Witness preparation

Importance of Witness Preparation and Proper Categorization of Witnesses

        Witness preparation is a key to successful advocacy, without a credible and persuasive case before the arbitral tribunal may prove difficult or impossible

 

Categorization of witnesses

 

i) Fact witnesses:

o   a) the parties and their own employees;

o   b) witnesses who are under the control of the adverse party;

o   c) individuals who do not have any connection with either party ; and

ii) Expert witnesses

 

Procedural Efficiency

·         There are both positive and negative efficiency arguments available. On the one hand, the preparation of written witness statements involves considerable time and effort and thus substantial costs for the parties. On the other, good witness testimony help frame the most important evidence for the court to consider.

·         Written witness statements give the arbitral tribunal a possibility to prepare for the witness hearing more selectively and save time and costs

·         There exists a risk of fundamental re-shaping of witness statements by lawyers

·         For procedural economy considerations, the arbitral tribunal chooses the witnesses to be summoned, by anticipated appraisal of evidence and its relevance to claims

·         However, non-hearing of other witnesses might breach the right to be heard of the party

·         The arbitral tribunal can request the parties to name the most important witnesses among the named witnesses for the organizational hearing

 

Ethical Issues

·         Counsel's assistance in the process of drafting witness statements ensures that the statement is focused on the issues in dispute and describes all the pertinent facts supported by the relevant documents

·         The witness should not speculate and should identify the basis of knowledge. Whether a statement is primarily drafted by counsel, or by the witness with the assistance of counsel, by signing the witness must confirm that every sentence of it is true

·         However, an important ethical question is the permitted scope of assistance of counsel in witness preparation

o   Domestic legal systems vary greatly as to the degree to which counsel may interview and prepare witnesses. Some legal systems even stipulate that it is unethical for counsel or parties to contact witnesses prior to them giving evidence

o   In the absence of clear rules in international arbitration, it is often difficult to draw the dividing line between acceptable and non-acceptable behaviour

o   It is undesirable for counsels from differing legal families to approach the question of witness preparation based on their domestic litigation experiences

o   Principles of equal treatment relevant in all arbitral laws suggest that the tribunal should make clear guidelines regarding scope of witnesses preparation

o   While interviews and assistance with written statements are more common these days, it remains important the t statement represents truly the witness' evidence

 

 

The Role of National Rules and Other Regulations

 

·         Many laws and arbitration rules are silent on to which extent the preparation of witnesses is permissible

·         National bar codes dealing with witnesses commonly exclude arbitration. In some cases they may apply to arbitration, however binding lawyers from that particular jurisdiction

·         Hence, it is advisable for the arbitral tribunal to issue supplemental procedural rules on this issue to guide the parties

·         Art. 20(5) OF 2014 LCIA Rules: “Subject to the mandatory provisions of any applicable law, it shall not be improper for any party or its legal representatives to interview any witness or potential witness for the purpose of presenting his testimony in written form or producing him as an oral witness.”

·         Code of Conduct of the Bar of England and Wales, Rule 705: “A barrister must not … rehearse, practise or coach a witness in relation to his evidence … ”

·         The IBA Rules of Evidence 2010 expressly provide that it is not improper for a party, its officers, employees, legal advisers or other representatives to interview its witnesses or potential witnesses (Article 4.3)

·         However, the 2010 IBA Rules do not to offer additional guidance on permissible interaction between witnesses and counsel

·         As for interviewing opposing witnesses, wording of Article 4.3 of the IBA Rules of Evidence 2010, stating that it shall not be improper for a party and advisers to interview ‘its’ actual or potential witnesses, might suggests that the other party's witnesses cannot be approached

·         However, it is accepted that in there is no express rule against contacting the other party's witnesses although the tribunal might prevent this due to valid reasons

·         Conversely, opposing experts should not be approached as they have entered into a contractual relationship as part of the opposing team

·         Article 4.3 of the IBA Rules of Evidence 2010, in allowing witness interviews to ‘discuss their prospective testimony’ is broad enough to allow witness coaching for oral testimony

 

Differences in Civil and Common Law Traditions Regarding Witness Preparation:

 

·         Civil law countries are characterised by limitations as to extent of witness preparation

·         In some state courts the parties are precluded from contacting witnesses, which leads to  wasted time in hearing irrelevant witness testimonies

·         In some continental European countries (e.g. Austria, Germany,⁽ the Netherlands, Sweden) counsel may approach and meet a prospective witness. In Belgium, France, Italy and Switzerland, on the other hand, the Rules of Conduct of the Bar still forbid counsel to interview prospective witnesses.[1]

·         Conversely, in common law jurisdictions, lawyers may be found professionally negligent if they did not undertake comprehensive witness preparation (See, e.g., Rule 4.03 of the Rules of Professional Conduct of the Law Society of Upper Canada)

·         Lawyers in England may naturally tend to opt for “witness familiarization”, involving an explanation of the examination process and similar issues

·         Lawyers in the United States will go a step further, undertaking “witness training” involving aggressive mock cross-examinations

 

 

Acceptable v. Non-acceptable Assistance in International Arbitration

 

·                     There is a difference between explaining the procedural issues to the witness, such as  preparing for cross-examination, and detailed coaching as to substantive answers drafted by counsel regarding key questions, which is clearly be unethical

·                     Too much disparity between the written statement and oral testimony can undermine the persuasive value of the witness testimony

·                     It is recommended to ask the witness to prepare the first draft, although there may then be ethical issues if counsel prefers the witness to present things rather differently than the draft

·                     It can also happen that number of statements are being drawn by counsel which cross-reference each other may use identical language. Even where they are attesting to the same matters, this can also undermine the credibility of the statements

·                     If a witness statement is not in the person's native language, lawyer may assist to ensure appropriate expression of information

·                     There is a difference between drafting a statement in the native language and having it translated and drafting by lawyer originally in the foreign language

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[1] Hans van Houtte, Counsel–Witness Relations and Professional Misconduct in Civil Law Systems, Arbitration International, (© LCIA; Kluwer Law International 2003, Volume 19 Issue 419 4) pp. 457 - 463