For representation or advice from Cambridge based solicitors, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk
Time
The English legal system is under strain in managing a vast number of claims within a limited budget. Be aware of the need to use time and resources well. Be on time.
Before the hearing
As a witness you will be asked questions on the evidence you have given in your witness statement. Make sure that you are familiar with your witness statement and any documents it refers to. It is a good idea to re-read your statement the morning before you appear as a witness so that it is fresh in your mind.
If there are any words in your witness statement that you are unable to define, look them up in a dictionary before the hearing. Sometimes a questioner will ask a witness what something means. This preparation can be helpful and boost your confidence and credibility.
Ensure that you know the correct time of the hearing. Courts and Tribunals usually start at 10am but not always. It is best to arrive at least 15 minutes before the hearing time to check which room your hearing will be held in and the names of the panel members. This will also allow you to settle in to the tribunal environment.
In making arrangements for transportation etc. be aware that a typical court or tribunal working day starts at 10am and ends at 4pm with an hour for lunch from 1pm to 2pm. If time is short for the evidence to be covered, the judge will sometimes extend the working day by agreement.
At Court or Tribunal
Be aware that you are on view at all times, not just when giving witness evidence, and may be seen and heard by judges or staff even when you are not giving evidence. Everything you do influences the way others perceive you and your case. Try to give the best impression while you are on public display.
What you say to other witnesses or the lawyers in your party may be overheard by the other side’s witnesses and lawyers or others attending for different cases. Proceed cautiously. The opposing parties are generally given separate rooms where witnesses from either side wait when not in the hearing room. County Courts do not always have separate waiting areas for the parties.
When you are waiting for the hearing bear in mind that there may be strangers present who can overhear whatever you say.
Layout of the hearing room
The lawyers sit at the front of the room facing the judge or panel. Clients usually sit next to their lawyers. When called to give witness evidence, you will be directed to the witness table or area towards the front of the room at the side, where you may sit.
Judge or Panel
Facing the lawyers is a judge. The judge may be alone, or sitting with two lay representatives in some tribunals. The judge or tribunal panel of three will be on a raised platform. If it’s a panel, the judge will be in the middle.
In employment tribunals the judge is generally the only legally qualified member and will be either a solicitor or a barrister of at least seven years’ experience. If you need to speak to the judge, call him “Sir”, “Madam” or “Judge”. Some employment judges prefer the less formal and gender neutral term “Judge”. To speak about the judge, refer to him/her as “the Judge”.
In County Court you should generally refer to the judge as “Sir” or “Madam” (Only Circuit judges or Recorders are referred to as “Your Honour”).
In High Court the correct address is generally “My Lord” or “My Lady”.
If you are before an employment tribunal panel the judge will be in the middle of two “lay” members. Lay panel members will come from opposite backgrounds. They are there to contribute balance and to bring practical knowledge of the workplace and industrial relations. One will come from an employer background and the other from an employee background such as a trade union. They can be referred to by name or as “colleagues” of the judge.
The oath
The court or tribunal clerk will administer the oath that your witness evidence will be the truth, the whole truth and nothing but the truth. You read from a card. Whatever your religion, the court or tribunal will have the relevant religious book to enable you to take the oath. Alternatively, you can make an affirmation instead of an oath. It is no advantage to profess a religion if you do not have one. The key thing is that the evidence you give is truthful.
Your witness statement
If you haven’t already done so, you will be asked to sign your witness statement before being questioned.
A witness statement will usually have been drafted by a lawyer. This is standard practice. If you are asked in cross-examination “Did you write this yourself?” do not say that you did when this is untrue. Some witnesses are caught off balance by this sort of question because they assume that it will be thought improper if they tell the truth. Have no fear: if you worked with your lawyer to produce your statement, which is most common, say so. Ideally, you won’t be in a position where you say that your lawyer not only wrote your statement but also invented its contents!
In employment tribunals witnesses used to be asked to read their statements aloud. This is no longer the norm. After giving your witness evidence you will be asked questions. Whether or not you are asked to read your witness statement will depend on the time available and the preference of the judge.
Breaks
Once you start giving your witness evidence, you should not discuss it with anyone from your legal team or indeed with anyone. This rule applies during any lunch time adjournment and overnight if you do not complete your evidence by the end of the day. If you are not giving evidence you are free to discuss the case, but take care what you say in or around the court or tribunal.
Cross-examination
In cross-examination the other party’s representative asks you questions based on your witness statement.
