Giving evidence in court can be a daunting prospect, particularly because for many witnesses it will be a totally unfamiliar experience. However steps can be taken to help prepare a witness for trial, provided that such preparation is carried out within certain parameters so as to avoid any allegations that a witness has been 'coached'.
This guide addresses what can and cannot be done to assist you in preparing to give evidence at a trial.
Being fully prepared is very important to giving evidence at trial successfully. Being underprepared could affect your credibility and performance in the witness box, which potentially could damage the case of the party which has asked you to give evidence.
To ensure that you are as fully prepared as possible, you should:
- read your statement before going to court – it may be necessary to do this several times to ensure that you are familiar with the issues raised in your evidence;
- read through and familiarise yourself with any supporting documents that are referred to in your witness statement, although you should note that these documents will be available at court for you to refer to;
- if requested to do so, read through the pleadings - which are the documents that set out each party's case - and possibly the witness statements of other witnesses in the case;
- raise any queries or concerns with a lawyer, so that they can address them as far as they are permitted and able to do so.
Part of your preparation may include familiarising yourself with your evidence and the issues in the case. It cannot include coaching or training you on how to answer specific types of questions. Neither can it include using an example case based on similar facts to the actual hearing, as this could amount to witness coaching rather than witness familiarisation.
In essence, you should be giving your own evidence in your own words as opposed to being influenced by anybody else. The overriding approach is to avoid helping you give evidence that appears better, but is in fact false or misleading. However, the process of familiarisation is encouraged by the courts and should help give you greater confidence in giving evidence. In addition to thorough preparation, witness familiarisation can extend to:
- familiarising yourself with the trial process, location and the people involved – this can include getting descriptions of the different participants' roles, getting descriptions of what happens at trial and visiting the court;
- getting tips on giving evidence, and running through examples of what to do and what not to do. The tips and examples should help show the different tactics that barristers use to cross-examine witnesses, and may include tips on how to present yourself in court and the best approach to responding to cross-examination questions;
- receiving reminders about the key issues in the case and highlighting areas that may be difficult for you, but this should never include giving you an 'answer' to potential cross-examination questions. You must give your own evidence in your own words;
- having a mock cross-examination, with the purpose of showing you how it feels to be cross-examined and your reaction to the type of questioning. This can help give some witnesses greater confidence for the actual hearing. Although these may be helpful for some witnesses, mock cross-examinations should not be done to help the witnesses improve their answers or be based on facts similar to the actual hearing.
Each party who is relying upon a witness to support their case will call their witnesses to the witness stand. The person or organisation which has brought the case to court is called 'the claimant'. The other party is called 'the defendant'.
The claimant's witnesses will be called to give evidence first. The witness will be 'sworn in' and asked by the claimant's counsel to give their name and address and to confirm whether the witness statement they have given is true to the best of their knowledge and belief. This is all that the claimant's counsel will do unless there are any corrections to be made to the witness statement, in which case the claimant's counsel will invite the witness to mention these at this stage.
The witness will then be questioned about his evidence by the defendant's counsel; this is called cross-examination. Also, the judge has a complete discretion to allow supplementary evidence expanding on matters already in the witness statement. Cross-examination is not limited to matters given in evidence in the witness statement although it will be primarily about this evidence. If inappropriate or unfair questions are asked then the claimant's counsel may be able to intervene.
The purpose of cross-examination is to elicit favourable evidence in support of the other party. Counsel for each party may seek to expose any contradictions or weaknesses in the evidence or to challenge the credibility of the witness being cross-examined. Counsel will be allowed to ask leading questions (ie, questions which suggest the required answer) and may also ask questions about documents relevant to the evidence so that it will be important for a witness to ensure that he is generally familiar with these documents.
A witness will normally be given an opportunity to look at a copy of the document being referred to enable them to refresh their memory. If a witness is not invited to see a document, they can ask to be shown it to verify its contents.
Depending upon the complexity of the dispute between the parties and your role in the dispute, cross-examination can be relatively short but in some instances it can take several days.
Once cross-examination has been completed, the claimant's counsel may seek to "re-examine" the witness. The main purpose of re-examination is to give a witness an opportunity to clarify points made in cross-examination which may seem adverse but in fact are not. Re-examination must be confined to matters arising out of the cross-examination.
Once all the claimant's witnesses have been called, the defendant will call its witnesses and the same procedure as outlined above will be followed.