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I saw this great thread on twitter from Sean Jones QC ( https://twitter.com/seanjonesqc ) and thought some readers may find it useful:
Since some of you expressed an interest in the talk I used to give on being an effective witness, here is a mega-thread that the rest of you would be well-advised to ignore /1
When giving evidence your one job is simply to tell the truth. It is not your job to win the case. That is the lawyers’ job - they get paid for it, you do not. /2
Remember, because the lawyers will forget, that they are there to help you and not vice versa. If there are things you want to raise with them prior to the hearing, do so. Don’t wait to be asked. /3
The help that your lawyer is able to give you does not stretch to telling you what you should say. If your lawyer asks you about an aspect of your evidence and you respond by asking them what they would like you to say, your lawyer will become twitchy and start thinking of jail/4
In the run up to your case, your lawyer will want to waste your valuable time “taking instructions”. You will be bombarded with draft witness statements that get in the way of doing the things that really matter. /5
You will only truly appreciate how much it matters to have a properly prepared witness statement when you are sat being cross-questioned about its minutiae. In the meantime, take your lawyer’s word for it. /6
Early enthusiastic involvement in the preparation of your statement will ensure:
(1)You have had a real opportunity to think about the events you are describing and your evidence is presented in a clear and logical fashion; /7
(2) You have had a chance to look through the documents referred to in your statement so that nothing takes you by surprise on the day; /8
(3) You can be sure that the words are your own and that your lawyer is not committing you to saying something that you don’t really mean; and /9
(4) Areas of difficulty or concern are identified at an early stage so that you are properly prepared to deal with them at the hearing. /10
Once your statement is prepared, the pair of you should spend time together getting to know one another. Read it and re-read it. Read it twice the night before the hearing and twice more before the hearing starts. /11
Familiarity with the statement avoids two situations that commonly make witnesses look foolish and damage their credibility: /12
1. You read out the statement in a faltering fashion thereby suggesting the words on the page are unfamiliar. The court concludes that the words have been forced into your mouth by scheming underhand lawyers. The overall effect is like a forced confession at a show trial; /13
2. Asked why you've said one thing in answer to a question and quite another in his statement, you answer: “I don’t know why that’s in my statement - you’d better ask my solicitor”. The lawyer then repeatedly bumps their own forehead on the desk in front of them. /14
On TV there's always a moment where defence counsel mutters something like:
“It was you who killed your wife, wasn’t it?”
The witness looks sweaty, fidgets and says:
“Yes, damn you and I would have got away with it if it hadn’t been for those meddling kids”. /15
This does not happen much in real life. Witnesses do not break down and confess. Irrefutable proof is not carried through the door of the court at the last moment by an unshaven private detective. /16
A witness who remains calm and sticks patiently to their evidence is very difficult for even a skilled cross-examiner to make headway with. Cross-examiners thrive on what you give them to work with. /17
You have a real advantage over the person asking you questions. Remember, you know what you are talking about. They are like a computer; they only have the information programmed into them by their client. /18
They will know the documents and the contents of your statement well (which is why you should too), but their knowledge will only go so deep. They are living in fear that you will have a straightforward answer to their difficult questions. /19
Very few witnesses find themselves transfixed by fear throughout cross-examination. There is nothing like being called a liar to really perk you up. /20
The real trouble starts when you decide that maybe they can turn the tables and make the cross-examiner look stupid. It is worth reminding yourself that you may not be as clever as you think you are and the cross-examiner may not be as stupid as they look. /21
Remember it's not an argument you're trying to win - you are there to answer questions truthfully. /22
Witnesses very often ask for reassurance that their lawyer will “object” to any question that the witness would prefer not to answer. Generally-speaking your lawyer will be anxious to object as little as they can. /23
Someone who objects whenever they think their client is looking uncomfortable:
(1)Communicates to tribunal that they have no faith in the client; and
(2)Wears the tribunal’s patience through, so that well-founded objections get rejected along with the ill-founded ones. /24
So how do you give evidence effectively? It is very simple: do what the oath requires of you. Tell the truth, the whole truth and nothing but the truth. /25
Telling the truth: What this means is only telling the court things you know for fact. Set out below are a number of examples of what can happen when a witness strays from the path of truth and righteousness: /26
The infinitesimal possibility: One common cross-examiner’s trick is to ask you to speculate about whether it is “possible” that a particular event occurred. /27
Contrary to what is commonly assumed one cannot refuse to answer a question merely because it is “hypothetical”. The issues commonly considered by courts often involve the consideration of hypothetical issues. /28
