Dispute Resolution

Being a witness and giving evidence in court can be a daunting experience. For many people, giving evidence as a witness will be their first experience of the formal court environment. It is understandable that this can cause some anxiety and concern. What can you expect to happen before having to attend court and what might you be asked to do?

Statements

All going well, the witness citation shouldn’t come as too much of a surprise to you! Before being cited to attend court it is likely that you will have been asked to give a statement to the lawyer acting for the person who wants you to give evidence. In most cases, the statement you give will only be for the use of the lawyer taking it. This type of statement is known as a precognition. Precognitions are not usually signed. They are used to help the lawyer analyse the case and to decide what questions to ask you in court.

In some cases you may also be asked to give a formal witness statement. This type of statement is lodged with the court and forms part of the witness’s evidence. A formal witness statement should be in your own words and set out the evidence you would give if you were standing in court. Witnesses are asked to confirm in court, under oath, that the content of a formal witness statement is the truth. Before signing a witness statement, make sure you are happy with what it says. If you have any concerns at all, raise them with the lawyer who has asked for the statement.

Citation

A formal witness citation is either sent by recorded delivery or delivered by court officers. In some cases, the citation will ask you to attend court on a number of days: that doesn’t mean that you will have to be at court for the whole time! Witnesses are usually cited for the whole length of a trial, even if the trial is going to take a number of weeks.

Nearer the time, the lawyer who has cited you should be able to be more exact about which day or days you will have to attend court. However, until then you should continue to ensure that you are available for the whole period you are cited. If by the time you receive your citation you already cannot attend court on any of the dates (for example, because of a pre-arranged trip abroad) let the lawyer named in the citation know straight away.

No Coaching

Any fans of Suits or The Good Fight will be familiar with trial preparation where the glamorous lawyer questions the even more glamorous witness from across a boardroom table, while a video camera sits between them recording it all for prosperity. The witness gives their answer but it’s not quite what the lawyer wants to hear. The lawyer suggests answering the question in a different way. The same answer, but different words. The new words, of course, sound better for the lawyer’s client. Whilst permitted in America, this type of witness coaching is strictly prohibited in the UK. A lawyer is not permitted brief or coach you in such a way which might result in a change in your evidence. That includes suggesting how you might answer a question.

What is Allowed?

Just because coaching is prohibited doesn’t mean that there is no assistance available. A solicitor is permitted to familiarise a witness with the process of giving evidence. Advice can be given on the expectations placed upon witnesses. Practical arrangements for the day can be discussed. Copies of any statements that you have given previously can be made available to you for you to review. You might also be given copies of documents that you may be asked to discuss.

If in doubt…

If you have any concerns about being a witness, don’t be afraid to ask the lawyer who has cited you. Whilst they will not be able to discuss your evidence with you, they will be able to discuss any practical issues or worries you have and hopefully put your mind at rest.

In an upcoming blog, the team will share its top ten tips for giving evidence as a witness.

Brodies in-house advocacy team are presenting a seminar on preparing for the witness stand in Glasgow, Edinburgh and Aberdeen. The seminar, led by Tony Jones QC, will include a practical demonstration of a witness being examined under oath. Find our more here.

Jamie Reekie

Solicitor Advocate at Brodies LLP
Jamie is a Solicitor Advocate based within Brodies Business Dispute and Asset Recovery team.Jamie regularly appears in the Court of Session, Sheriff Court and Tribunals on behalf of clients in a wide variety of commercial and other disputes.
Jamie Reekie

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