Admissibility - is the evidence admissible to the court? Your check list should contain privilege, admissions, illegally obtained evidence, self-incrimination...
Balance of probabilities - the civil standard of proof. More probable than not?
Cross-examination - prepare your witnesses for the fact that the other side’s counsel is pursuing their own agenda. They are not seeking to explore every fact, but are usually seeking to elicit a certain response.
Discretion - the court has discretion to control the nature of evidence it receives, the issues on which and the way in which it receives evidence. It can also exclude admissible evidence and limit cross examination.
Evidential burden of proof - the obligation on a party to adduce sufficient evidence to enable the court to make a favourable finding on an issue.
Fact finding - what can you prove? The most important part of the process: keep asking questions until you are confident you have all the facts at your fingertips and know how to support them.
Good facts strengthen your case; bad facts undermine it. You need to be able to prove the good facts (to be uncontested if possible) and counter the bad as much as possible.
Hearsay evidence is a written or oral statement which was made out of court and is repeated and relied on in court in order to prove the truth of the matters stated, where the maker of the statement is not giving their own first-hand evidence in the proceedings.
Imperfect recollections are part of life. Reassure your witnesses that it is fine to correct or clarify their evidence on the stand (within reason!); or to not remember or know something.
Judiciary - make their lives as easy as possible. Solicitors: do not underestimate the importance of making sure your statements and exhibits are correctly paginated. Witnesses: address the judge, not the barristers.
Key witnesses need to be identified and approached as early in the life of a dispute as possible.
Legal burden of proof is the obligation imposed by law on a party to prove their position on a given issue.
Manners - help your witnesses stay on the right side of the judiciary by explaining how the judiciary should be addressed.
Notices - do you need to file and serve a notice to admit facts, or a notice to admit or produce documents? And let’s not forget those hearsay notices…
Opinion - no thank you, focus on facts.
Preparation is key. Witnesses should be familiar with the witness statements they have made, including the exhibits, to increase confidence and avoid contradicting earlier evidence.
Questions - encourage your witness to focus on and only answer the question they are actually being asked, and not to second guess what is coming.
Relevance - evidence is only admissible if it is relevant, ie if it helps the court make a decision on an issue in dispute.
Statement of truth - witnesses must understand the importance of giving honest evidence, of signing the statement of truth, and the possible consequences if they do not.
Taking a proof - the first stage in the process of creating a witness statement. A full, unedited record of what the witness first said, which is not shown to the other side or the court, and remains privileged.
Unfair questioning - witnesses can ask the judge whether they need to answer an unfair or irrelevant question; counsel (or the judge) may also intervene.
aVailability - make sure you know when your witnesses can attend trial. They may benefit from attending earlier parts of the hearing too, so they know what to expect.
Weight - how persuasive is your evidence? Hearsay or secondary evidence will be given less weight.
eXercise caution when referring to documents in witness statements. The other side is entitled to inspect a document mentioned in a witness statement, witness summary or affidavit.
Yourself - it is important for witnesses to be as natural as possible in the witness box, to appear credible. Easier said than done!
Zen - an aspirational (but ideal) state for a witness when giving evidence!
This article was published in New Law Journal in June 2017.
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