All witnesses asked whether something is “possible” are struck with a bizarre generosity. They think to themselves “I suppose there is an infinitesimal possibility that it may have happened”. However what they say aloud is “Yes, I suppose it is possible”. /29
A few moments later the witness finds that everyone is now working on the assumption that, rather than being a mere possibility, the event put to him actually happened. /30
The simple way to avoid this is to actually let the tribunal know how likely the event was (e.g. “I suppose it is possible but exceptionally unlikely”). Unless you tell the court how likely you think something is they are left guessing. /31
Filling the gaps in your memory: You are asked about something. You can’t remember. You don’t want to sound stupid, so you cover up by telling the Tribunal what you assume must have happened. If you are going to do this, be explicit about it. /32
It is perfectly acceptable to say “I do not recall whether I typed this minute immediately after the meeting, but I think it likely that I would have done as that is my usual practice”. /33
Resist the temptation simply to say: “I would have typed it up immediately” in the hope that no-one will notice that you can’t remember what actually happened. The phrase “would have” is heard so often in the court that it comes across as an admission that you can’t remember. /34
Be honest. The cross-examiner will otherwise force you to admit you don’t recall and you will look foolish for not having been honest immediately. /35
Creating gaps in your memory: Sometimes you may feel tempted to forget a particular matter. Honesty nevertheless remains the best policy. /36
Furthermore, with very serious matters, the court will simply not believe you when you tell them you can’t remember: “I do not recall whether I beat my colleague with a cricket bat, but I think it unlikely that I did as that is not my usual practice”. /37
Mea culpa: One of the risks of lapsing into thinking that it is your job to win the case is that you become worried about ever admitting that you or your organisation were less than perfect in anything you did. That impulse will lead you astray. /38
In Employment Tribunal proceedings, for instance, you may be trying to persuade the panel that you are a reasonable person who has acted in a reasonable manner throughout. Defending the indefensible will give your cross-examiner the chance to make you look unreasonable. /39
One approach favoured by cross-examiners is to ask you to say whether a hypothetical course of conduct would have been reasonable. What will be described to you will be eminently reasonable and you will agree that it is. /40
Matters are left there. You then find that you are treated as if you have accepted that what you did was unreasonable. /41
Telling the whole truth: Questions may be designed to restrict your ability to give a full account. One popular line of attack for a cross-examiner is the closed question. You will become wearily familiar with the phrase “It’s a yes or no answer”. You probably won’t agree. /42
The temptation when faced with an unreasonably restrictive question is not to answer it and to answer, instead, the question you think you should have been asked. That is not the best way to deal with it. You will appear evasive and unhelpful. /43
Better is a variation on the following theme:
“The answer is no, but that is not a complete answer. There are other things you have to know in order to be able to understand it.” /44
If you say something along these lines one of two things will happen. Either the court will let you expand your answer there and then or else you will tip off your lawyer that there is something that they should take you back to in re-examination. /45
Passing the memory test: Another common attack is to pose an impossible memory test:
“This isn’t mentioned anywhere in the minutes is it?” /46
The temptation is to avoid appearing as if you do not know what the documents say by agreeing with the proposition. Insist instead on being taken to the relevant document and being given an opportunity to read it. /47
If you think that the relevant matter is dealt with in another document, but can’t remember which one, tell the court that you think a relevant document exists and your lawyer will start looking for it. /48
Nothing but the truth: The way to put a song in a cross-examiner’s heart is to decide to try to take him on. There he sits, smugly criticising you about things he knows nothing about. What you wouldn’t give to wipe that smile of his face. He asks you a stupid question … /49
Why not tell him it's stupid? Once you start fencing with your cross-examiner you will, momentarily, feel wonderful. How fantastic to get off the back foot and land a blow! /50
Unfortunately, you will come across as being deliberately difficult and evasive. That is because you are being difficult and evasive. Courts hate this sort of thing. Do not do it. Let the cross-examiner get worked up. /51
How can you tell when you are fencing? If you hear yourself asking the cross-examiner a question which is anything other than “Sorry can you repeat that?” you are probably getting, metaphorically, into an arm wrestling contest. /52
The cracked record: The least endearing trait in a witness is looking upon the questions asked as punctuation marks between opportunities to say the same thing over and over again. Answer the Qs that you're asked and you cannot go far wrong. Leave the speeches for the lawyers /53
Some witnesses end up enjoying cross-examination (no, really). The danger most frequently lies in over-enthusiasm. /54
Even if you can’t abide it, it does not last forever. The calmer you stay, the more likely the cross-examiner is to think they’d rather move on and try their luck with the next witness. /end
