What Is A Witness Statement
A witness statement is a critical document in legal proceedings, acting as a fact-based narrative meant to help prove or disprove a claim made in court. Particularly common in personal injury cases and family law matters, they are mandatory in some jurisdictions. Written in a particular format, these statements feature a short introduction, a numbered list of facts arranged in chronological order and a conclusion that provides the witness’s professional background. Assisting in the court’s understanding of the case, witness statements provide the judge with your determination of the fact that your claim is true. You also provide evidence to prove the facts of your claim are true – without supporting evidence, no claim can be validated. In Ontario, under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 39.1.03 states Family Law Rules, O. 14, r. 14.06(1): The court may , on motion of any party or on its own initiative, order a party to serve on the other parties a witness list and such information with respect to the witnesses as is specified in the order. What does this mean? Simply, it means if you are filing a Claim or Application, at some point you may be requested to provide a witness list and information with respect to that witness. This includes providing a witnesses statement to the court. A Judge will rely on all witness statements, including yours, to make judgments about the facts of the matter at hand. Whether you’re the one filing the action or responding to one filed against you, you must ensure that the witness statement you provide follows the proper format. If it does not, the court may deny it or require you to resubmit the documentation. Likewise, if you cannot follow the required format, you should seek the assistance of an experienced Ontario family lawyer.
Key Features Of A Witness Statement
A witness statement is a critical component of the majority of Court proceedings. It provides the Judge with information from other sources as to the circumstances relating to a person’s or party’s claim or defence. Frequently, as you will find out, this material is not otherwise available to the Judge. As a result, witness evidence can be pivotal to a case. However, drafting a witness statement is not simply about setting out anything you think may be relevant to the proceedings. Witness statements need to be carefully drafted to ensure that they comply with both the rules and best practice. It is vital to take time to ensure that this important document is as concise and as accurate as it can be for the Judge to read.
These are the key elements of a witness statement:
• Identifying information – Full names and addresses of the witness and person providing the statement (if different) must be set out together with their occupations.
• The event – generally speaking, the witness idea information should be provided as to what the event was (e.g. traffic incident, slip on supermarket floor etc.) where it occurred, the surrounding circumstances, what happened (from the viewpoint of the witness), any injuries or damages suffered by the witness, who witnessed it, your involvement in it and a statement of truth.
• Signature – Witnesses must confirm the truth of the contents of the witness statement by signing it.
How To Format A Witness Statement
Formatting a witness statement is a critical stage in the preparation process. Whatever the content of a witness statement, if it is not easy to read, and does not look polished and professional, there is a greater risk that the reader will come to an unfavourable view of the witness, or will be distracted by, rather than focused on, the substance of his/her evidence.
Moreover, any such distraction will be compounded by the likely concentration on the opening section of the witness statement, which will include the witness’s background and details of the background to and/or context of the evidence being given.
When formatting a witness statement, therefore, the central objective is to make it as easy as possible to read, with as few distractions as possible, so that, when reading it, the reader can almost forget how it has been produced. The technical rule here is that you should not try to format more than the sub-sections of the witness statement as a whole. If you have a number of broad headings (for example) in the outline of the statement, use those only; endorse (for example, if you want them) your page numbers or paragraph numbers (in ish or th), but don’t use them in any other context, either in the witness statement as a whole or in any of the separate numbered sections.
Formatting a witness statement should be done using 1.5 showing, with paragraph intervals comfortable enough for someone reading it on a screen to make notes, without moving quickly past the contents of the statement itself. The font should be legible, and the margins kept fairly small so that the reader does not have to turn the page every few lines.
Paragraph conventions should be consistent throughout – paragraphs start on a new line, almost always using paragraph numbering, and are relatively long. There is not normally a need for short paragraphs, or quoted references. You should usually control the size of the paragraphs, together with their breaks. For example, if the paragraphs are too long, the reader will lose the main points (usually); if you break paragraphs inaccurately, the reader will find it hard to follow your narrative.
In this way, while there is no single formula for formatting a witness statement, the common objective shared across all formats is to use consistency to reduce the extent to which the reader needs to make adjustments, and therefore lose focus, in the course of reading the witness statement.
Witness Statement Legal Requirements
Courts are under a legal obligation to deal with cases justly and efficiently. A judge in the Technology and Construction Court in London has recently found that the protocol for Pre-Action Disclosure is a clear indication of how the courts are required to deal with cases. In Bills of Sale Superstore v Chan, the Court of Appeal has confirmed that the intelligent use of the protocol can save time and costs and should be actively pursued and encouraged. Most judges will require witness statements to be in the form specified in the Court Practice Directions (Pre-Trial Checklist for Fast Track and Multi-Track Small Claims) (the Checklist), which states in relation to witness statements: "In serious cases counsel may be instructed to draft statements to avoid re-drafting problems at witness conferences and trial. " In the last 2 years we have seen a move away from traditional witness statement formats as the Court has stated that there should be the least possible difference between a witness statement and what the witness would say in evidence. The common guidelines for preparing witness statements have been set out over several Court of Appeal decisions: Barlow Clowes International Ltd v European Credit and Commercial Loans Ltd (In Liq) [2010] 1 WLR 1989 and Makin v Nottinghamshire County Council [2000] 3 All ER 312. In a recent case the Judge referred to the ‘new normal’ in litigation of witness statements in this case in Triton Atlantica LLC v E&CS Energy Ltd (formerly GJ Electronics Ltd) [2017] EWHC 1350 (Ch). However, the usual requirements remain in relation to confession and avoidance, disclosure of documents not referred to, preserving a client’s privilege and obtaining truth from the witness. The recent case in Bills of Sale Superstore v Chan [2017] EWCA 3 gave further clarification on the admissibility of witness statements. The Court of Appeal found that the Trial Judge was wrong in concluding that there had been a breach of the Civil Procedure Rules and Practice Directions. The witness statements in that case were found to be acceptable. The witness statements were drafted by the parties without assistance from lawyers. They included some but not all of the points set out in the standard list of matters to be covered in a witness statement in accordance with the Guidelines. The Court of Appeal found that the authors of the witness statements made their best efforts to cover the main issues in the case and the witness statements complied generally with the CPR and Guidelines. The key point to take away from this is that the court will be much more concerned with the contents of the witness statements and less with the form. Make sure that the witness statement is in the guidelines and cover all relevant matters but try not to get hung up on the form. We suggest you do a double check against the Guideline format but other than that base your witness statement around the points your witness will be asked in cross examination so that they are covered in some way in the witness statement so no surprises arise at trial.
Typical Errors In Witness Statements
Common mistakes made when drafting a witness statement include:
Not including a full name: This may seem obvious but many times a witness statement lacks the full names of the witnesses and the subject matter. It is crucial that all details be included to avoid any ambiguity over who is who.
Not including a date and location: Again, this seems obvious but is often forgotten. You must include the date you prepared the statement and the location/office where you were at the time.
Including lots of detail not relevant to your job but personal details that have no bearing on your conduct or fitness to practice: Witness statements do not have to be an essay on your whole life. In fact the less detail the better in most cases. If you include details of personal matters that do not relate directly to the issues you are facing in your proceedings then the outcome could be a longer and costlier process.
Making assumptions about what other people said: If you include things in your witness statements that are just hearsay, you have eliminated the chance of relying on those statements at a hearing. You cannot rely on matters that are hearsay evidenced by someone other than you . Make sure only matters relating to your conduct and fitness are included in your statements.
Including legal "interpretation" of certain words or statements: This can be a tricky one as some matters require that you rely on what was said to you by a third party especially where a leading question was asked. If you are asked was such and such said this, you might say "to the best of my knowledge it was said", however you cannot give evidence as to the interpretation of the meaning of what was said. You are not a lawyer and should not try to interpret what someone says in a legal perspective. If a person is unclear as to the interpretation of what was said and you were not present while the statement was being made then this is something that would need to be decided at a hearing based on the evidence given.
The key to writing a good professional witness statement is to stick to events you actually witnessed, state clearly when you don’t remember when the events happened or what was actually said, avoid using colourful language or making assumptions about other people’s conduct and ensure that you include all pertinent details of the events in question as well as your practice and not your whole life.
Drafting Useful Witness Statements
The witness statement is vital for communicating facts to an expert witness and should be treated with the same care as an affidavit. This is not only because an expert’s opinion will be based solely on the contents of that statement, but also because the expert could be called on to give evidence in court. In this article, we’ll explore some practical tips for drafting effective witness statements: 1) Write so that a 12-year-old can understand it As is the case with any form of communication, it’s essential that you use simple language and ensure that your thoughts are crystal clear. The reader should not be able to identify ambiguities in your witness statement; you may require further clarifications later on should this occur. Following our 12-year-old rule will generally prevent ambiguities from arising. 2) Be specific Provide as much detail as possible about each of the fact-specific questions asked on the witness statement. Although the questions asked will vary depending on the purpose of the statement, they will most likely include: If you wish to provide further information to the expert witness in relation to the above questions, you should attach this additional information in a short letter. However, this letter should be clearly distinguished from the witness statement, which must be completed by the individual giving the evidence. 3) Don’t give opinions A witness statement must only contain what the person has seen or heard; an opinion is simply a personal comment on what another person has heard. For example, if Mr Bloggs states in a witness statement that "Jim Simulator was drunk when he stole my car," then this must remain simply a fact – Mr Bloggs’ opinion that Jim Simulator was drunk would be inadmissible in court and should be excluded. However, if Mr Bloggs states "I saw Jim Simulator stagger and struggle to stand up, and then fall into my car and drive off," then this would be admissible as a witness statement. 4) Proof read for accuracy and proof read again Always check spelling and grammar; if you do not believe you can achieve this, ask, for example, the person who typed your statement. If removing the stupid spelling errors in this sentence takes her fifteen minutes, then do you really think your client’s witness statement should be littered with them? Take your time. There is nothing worse than having to resubmit a witness statement due to an avoidable error. This can often take an additional few hours.
Witness Statements Samples And Templates
In this section, we provide a sample and template of a well-formatted witness statement for readers. We have included annotations explaining the purpose of each section and some considerations when crafting your witness statement.
Sample:
Statement of Evidence
Witness: [insert full name]
Address: [insert address]
Telephone: [insert number]
Email: [insert email address]
Signed:
Date:
I, [insert name], [insert position], hereby make the following witness statement regarding the evidence I have in my possession related to [insert evidence subject matter].
Relevant facts:
(Please provide in separate paragraphs all relevant facts or statements that you intend to use during trial. If you wish to refer to documents during trial, please attach a "Schedule of Documents" to this statement. For example, if you have a letter from the CEO of the respondent regarding the subject matter of your evidence , include a signed copy of the letter with a schedule that refers to it such as "Schedule 1 – Email from CEO dated 7 July 2017". When referring to a specific statement or piece of evidence, identify it in the relevant schedule at the time you refer to it rather than saying "see attached document".)
Signed:
Date:
General template:
Statement of Evidence
Witness: [insert full name]
Address: [insert address]
Telephone: [insert number]
Email: [insert email address]
Signed:
Date:
I, [insert name], [insert position], hereby make the following witness statement regarding the evidence I have in my possession related to [insert evidence subject matter].
Relevant facts:
[insert relevant facts and paragraphs in the order you will refer to them. If required, attach a "Schedule of Documents" that can be referred to during the trial. (see "What is a Schedule of Documents?" for more information).]