The aims of the cross-examination are to discredit you as a witness, to undermine or neutralise your evidence, or to get you to change it. This is no cause for alarm as most advocates are pretty average and not of the standard you will have seen on TV and in films. Contrary to the impression from fiction in films and TV, cross-examination is rarely aggressive.
Advocates do not ask questions because they want to know your answers. A good advocate already knows how he wants you to answer and he will attempt to control your answer so that it comes out in a way that supports his case. The golden rule for advocates is that usually they should never ask a question they don’t know the answer to. If an advocate doesn’t know what a witness is likely to say there is a danger that the witness will say something the advocate doesn’t like. For this reason the better advocates are unlikely to ask you to comment in a general way on the evidence or for your opinion. They don’t want to know and they don’t want the panel to hear your opinions either. When you get an opportunity and it seems appropriate, exercise your right of free speech. Your role isn’t to give the advocate just what the advocate wants. Your responsibility is to tell the truth.
The advocate is trying to get you to say things in front of the panel which in some way support his or her argument. At the same time he or she will not want you to say anything that damages his or her case. You often see examples on TV or film of advocates saying to the witnesses that they just want a “yes” or “no” answer. That is usually because a simple “yes” or “no” will give the limited view that they seek to present without explaining the larger reality. As we know, reality is often far more complex.
Your evidence may be subject to attack or an attempt to obtain concessions. The questioner may use such phrases as:
“You’re not really saying that, are you?”
“Have you taken account of this?”
“We can agree on this, can’t we?”
Try not to appear evasive or unwilling to give a straight answer but do not be pushed into giving an inaccurate or misrepresentative answer. Certainly do not allow yourself to be pushed into saying something that isn’t entirely true or of which you are not certain. If what you are being asked to say is not accurate, say so.
Leading questions
This is the art of cross-examination. A leading question leads the witness to the answer that the advocate wants. It is the opposite of an open question, the answer to which could be almost anything. Leading questions often take the form of a statement followed by “isn’t that so?”, “that’s right, isn’t it? “didn’t he?”, “doesn’t it”, “agreed?”, “correct?” A leading question gives the answer so that all the witness has to say is “yes” or “no”. The advocate has control: while they make all sorts of statements to further their case they try to limit you to a mere “yes” or “no”.
They don’t usually ask, “Did the cat sit on the mat?” or “Where was the cat?” Instead they ask, “The cat sat on the mat, that’s right isn’t it?”
Be aware of this and, if appropriate, resist. Give your truth.
Referring to documents
On the witness table are ring binders containing documents related to the case. These documents are collectively known as the “bundle” or “trial bundle”. Each page is numbered (paginated). Your witness statement will be open in front of you while you give evidence so you can refer to it and someone will be there to hand documents to you if necessary.
Do not answer questions about the content of documents without seeing them. Feel free to ask if there is a document you can look at which relates to a particular point. Ask for its page number if necessary. Do not answer until you feel you have had enough time to review the document referred to.
Clarify questions
Listen carefully to each question. If you do not hear the entire question or understand it, ask the questioner to repeat it. Do not try to answer until you have heard and fully understood the complete question. Ask for clarification of the question if you are not sure what you are being asked.
Disagreeing
If the question includes a fact with which you do not agree, do not try to answer. You can tell that questioner that you do not accept that fact.
Interruptions
If your representative objects to a question put to you or interrupts the questioner, do not answer the question or say anything further until you are told that it is all right to continue. If you cannot remember the original question ask for it to be repeated.
Be brief
Time is short and judges are very aware of the need to focus parties on the essentials and to avoid time consuming digressions.
Keep answers short and simple. Answer only the question asked and as briefly as possible. Leave evasive answers to politicians.
If you feel that you are being forced to give an impression that doesn’t accord with the truth, feel free to resist the questioner and to say what he doesn’t want to hear. Judges are aware of the advocacy game and are often gratified when witnesses break through the limitations of the questions asked and give the fuller picture. However, do not do this excessively.
Pace
Speak slowly and clearly. You can set the pace with which you feel comfortable. Judges are only human and the rule that advocates work to is to follow the pen or laptop of the judge. When a judge is struggling to write down your evidence you can assist by slowing down the speed of your answer. You should care about what the judge thinks, not the opposition’s questioner.
If you can’t remember
If you do not remember a certain matter or event, say so. You are only human. No-one has perfect recall of everything. Everyone knows that being a witness is an unusual experience with which most people are not familiar.
