Say No to American-style Witness Preparation

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Mark Solon, founder of Bond Solon,  comments on witness preparation under the US model.

What is truth? Witnesses are required to swear or affirm that they will tell the truth, the whole truth and nothing but the truth. The problem for lawyers is that the evidence of a witness can make or break the outcome of a trial.

Lord Woolf suggested in his 1996 report, Access to Justice - which led to the current civil procedure rules - that expert witnesses were used as "adversarial tools" and witnesses of fact can be used in the same way.

In the US witness preparation is an art and it is said there that cases are won or lost on the back of it. Lawyers take pride in their skill in preparing witnesses but that preparation is very different to what happens in the UK.

In the US, videotaping of preparation sessions is considered invaluable and the trial team will play back the recording so witnesses can see their performances for themselves. There will be a mock examination based on the facts of the case and there may even be a rehearsal of cross examination in front of a mock jury.

Although lawyers are prohibited from suggesting answers or interfering with the actual testimony, it must be difficult to avoid the temptation when such detailed preparation takes place as a normal part of the lead up to trial.

In the UK there is a clear distinction between form and content: familiarisation with the process of giving evidence and the actual evidence of the witness.

The first is encouraged and the second forbidden. Witness familiarisation is now a normal part of trial preparation but it cannot include coaching or training on how to answer specific questions. Neither can it include mock cross examination using a case study based on similar facts to the hearing.
Witnesses should give their own evidence in their own words without being influenced by lawyers. In other words, they must tell the truth. No one wants a witness to say in court: "That's what my lawyer told me to say."

To avoid any suggestion of coaching, many lawyers will use independent contractors who have no knowledge of the case itself. Against that backdrop, however, a recent Law Society report highlighted the globalisation of law. What happens when a US citizen is prepared by US lawyers in the American way but gives evidence in the UK? Should the UK move towards a US-style system?

There is little appetite in the UK to follow the US and the word "coaching" is distasteful to most UK lawyers. However, as the practice of law becomes more competitive, the pressure to win trials at all costs must be resisted.

In my view, the UK system should remain as there is too strong a temptation to coach witnesses and there are considerable additional costs under the US model. As Mark Twain said: "If you tell the truth, you don't have to remember anything."

This article was first published in The Brief  from The Times on 30 March 2016 and is reproduced by kind permission.