Brisbane barrister Emma Hoiberg was an Associate to a High Court Judge, a solicitor at Clayton Utz and a policy officer at the New South Wales Law Reform Commission. Since being called to the bar in 2015, she’s built a practice in commercial and public law with particular expertise in government matters and appellate advocacy. Emma joined The Callover to share her insights on preparing high-quality witness statements, a fundamental skill for effective litigation.
What is the purpose of a witness statement? And when do we take them?
So there’s probably two main points in a case in which you’ll take a witness statement. The first will be at the start or fairly early on when you’re trying to work out if there is a possible case or whether the client should commence litigation. And there you might interview the client, or you might interview a key witness, or two, really for the purpose of gathering information and you might prepare a witness statement that is really just for internal use. The second time is usually when you’re heading towards trial and you’re preparing a witness statement for the evidence that your witness is going to give at the trial.
If there are lots of people involved in a particular event, or matter, what should lawyers remember when identifying who is the appropriate witness to give evidence?
So that’s going to come back to the step that you should do at the start and the step that I always do before I interview witnesses, which is what are the issues? And what are the things that my side needs to prove? And if you can, do that by reference to the pleadings, if you’re in a case that has pleadings, or otherwise, the other statements of issues in the case and really give yourself a point list essentially of what are what are the things that my side needs to put on evidence about.
That’ll give you an indication of what kinds of witnesses you might be looking for and then it’s a bit of a question of strategy after that. So who might be the best person to speak to this issue? So if you’ve got, say, a bunch of people at a company, is the is the head of the department or the manager the best person to speak to? Because everybody else is really working under them, for example.
And the other thing you want to think about is also who might be best placed in terms of how well do they present as a witness. And sometimes you’ll make a call that even though there’s multiple people who could give evidence about the same topic, one person is probably going to come across as a better witness, and they might be the person that you’ll focus on. But a lot of the time, you can’t make that call until you’ve actually spoken to a lot of them and then you might go through a process of narrowing them down.
In a general sense, what are the qualities of a good witness statement?
So a few things. You want it, particularly if you’re looking at putting together a witness statement for trial, you want it to be relevant. So only evidence that is relevant to the issues in dispute can be admitted. And if you’ve got irrelevant evidence in there, then it can be objected to by the other side. You also want it to be admissible in the sense that you it complies with the rest of the rules of evidence.
You want it to tell the witness’s story in a logical way that will make sense to a judge reading it. So a lot of the time that’s going to be chronologically setting out the events as they occurred, the witness’s evidence about those events. But it depends on the particular case. Sometimes in a case with a lot of issues, it makes more sense to structure the witness’s evidence by issue.
But that’s the kind of thing you sort of have to do by trial and error by starting to draw something and then coming to the realisation it doesn’t really work out like that. Then I think the other thing is you want the evidence to have regard to the contemporaneous documents, and either be consistent with what those documents say or if the witness that witnesses’ evidence is inconsistent, hopefully have the witness’s evidence explain why that is the case.
So you’re sort of answering all of the obvious questions that a judge or your opponent might think about when they read the witness statement.
What ethical obligations do we need to be mindful of when we’re taking witness statements?
So there’s two main ethical obligations and they’re both set out in the Solicitor’s Conduct Rules. The first one is rule 24, which provides that a solicitor must not coach a witness by suggesting the answers they should give, and a solicitor must not suggest to a witness that they should give false or misleading evidence. But it’s also clear in the rules that you won’t be in breach of this ethical obligation if you are simply testing the witness’s version of events, or you’re drawing attention to inconsistencies in the witness’s evidence.
So what this means in practice is that when you’re interviewing a witness, you can’t suggest to them the evidence that they might give, or you can’t suggest an answer to a question that you’re asking them, but you can, and you should, test what the witness is telling you. So, I would normally do this by asking the witness open questions.
For example, what you’ve just told me is different to what you told me earlier and how do you reconcile those two things? Or can I ask you to look at this document and then tell me if you would make any changes to the evidence that you’ve just told me? And that’s important because as particularly at a trial, your witness is probably going to be cross-examined.
And if there’s inconsistencies in their evidence or, difficulties, you want to know that now rather than finding out for the first time when they get into the witness box.
The second ethical obligation is in rule 25, which prohibits a solicitor from conferring with more than one witness at a time about any issue which the solicitor has reasonable grounds to believe might be contentious at a hearing, and where conferral could affect evidence to be given by any of those witnesses.
So this is something to just keep in the back of your mind when you’re talking to people, because it’s sometimes common for witnesses to say they want somebody to come into the room with them. And one I see commonly is husbands and wives. Like they’re so used to attending meetings together, it’s quite natural for them. And you need to think about whether there’s a possibility that they’re both going to be asked to give evidence.
How do you deal with a situation where a witness has a poor recollection of events?
So that’s pretty common in my experience. A lot of the litigation at least I’ve done anyway, has been about events that have occurred years ago by the time you get into preparing a witness statement for trial. So it’s pretty common that people won’t remember. There’s a bit of a spectrum. So at the one end, you’ve got witnesses who have perfect recollection of events. That’s not impossible, but it’s pretty unlikely or pretty uncommon, I should say.
And then the other end of the spectrum is witnesses who just remember absolutely nothing. Usually where most witnesses will fall is somewhere in the middle of that. So, often you’ll get witnesses say “I don’t remember the details of this, or I don’t remember everything that happened, but I distinctly remember having a conversation with Bob where he said to me, this, or I distinctly remember seeing this”. So what you want to do is try to get as much information about things that they do remember as you can, because that can be quite powerful to a judge.
Judges know that people don’t remember things very well after months or years, and they don’t expect a witness to have a perfect recollection. And in fact, they’re more likely to be suspicious if a witness does remember everything perfectly, because it may suggest that it’s reconstruction and not an actual recollection. So it’s quite powerful to have a witness come along and say “look, I don’t remember much of this, but I have this really distinct recollection”.
And how would you go about dealing with either a reluctant witness or an outright hostile one?
It can be difficult. I think finding out why they’re reluctant or hostile is important. So sometimes, it’s they don’t want to go to court and give evidence, which is perfectly understandable. Sometimes they don’t want to put in the time and effort in being interviewed and, having a witness statement taken. And then sometimes it’s just some other reason why they don’t want to be involved.
So usually if it’s one of the first two there’s things you can do to sort of try to help ease that concern for them. At the end of the day, I think if the witness is truly hostile, unco-operative, you just have to think about, is this worthwhile continuing on down this path? If you’ve got a witness who’s not going to cooperate with you, is this person going to be a good person to have give evidence for my side?
So that’s sort of something you probably want to talk to your barrister about, about making a call, is it worthwhile continuing?
And the language of the witness. How closely should we be sticking to it?
Often the witness is telling you and answering questions that they haven’t thought about in some time. So the evidence that they give you kind of off the cuff might not be the best expressed answer. Look, it’s probably a matter for judgment. It is, at the end of the day, the witness needs to swear to that evidence as being their own so I always find, to the extent you can follow as closely to what the witness actually said as possible, you’re more likely to end up with a product at the end of the day, that is the witness’s evidence rather than the lawyer’s evidence. But having said that, you do need to make sure that the witness statement is going to be admissible and it’s going to be something that the judge can follow and understand.
So you just need to use your judgment. A lot of the time what I’ll do is I’ll take something that the witness might have told me. I’ll edit it for sort of grammar and comprehensibility but try to keep the essence of what they’re saying. Particularly if it’s something that’s quite a critical part of their evidence, and something that, you know, the judge is going to be looking at closely or the other side is going to be looking at closely, you want to try to keep it as consistent with their actual views on the matter.
Generally, are there any common mistakes lawyers make when preparing statements that we should avoid?
Try to stick to the rules of evidence, which is easier said than done, particularly, I think, as a solicitor. Certainly when I was a solicitor, I had no idea what the rules of evidence were. Now that I’m at the bar and I have to use it much more regularly, I’m so embarrassed at the statements I used to draft give to barristers to look at, that’s going to be the main thing.
But understanding the rules of evidence is hard because they’re kind of complicated. So I’d encourage you to learn as much about that as you can. If you’re in a jurisdiction that doesn’t abide by the rules of evidence, for example, you’re in QCAT or the ART, then that matters less, but you still want your evidence to try to comply as much as it can, because it just means that the evidence is more powerful.
What is one piece of advice you would give to your younger self as you commenced your legal career?
Yeah, I’ve been thinking about this. I think I would tell myself not to stress about having to have everything in place so early. I remember finishing being at uni and stressing about the fact that I didn’t have a grad position lined up, and then that would basically be the end of my career, but it really doesn’t pan out that way at all. There’s so many opportunities for you to move and try new and different things that if you don’t have it all sorted out before you finish uni or even in your first few years of practice, it’s really not going to be to your disadvantage.
You can listen to this episode of The Callover now.
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