Silences and pauses
All interrogators, salespeople and advocates know the power of silence. After you have answered a question, stop talking. Stay silent until the next question. Do not feel compelled to fill any silences or pauses or to elaborate on an answer or say anything further because, for example, the other side’s representative is silently staring or smiling at you or is nodding his head. Silence creates pressure. Under pressure people say things they would rather they hadn’t. Don’t fall for it.
Be moderate
Do not exaggerate in answering questions. It is important not to answer questions beyond your knowledge or expertise. Avoid using absolutes such as “never” or “always”. Avoid being perceived as extreme in your views or reactions. Witnesses who are reasonable and moderate are generally considered more believable.
Address the Judge
Keep eye contact with the questioner while you listen to his question, but direct your answers to the judge or panel. The judge or panel makes the decision. What anyone else thinks is irrelevant to the outcome. All advocates are there to persuade the judge or panel.
In answering questions you are really speaking to the judge and not the advocate. Look at the judge or panel when you answer questions. We all partly judge truthfulness from eye contact.
Questions from the judge or panel
If asked a question by a judge or panel member, listen carefully. These questions sometimes give useful clues about how the evidence is being perceived.
Don’t question
Do not pose a question (unless to obtain clarification about a question) or seek to argue a point. A typical riposte from an advocate is, “You are here to answer my questions, not the other way round”.
Objections
Leave it to your lawyer to object to any improper questions.
Re-examination
If any matters need clarification after cross-examination – for example, because something you said was inconsistent with your witness statement – your lawyer can raise these in re-examination. Often re-examination does not take place: if it does and your lawyer refers you to certain evidence or documents then this is an indication that it is the issue which these documents deal with that needs correction or clarification. Listen carefully at this stage. Your lawyer will try to repair any damage caused in cross-examination.
Justice and standard of proof
The adversarial process is not about justice but about one side winning and the other losing. Forget noble ideals: they aren’t central to the process although they may motivate lawyers, witnesses and panels. The question is always which side is more credible. The panel asks itself whether the argument they have heard is more likely than not to be true. Lawyers refer to this as the “standard of proof”. Everyone has heard of the criminal standard: “beyond reasonable doubt” (or virtually certain). In civil cases (such as are heard in employment tribunals) the standard is whether the argument is true on “balance of probabilities” or more likely than not to be true. It is a lower standard that is easier to satisfy.
Being likeable and reasonable
It is important to maintain a pleasant but formal demeanour at the hearing. The judge has a short period of time in which to determine the factual basis of the claim and to form impressions of those involved. Your concern should be to behave well and to make a favourable impression. Judges are only human and are inevitably influenced by the way they perceive your character from the way you present yourself. It’s only natural that a judge will prefer evidence from someone who seems more credible and likeable when other things are equal.
Be likeable and seem reasonable. Being a witness only requires you to be yourself.
Do not let the questioner’s behaviour affect you. Confidence increases your credibility and persuasiveness. Try not to show anger or resentment in reaction to any questions even if you feel unfairly harassed; the judge or lawyer will intervene if necessary and you should wait for him to do so. Do not be intimidated by the questioner’s tone of voice or actions (like table pounding, sarcasm or impatience).
Do not verbally spar with the questioner or try to show that you know more than him.
When listening to the evidence of others do not show anger or what are perceived as negative emotions. Try to remain impassive even if you know that what is being said is absolute rubbish.
What to wear
There is no dress code. While it is not necessary for you to wear formal clothes such as a suit, you should dress smartly and tidily. There is certainly no disadvantage in dressing formally as it suggests that you are taking the proceedings seriously and respectfully. Avoid clothes which are fussy or uncomfortable. The tribunal should be concentrating on what you are saying, not wearing.
Who is telling the truth?
Lord Bingham wrote that “the main tests needed to determine whether a witness is lying or not are, I think, the following, though their relative importance vary widely from case to case:
(1) The consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred.
(2) The internal consistency of the witness’s evidence.
(3) Consistency with what the witness has said or deposed on other occasions.
(4) The credit of the witness in relation to matters not germane to the litigation.
(5) The demeanour of the witness.“
Lord Bingham describes the witness’s “demeanour” as “conduct, manner, bearing, behaviour, delivery, inflexion; in short, anything which characterises his mode of giving evidence but does not appear in a transcript of what he actually said.”
Being a witness is a necessary part of supporting justice. What you have witnessed is unique to you and important.
If you are looking for representation or advice from solicitors in Cambridge, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk