What is the Purpose of a Witness Statement?
A well-drafted witness statement is an integral part of the judicial process in any legal proceeding. When it comes to establishing the facts or meeting the burden of proof, witness statements not only form part of the evidence that will be used by the finder of fact in order to reach a verdict, they also often act as the basis upon which the findings of fact are established and expanded upon.
Experience shows that the majority of cases which end up before the Courts are settled by way of negotiation or formal agreement. Even in those cases which necessitate an appearance before the Court , the vast majority are settled prior to the commencement of the oral hearing. The attention paid by the courts to witness statements during trials and hearings reflects their significance in establishing the facts of the dispute prior to any trial identifying the likely issues and allowing researched suggestions of how the witness may answer, cross examination of the witness to be based on those suggestions and the preparation of trial bundles based on the substantial narrowing of the issues which has been achieved by the use of the witness statements.
Where factual issues remain outstanding after the exchange of witness statements, and a trial is necessary, parties will still have saved costs and built a more complete picture of the likely scenario.
Essentials of a Coherent Witness Statement
When gathering evidence for a personal injury case, there’s no doubt that the testimony of witnesses is critical. But it’s not enough simply to interview witnesses and request their cooperation in disputing the defendant’s claims. What you need is a witness statement – a written document that records the recollections of a witness in response to a series of questions. Properly drafted and carefully crafted, this document can be devastating to the defense and serve as vital proof in establishing the validity of a claim.
There are several critical components to a witness statement, and it’s important that each be included to ensure maximum effect. They include: 1. Chronological detailing: A witness statement is typically crafted around a series of specific questions to which the witness is asked to provide answers. Each of those answers should employ a factual recap of what occurred in chronological order. This will help you in setting the scene for trial and allow a witness to provide expanded testimony of events that can help to paint a picture of what happened and how it affected your plaintiff – you.
- Factual accuracy: It’s absolutely essential that the witness statement include only accurate, factual information regarding what the witness saw, heard, smelled or touched. Anything that is suggested, assumed or otherwise claimed without corroboration should be omitted from the statement. In fact, an accurate witness statement should be a simple and straightforward retelling of the facts. Keep it simple and easy to follow.
- Declarative language: The witness statement should take the form of declarative statements aimed at painting a clear picture of events and actions in a factual, objective manner. It should avoid editorial comments, opinion or conjecture. Remember, the goal here is not to persuade a reader of the validity of your case, but instead to offer a factual account of what occurred.
- Relevance: Of course, any witness statements should remain relevant both to the specifics of the claim as well as to the events in question and the potential actions of the plaintiff and defendant. There is no reason to expand or speculate beyond these facts. Doing so could lead to the witness being deemed unqualified for testifying at trial, which is never good for your chances of winning a case.
How to Write a Witness Statement: A Complete Guide
1. Gather the facts
Your witness statement should include all of the facts that the witness can recall. This means asking the witness to provide you with all details of an event, including their memories before, during and after the occurrence of the event in questions. Something that seems trivial may only serve to confuse the statement. It’s better to leave out the trivial than to include the unnecessary.
2. Start at the beginning
The easiest way to avoid confusion in your witness statement is to put everything in a systematic order, from start to finish. Ask the witness to describe what happened right from the very start.
3. Use plain and formal English
Witness statements are legal documents, and as such should be written in plain English. Avoid slang, abbreviations or colloquialisms – it’s vital that the reader of your witness statement understands what you have written in clear terms.
4. Be as formal as possible
Use a formal yet natural tone, even if the witness is someone you know well. It may be useful to make notes of what you want to ask so that you don’t forget anything, or so that you keep to a schedule.
5. Include details
Using lots of detail for something that seems insignificant is generally better than not using enough detail for something significant. You should try to include more information than less, in order to paint a clear picture for the reader.
6. Use diagrams where necessary
If the witness is describing a scene or starting point, then a diagram could be a great help to the reader. The same can be said for images – there may be photographs or other visual aids that could help to create a deeper understanding of the statement.
7. Check everything
Before you hand in your witness statement, ensure everything is correct. Check that you have included all of the necessary information and that you haven’t missed anything out. Ensure that your spelling, grammar and punctuation is also perfect, as this could make you look unprofessional!
Mistakes to Avoid in Witness Statements
Even the most experienced lawyers and other legal professionals are prone to making mistakes, and witness statements are no exception. When writing a statement, it is essential that you avoid common legal errors that can be used against you in court and which may result in the case being dismissed. Here are a few common mistakes you should watch out for: Hearsay: A statement made by another person who is not under oath in response to a question posed to them is hearsay. In court, hearsay is inadmissible and will be disregarded unless someone else heard the statement as well. When writing the witness statement, if the witness has a statement to give about something that was said by another person, make sure the witness clearly describes the event and avoids quoting any other witness. Let them tell the story without repeating what other people said. Ambiguity: It is imperative that you avoid any ambiguous terms like "nearly" or "approximately" when writing the statement. Ambiguity can change the meaning of a witness statement’s words and render the statement useless in court. Focus on being as specific as possible when writing the statement. Over-emotional language: Some cases may involve situations in which the emotional state of the witness may be relevant, but in most situations, emotional language should be avoided. Words like "exploited," "shocked," "furious," "devastating," "guilty," "crime," or "criminal," and others like it make the statement subjective instead of objective. Writing in an unemotional tone creates a clearer picture of what happened in the eyes of the law.
Example of a Witness Statement Template
The class action attorney should begin by drafting their class action complaint and notice to a prospective witness asking them if they will be willing to provide a witness statement. From this, the class action attorney will be able to define a witness statement template to use as a guide for prospective witnesses . Witness statements created from a witness statement template should include the following elements:
Date of Statement
Name of the Declarant
Home Address of the Declarant
Telephone Number of the Declarant
Occupation of the Declarant
Name of the Prospective Class Representative
Facts of the Case
Declarant’s Experience with the Product or Service in Question
Any Other Relevant Information to the Case
An example of an ideal witness statement template is as follows:
I, [WITNESS NAME], presently residing at [WITNESS ADDRESS] give the following statement concerning [PRODUCT AT ISSUE]:
[DECLARANT’S FIRST HAND FACTS THE CLASS ACTION ATTORNEY WANTS TO GET, WITH SPACE FOR THE WITNESS’S ANSWERS:
The format and information requested in witness statement template above can of course be changed. The most important thing is that it has enough elements for the declarant to provide first-hand information that the class action attorney will later need.
Legalities and Other Important Aspects
When crafting a witness statement template, it is crucial to keep in mind the legal standards and compliance issues that apply to such documents. A well-constructed template should be tailored to meet specific legal and regulatory requirements, which may vary by jurisdiction and context.
Confidentiality and Data Protection
Confidentiality is often a major concern when creating a witness statement template. Depending on the nature of the case or matter, the information provided in the statement may be confidential and sensitive. Therefore, it is essential to include adequate data protection and confidentiality clauses in the template. This not only assures the witness that their privacy is protected but also ensures compliance with data protection regulations such as the EU General Data Protection Regulation (GDPR) in the European Union or relevant state or federal regulations.
Signing and Witnessing Requirements
The legal requirements for signing and witnessing a signed statement can also vary significantly. In some jurisdictions, a witness statement must be signed by the document creator, the declarant, and one or more witnesses. In others, the document may need to be notarized. It is vital to ensure that the witness statement template includes sections for all required signatures and witnessing information to comply with legal standards.
Use in Legal Proceedings
It is also important to remember that witness statements are often used in legal proceedings and may be scrutinized by legal professionals. Therefore, it is advisable to remind your clients to provide their most truthful and accurate accounts of events when they draft their witness statements. The template should help serve this purpose, helping to ensure that the document is comprehensive and of high quality.
Conflict of Interest and Disclosure
Finally, while creating the witness statement template, ensure that it is clear that any potential conflicts of interest must be disclosed in the witness statement itself. Such transparency helps to mitigate any issues that may arise later in a legal context, where the witness’s impartiality and credibility may come into question in the absence of such a disclosure.
Using Witness Statements to Win Cases
When it comes to trial preparation, few things can have as significant an impact on the eventual outcome of a case as a well-written, concise and accurate witness statement. Conversely, a poorly prepared witness statement can do just the opposite, delivering a death blow to your case from which it may never recover. The importance of these statements cannot be overstated, however, all too often still they are assumed to be secondary to the other work that a trial attorney might be doing in preparing his or her case. The fact is that any attorney who handles Personal Injury, Civil Litigation, Commercial Litigation, Insurance and/or Products Liability cases should take the time and effort to make sure their witnesses are prepared by the drafting of thorough and effective witness statements.
A witness statement is typically produced after you have had the opportunity to discuss the matter with your witness and obtain their verbal version of the facts. It is then usually presented to the witness in writing in order to get them to affirm the contents. The witness signing such a document can wind up helping you persuade a judge or jury to find in your favor. Considered a stipulation of the facts by the court, these signed witness statements are considered critical to a successful case presentation — not only on the witness stand, but also in pre-trial negotiations.
The witnessed signature on a complaint may also serve to provide sufficient verification of the complaint so as to remove the requirement of a verified complaint, however, this is not always the case as a verification by signature is also required in most jurisdictions by witness statements. Though there is some dispute in the courts concerning this requirement, the best practice is to include the verification signature .
Witness statements should include shortened versions of the background information of the witness together with enough information on the facts of the case to establish the firsthand knowledge of the witness. The witness should be asked open-ended questions, so as to avoid leading the witness. These questions should be developed from written information that had been previously obtained during the discussion of the facts of the case. While there is no template or specific outline that is required, it is highly recommended that you include all appropriate facts, as opposed to just those facts that support your case.
These statements should be used in conjunction with other documentary evidence from such sources as the following (the use of such sources may reduce the amount of background information required in the witness statement):
The witness statement provides first-hand information in a concise form from which the attorney may quote or paraphrase from at a later point in preparing a trial presentation. It is important that such statements are completed as soon as possible after the facts of the case have been agreed to by the plaintiff or defendants, so as to be able to obtain the signatures of the witnesses while the information is fresh in their minds.
Any attorney who believes it is not important to fully prepare witness statements, especially when the opposing side will likely be doing so, is cutting their own throat. You may very well wind up being the other party in a case where the witness statement of the other party is the one that convinces the jury or judge to render their decision in favor of the other party.
Again, there are many strategies for both using and producing witness statements and the above discussion only covers a few of them.