Since some of you expressed an interest in the talk I used to give on being an effective witness, here is a mega-thread that the rest of you would be well-advised to ignore /1
When giving evidence your one job is simply to tell the truth. It is not your job to win the case. That is the lawyers’ job - they get paid for it, you do not. /2
Remember, because the lawyers will forget, that they are there to help you and not vice versa. If there are things you want to raise with them prior to the hearing, do so. Don’t wait to be asked. /3
The help that your lawyer is able to give you does not stretch to telling you what you should say. If your lawyer asks you about an aspect of your evidence and you respond by asking them what they would like you to say, your lawyer will become twitchy and start thinking of jail/4
In the run up to your case, your lawyer will want to waste your valuable time “taking instructions”. You will be bombarded with draft witness statements that get in the way of doing the things that really matter. /5
You will only truly appreciate how much it matters to have a properly prepared witness statement when you are sat being cross-questioned about its minutiae. In the meantime, take your lawyer’s word for it. /6
Early enthusiastic involvement in the preparation of your statement will ensure:
(1)You have had a real opportunity to think about the events you are describing and your evidence is presented in a clear and logical fashion; /7
(2) You have had a chance to look through the documents referred to in your statement so that nothing takes you by surprise on the day; /8
(3) You can be sure that the words are your own and that your lawyer is not committing you to saying something that you don’t really mean; and /9
(4) Areas of difficulty or concern are identified at an early stage so that you are properly prepared to deal with them at the hearing. /10
Once your statement is prepared, the pair of you should spend time together getting to know one another. Read it and re-read it. Read it twice the night before the hearing and twice more before the hearing starts. /11
Familiarity with the statement avoids two situations that commonly make witnesses look foolish and damage their credibility: /12
1. You read out the statement in a faltering fashion thereby suggesting the words on the page are unfamiliar. The court concludes that the words have been forced into your mouth by scheming underhand lawyers. The overall effect is like a forced confession at a show trial; /13
2. Asked why you've said one thing in answer to a question and quite another in his statement, you answer: “I don’t know why that’s in my statement - you’d better ask my solicitor”. The lawyer then repeatedly bumps their own forehead on the desk in front of them. /14
On TV there's always a moment where defence counsel mutters something like:
“It was you who killed your wife, wasn’t it?”
The witness looks sweaty, fidgets and says:
“Yes, damn you and I would have got away with it if it hadn’t been for those meddling kids”. /15
This does not happen much in real life. Witnesses do not break down and confess. Irrefutable proof is not carried through the door of the court at the last moment by an unshaven private detective. /16
A witness who remains calm and sticks patiently to their evidence is very difficult for even a skilled cross-examiner to make headway with. Cross-examiners thrive on what you give them to work with. /17
You have a real advantage over the person asking you questions. Remember, you know what you are talking about. They are like a computer; they only have the information programmed into them by their client. /18
They will know the documents and the contents of your statement well (which is why you should too), but their knowledge will only go so deep. They are living in fear that you will have a straightforward answer to their difficult questions. /19
Very few witnesses find themselves transfixed by fear throughout cross-examination. There is nothing like being called a liar to really perk you up. /20
The real trouble starts when you decide that maybe they can turn the tables and make the cross-examiner look stupid. It is worth reminding yourself that you may not be as clever as you think you are and the cross-examiner may not be as stupid as they look. /21
Remember it's not an argument you're trying to win - you are there to answer questions truthfully. /22
Witnesses very often ask for reassurance that their lawyer will “object” to any question that the witness would prefer not to answer. Generally-speaking your lawyer will be anxious to object as little as they can. /23
Someone who objects whenever they think their client is looking uncomfortable:
(1)Communicates to tribunal that they have no faith in the client; and
(2)Wears the tribunal’s patience through, so that well-founded objections get rejected along with the ill-founded ones. /24
So how do you give evidence effectively? It is very simple: do what the oath requires of you. Tell the truth, the whole truth and nothing but the truth. /25
Telling the truth: What this means is only telling the court things you know for fact. Set out below are a number of examples of what can happen when a witness strays from the path of truth and righteousness: /26
The infinitesimal possibility: One common cross-examiner’s trick is to ask you to speculate about whether it is “possible” that a particular event occurred. /27
Contrary to what is commonly assumed one cannot refuse to answer a question merely because it is “hypothetical”. The issues commonly considered by courts often involve the consideration of hypothetical issues. /28
