The ultimate nightmare for compliance professionals is for someone to have to appear in court to give evidence concerning some potential failure to conform to a rule, specification, policy, standard, or law—and every litigator’s worst nightmare is when a witness crumbles under cross-examination. Although the witness statement may be wonderful, oral evidence can be very different—particularly when given by a witness who is unfamiliar with court proceedings.
Witness familiarisation is now seen as an essential part of the pre-hearing process, helping witnesses to understand the order of events and prepare for the rigours of cross-examination. It gives confidence to the witnesses and comfort to litigators that the witnesses will perform as well as they can. There have always been clear rules that a witness may never be coached on the evidence they are about to give, but it is welcomed if they are familiarised with the process of giving evidence. This saves court time and makes the courts more user-friendly.
Witness familiarisation should provide those who are to give evidence with a thorough understanding of the theory, practice, and procedure of the court. This includes familiarising the witness with the layout of the court, the likely sequence of events and an overview of the responsibilities of the various people at the hearing. It is now a generally held view that witnesses should not be disadvantaged by ignorance of the process or taken by surprise at the way in which a hearing works. Attending and giving evidence in court can be a daunting, unfamiliar, and uncomfortable experience. Most witnesses have never seen the inside of a courtroom and base their expectations on TV courtroom drama. A poor performance at a hearing can undermine a witness’s confidence and the credibility of their evidence and be detrimental to the case in which they are appearing.
There can be little better demonstration of the importance of delivering evidence well in Court than the recent case in London involving the Chelsea Football Club Manager Roman Abramovich who had to defend a multi-billion-pound lawsuit against him.
Boris Berezovsky claimed that Abramovich, his former business partner, had intimidated him into selling shares in oil company Sibneft at a huge discount, with damages assessed to be in the region of £3.5bn ($U.S.4.4bn).
But in her judgment, Judge Mrs. Justice Gloster dismissed the claim in its entirety, finding Berezovsky to be “an unimpressive, and inherently unreliable witness, who regarded truth as a transitory, flexible concept, which could be moulded to suit his current purposes.”
She added: “I gained the impression that he was not necessarily being deliberately dishonest, but had deluded himself into believing his own version of events. On occasions he tried to avoid answering questions by making long and irrelevant speeches, or by professing to have forgotten facts which he had been happy to record in his pleadings or witness statements.”
Abramovich, on the other hand, Justice Gloster found to be a “truthful and on the whole, reliable witness” and concluded that Berezovsky’s evidence could not without further corroboration be believed where it differed from Abramovich’s version of events.
Giving good evidence within an unfamiliar, hostile, and highly charged court environment is not easy. Abramovich undertook witness familiarisation training prior to the high-stakes trial. It makes sense to fully prepare before attending a multi-million or billion-pound court case; no one would attend even a business meeting without doing the necessary homework.
In the United Kingdom, there are strict guidelines and laws governing witness familiarisation and it must not be conducted by anyone who has knowledge of the facts of the case. Furthermore, familiarisation must be conducted by a lawyer using a purely hypothetical case scenario not the facts of the real case. Witness ‘coaching’—in which the witness practises their real evidence and is helped or led in how to deliver their answers—is strictly illegal.
As part of his training session, Abramovich was advised to listen to the question being put to him, make sure he understood the question, and answer the actual question being asked and not to answer a question that had not been asked. The need to be objective and under no circumstances to be argumentative was emphasised.
Notably Justice Gloster said in her judgment: “Mr. Abramovich gave careful and thoughtful answers, which were focused on the specific issues about which he was being questioned. At all times, he was concerned to ensure that he understood the precise question, and the precise premise underlying, the question which he was being asked.”
Abramovich was also advised to answer questions strictly from his own knowledge of the facts and never to speculate on an answer, and again Justice Gloster observed: “Where he [Abramovich] had relevant knowledge, he was able to give full and detailed answers; he took care to distinguish between his own knowledge, reconstructed assumptions, and speculation.”
During the trial, Abramovich spoke entirely in Russian through the use of a translator. Justice Gloster observed: “He was meticulous in making sure that, despite the difficulties of the translation process, he understood the sense of the questions which [were] being put to him.” The complexities of translation cannot be underestimated.
Therefore, while Abramovich’s trainers could have provided Russian speaking lawyers, they chose to train in English through a Russian translator in order to accurately replicate the court environment. There is a risk that any witnesses giving evidence through a translator will end up in a dialogue with that translator, and the course addressed the need to communicate with and direct answers to the judge alone.
Witness familiarisation should provide those who are to give evidence with a thorough understanding of the theory, practice, and procedure of the court. This includes familiarising the witness with the layout of the court, the likely sequence of events and an overview of the responsibilities of the various people at the hearing.
Abramovich was also put through his paces with a difficult mock cross-examination, which is absolutely vital as most witnesses are taken aback by an adversarial trial system, where it is a fight and the cross examiner tries every tactic possible to damage their credibility.
It is not known what preparation Berezovsky undertook before the trial. Witness familiarisation will not change the strength of the case or the personality of the witness. But when the day of trial arrives, the court fills, and all eyes are on the witness, familiarisation gives them the best possible opportunity to deliver their evidence well.
In the United Kingdom there are strict rules on who can be involved in witness familiarisation. Coaching by one’s own legal team has always been prohibited. In 2005, the Court of Appeal ruled that, in criminal proceedings, none of those conducting witness familiarisation should have any personal knowledge of the matters of issue in the case. The same principles should be followed in civil proceedings. The main benefit of using an independent contractor, unaffiliated to any barristers’ chambers or law firm, for witness familiarisation is that there can be no suggestion of interference in the evidence itself by the fee earner.
