I enjoyed The Lawyer's front page article on the commercial court working party suggestions on the use of witnesses (6 August).
Doing away with witnesses in commercial cases is not fanciful. The function of a witness is to earn money for lawyers. Copying documents, drafting proofs of evidence, late working, interminable meetings – all rack up as a nice little earner.
If we are lucky we can dispute privilege, challenge admissibility, fight over covering up of exhibits and appendices, attack the other side for coaching and even prepare civil evidence act notices in case our man turns up his toes on day two of the 26-week trial.
Once witness statements are exchanged, protests lodged and positions to submit further evidence reserved, there's damn-all surprising left for a witness to say, particularly if he's properly rehearsed beforehand.
A sensible lawyer shouldn't be surprised by witnesses at trial – and should have dug out murky evidence much earlier. No lawyer should get caught by "smoking gun" documents either (unless his client is a complete crook, and that is usually discovered and a substantial sums is requested early on).
The move to appoint real court experts is not a bad idea: it has always been odd how parties can always find an expert to support them if the price is right (I mean, if they are compensated for the skill, time and attention they have brought to the matter).
The idea should be that the dirty work is done early and the judge gets the resultant paper, unless there is a special reason why not. While advocacy benefits, in argument, from being interactive, witnesses do not (which is why they sit outside).
In criminal and matrimonial areas, where lying and obfuscating are traditional, you need the witnesses there to have a go at. But in commercial matters people are generally honest, though they may have different viewpoints that need to be tested early on. We don't need to waste time and taxpayers' money with oral evidence in commercial cases. A good deposition session – lots of hot lights, cameras and microphones shoved up the victims' nostrils and an apologetic notary – that's the way to go.
The report says: "Many clients are prepared to accept a rougher form of justice if the price of that lesser justice is more acceptable."
It is probably rougher justice to spend hours on a witness statement or have a witness fail with stage fright. It's enough of a lottery taking a chance on the judge's mood without having to gamble on witnesses as well.
The cost is too high even for the largest commercial entities.