All witnesses asked whether something is “possible” are struck with a bizarre generosity. They think to themselves “I suppose there is an infinitesimal possibility that it may have happened”. However what they say aloud is “Yes, I suppose it is possible”. /29
A few moments later the witness finds that everyone is now working on the assumption that, rather than being a mere possibility, the event put to him actually happened. /30
The simple way to avoid this is to actually let the tribunal know how likely the event was (e.g. “I suppose it is possible but exceptionally unlikely”). Unless you tell the court how likely you think something is they are left guessing. /31
Filling the gaps in your memory: You are asked about something. You can’t remember. You don’t want to sound stupid, so you cover up by telling the Tribunal what you assume must have happened. If you are going to do this, be explicit about it. /32
It is perfectly acceptable to say “I do not recall whether I typed this minute immediately after the meeting, but I think it likely that I would have done as that is my usual practice”. /33
Resist the temptation simply to say: “I would have typed it up immediately” in the hope that no-one will notice that you can’t remember what actually happened. The phrase “would have” is heard so often in the court that it comes across as an admission that you can’t remember. /34
Be honest. The cross-examiner will otherwise force you to admit you don’t recall and you will look foolish for not having been honest immediately. /35
Creating gaps in your memory: Sometimes you may feel tempted to forget a particular matter. Honesty nevertheless remains the best policy. /36
Furthermore, with very serious matters, the court will simply not believe you when you tell them you can’t remember: “I do not recall whether I beat my colleague with a cricket bat, but I think it unlikely that I did as that is not my usual practice”. /37
Mea culpa: One of the risks of lapsing into thinking that it is your job to win the case is that you become worried about ever admitting that you or your organisation were less than perfect in anything you did. That impulse will lead you astray. /38
In Employment Tribunal proceedings, for instance, you may be trying to persuade the panel that you are a reasonable person who has acted in a reasonable manner throughout. Defending the indefensible will give your cross-examiner the chance to make you look unreasonable. /39
One approach favoured by cross-examiners is to ask you to say whether a hypothetical course of conduct would have been reasonable. What will be described to you will be eminently reasonable and you will agree that it is. /40
Matters are left there. You then find that you are treated as if you have accepted that what you did was unreasonable. /41
Telling the whole truth: Questions may be designed to restrict your ability to give a full account. One popular line of attack for a cross-examiner is the closed question. You will become wearily familiar with the phrase “It’s a yes or no answer”. You probably won’t agree. /42
The temptation when faced with an unreasonably restrictive question is not to answer it and to answer, instead, the question you think you should have been asked. That is not the best way to deal with it. You will appear evasive and unhelpful. /43
Better is a variation on the following theme:
“The answer is no, but that is not a complete answer. There are other things you have to know in order to be able to understand it.” /44
If you say something along these lines one of two things will happen. Either the court will let you expand your answer there and then or else you will tip off your lawyer that there is something that they should take you back to in re-examination. /45
Passing the memory test: Another common attack is to pose an impossible memory test:
“This isn’t mentioned anywhere in the minutes is it?” /46
The temptation is to avoid appearing as if you do not know what the documents say by agreeing with the proposition. Insist instead on being taken to the relevant document and being given an opportunity to read it. /47
If you think that the relevant matter is dealt with in another document, but can’t remember which one, tell the court that you think a relevant document exists and your lawyer will start looking for it. /48
Nothing but the truth: The way to put a song in a cross-examiner’s heart is to decide to try to take him on. There he sits, smugly criticising you about things he knows nothing about. What you wouldn’t give to wipe that smile of his face. He asks you a stupid question … /49
Why not tell him it's stupid? Once you start fencing with your cross-examiner you will, momentarily, feel wonderful. How fantastic to get off the back foot and land a blow! /50
Unfortunately, you will come across as being deliberately difficult and evasive. That is because you are being difficult and evasive. Courts hate this sort of thing. Do not do it. Let the cross-examiner get worked up. /51
How can you tell when you are fencing? If you hear yourself asking the cross-examiner a question which is anything other than “Sorry can you repeat that?” you are probably getting, metaphorically, into an arm wrestling contest. /52
The cracked record: The least endearing trait in a witness is looking upon the questions asked as punctuation marks between opportunities to say the same thing over and over again. Answer the Qs that you're asked and you cannot go far wrong. Leave the speeches for the lawyers /53
Some witnesses end up enjoying cross-examination (no, really). The danger most frequently lies in over-enthusiasm. /54
Even if you can’t abide it, it does not last forever. The calmer you stay, the more likely the cross-examiner is to think they’d rather move on and try their luck with the next witness. /end