The effect of the Court of Appeal judgment was also to give the green light to familiarisation so long as it is done properly. The ruling said the pre-trial familiarisation process “may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless, the evidence remains the witness’s own uncontaminated evidence.”
Those who conduct familiarisation sessions cannot prepare witnesses on what they should say or attempt to persuade the witness into changing their evidence. Familiarisation cannot include training the witness on how to answer specific types of questions. Nor can it include using a case study based on similar facts to the actual case, as this would amount to witness coaching rather than witness familiarisation.
If a client decides on witness familiarisation, it is wise to schedule sessions well before a hearing ; the ideal time for the session to take place is around three weeks before the hearing. This provides witnesses with time to reflect on what they have learned and to prepare for their forthcoming hearing. The aim of any familiarisation session should be to prepare witnesses to give their best possible evidence, and this means that they should be free, or as free as possible, from nervousness. A trial can feel like a very hostile environment to a novice. The smallest mistake can be exploited by a skilled cross-examiner and being unprepared can affect a witness’s credibility. Perhaps the most important lesson should be to teach a witness how to deal with tough questioning and remain calm under pressure.
However, a witness should give his own evidence, in his own words as opposed to being influenced by anyone else; to do otherwise can taint their evidence. The overriding approach is to avoid helping a witness to give evidence that “appears” better but is actually in fact false or misleading.
Further difficulties can arise when a witness in one legal jurisdiction has to give evidence in another. George Bernard Shaw described England and America as “two countries divided by a common language.” That division extends equally to the two countries’ legal systems and the approaches to witness preparation.
An English barrister or solicitor is more constrained than their counterpart American attorney when it comes to preparing a witness for his day in the spotlight. As Ben Holland, a partner in international dispute resolution in the London office of U.S. firm Squire Patton Boggs, explains, that stricture comes not from legislation, but from the conduct rules of the two English professions.
It is, he says, driven “by the principled concern of English lawyers that if you have any meaningful discussion with a potential witness of fact or expert opinion, there is a risk that they won't give an authentic, but a schooled account.” It is “a long-standing rule” that “evidence should, as far as possible, be in their own words,” he says.
Under the English Bar Council’s code of conduct, barristers “must not rehearse, practise with, or coach a witness in respect of their evidence.” Neither are they permitted to “call witnesses to give evidence or put affidavits or witness statements to the court which [they] know, or are instructed, are untrue or misleading.” However, they are entitled “to draw to the witness’s attention other evidence which appears to conflict with what the witness is saying and [they] are entitled to indicate that a court may find a particular piece of evidence difficult to accept.”
The rules for the conduct of U.K. solicitors, contained in the Solicitors Regulation Authority’s handbook, make similar provisions. Solicitors must “not attempt to deceive or knowingly or recklessly mislead the court” or attempt to influence a witness when taking a statement, tamper with evidence, or seek to persuade a witness to change his evidence.
The court has also noted in R v Momodou EWCA 177 (2005) that a witness should give his “own evidence, so far as practicable uninfluenced by what anyone else has said.” The court approved “pre-trial arrangements to familiarise the witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants.” It went on to say that it does not involve “discussions about proposed or intended evidence.”
What does this mean in practice? How far can you go? In preparing the case, Audley Sheppard QC, co-head of international arbitration at Magic Circle firm Clifford Chance, explains that you can go through your client’s case and documents and that of the other side and get your client’s comments on them. When the hearing is approaching, he says, there is a “hierarchy of priorities” that the witness should know. Sheppard continues:
“Most people would tell the witness that the most important thing is that they know their statement and every document referred to in it,” Sheppard says. “You would tell them that they will be asked questions about what the other side says and that they should read and be familiar with the whole of the trial bundle.”
In addition, Sheppard notes that trainers can tell the witness obvious things like the layout of the room, where to sit, to listen to the questions, to speak slowly and clearly, and to look the judge or arbitrator in the eyes. “You may also tell them what the other side’s lawyer and the judge or arbitrator are like,” he adds. “I tell clients to treat [the hearing] like they’re making a presentation to a sceptical board of directors. They aren’t against you, but they don’t want to invest in your project, so you need to persuade them.”
While State-side, taking as an example the New York State Bar Association, the rules are less prescriptive and less strict. The only prohibition is that a lawyer must not “participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false.” As Holland notes: “U.S. lawyers don’t have the same constraints, and they have a greater opportunity to prepare a witness. They can engage with the witness about the substance, not just the form, of their evidence and the best way to give it, and can rehearse it with them so that they are word-perfect. In the United States, it might even be considered negligent if a practitioner did not do so.”
Where you are involved in litigation with little connection to England, but where the team of lawyers on one side are all English and on the other side American, says Holland, it can create an “awkward tension.” Though he points out that there is a “fix” to level the playing field, you would just include a U.S. lawyer on your team.
But, adds Sheppard, there is a debate to be had about how far the prohibition on English lawyers goes. “It certainly exists for the English bar and for court work; it arguably applies to solicitor advocates doing English court work, but it is debateable whether it applies to English lawyers doing international arbitration.” And, in any event, he says, “the difference is not really that significant because neither of us can tell a witness to lie or create an answer for them to give in the hearing.”
Mark Solon is Chairman of Wilmington Legal.
Editor’s note: Wilmington Legal is part of Wilmington plc, the parent company of Compliance Week.