recognised the potential benefit such courses might have for inexperienced witnesses.
However, before you treat this case as a carte blanche to send your nervous witnesses on a training course, you should be aware that this case was decided very much on its own facts. The judge warned that this type of course was capable of having an impact on the reliability of a witness and there was a potential for harm. Any decision you make on the permissibility of a course should be done on a case-by-case basis, which of course requires you to make a decision in the absence of any firm guidance on the matter.
By way of contrast, in the US lawyers may be remiss in their obligations if they do not thoroughly prepare their witnesses. In the recent New York case Weil Gotshal & Manges LLP v Fashion Boutique of Short Hills Inc, a former client counterclaimed on a fee dispute brought by Weil for malpractice on the basis that the firm had inadequately prepared its witnesses for trial. Of course, the same principles apply in relation to coaching witnesses as in the UK. As early as 1880, the New York Court of Appeals in Re Eldridge suspended an attorney for writing answers out for witnesses.
The guidance given to US law-yers on witness preparation is much clearer and practices are more permissive than in the UK. US litigators spend a lot of time observing and rehearsing their witnesses in order to flush out gaps in recollections, inconsistencies and other flaws in their evidence. The Restatement of the Law Governing Lawyers sets out ‘safe harbour’ practices, which include revealing to the witness other testimony or evidence in the case, reviewing the factual context of the witness’s evidence and discussing probable lines of hostile cross-examination. Witness preparation may include rehearsal testimony and lawyers may even suggest the words a witness may use to make their testimony clearer.
In the UK, practical guidance from the Bar Council and the Law Society would be welcomed by practitioners in an area which, to say the least, is somewhat grey.