Witness protection

CILEX Fellow Ronan Kennedy draws on his experience to advise on how best to take witness statements

Earlier this year, Costs Judge Simon Brown suggested that it should fall upon lower-grade fee-earners to produce the first draft of a witness statement to aid cost budgeting and case management in high-value personal injury cases. This led me to reflect upon some of my earliest experiences of taking witness statements, which was something I learnt to do ‘on the job’.

I realised that, while there is plenty of formal guidance (starting with CPR PD 32), there is little guidance on the practical side of evidence taking. As such, I wanted to share with members some of what I have learnt along the way.

Preparation

Start with the basics and build from there. It is the best way to cover all necessary ground. Make sure you know what the claim is about and what stage it is at. This is especially important if the matter is one you have not worked on before, or only sporadically. Have a clear understanding of who the witness is and how their evidence will fit into the claim.

Prior to an interview, you might find it helpful to draft questions and group them into broad categories like ‘quantum’ or more focused headings like ‘impact on ability to garden’, for example. They can also be arranged chronologically, both for how you envisage the content of the witness statement will take shape, and for how you anticipate the interview will flow.

“Interviewing witnesses works best when I blend informal techniques into an otherwise formal process” 

This approach helps ensure you have covered all important aspects in your preparation and forms a useful checklist when conducting the interview.

Arranging the interview gives you the chance to introduce yourself to the witness. You can answer any questions they might have about what is involved. Wherever possible, arrange for the interview to be conducted in person. In my experience, people are generally more relaxed face-to-face than over the phone or online, and the evidence obtained tends to be of a higher quality.

When making arrangements, do give the witness a clear estimate of how long the interview will take and allow ample time. It is better to finish early than try to rush to a conclusion because your witness has somewhere else they need to be.

If you are travelling, be sure to plan your route. Factor in traffic congestion and comfort breaks. Plan to arrive a little early.

A note on safety: it is worth letting someone in the office know where you are, when you have arrived and how long you plan to be there. Check in again once the interview is over.

Interview technique

I have found interviewing witnesses works best when I blend informal techniques into an otherwise formal process.

Upon arrival, you might be anxious to start right away. However, there is benefit in engaging in some casual conversation and accepting a cup of tea, if offered. Not only is it good manners, it also provides an invaluable warm-up to the interview, helping to put the witness at ease and build rapport.

At an appropriate moment, turn the conversation to the matter at hand. This allows you to establish your role as conductor of the interview. It also provides an opportunity to set out in summary why you are there and what it is you hope to achieve. Explain to the witness that you will be taking notes as the interview progresses and that a statement will be produced following the interview.

Open with some easy questions, such as confirmation of full name, address and date of birth. These questions help the witness settle into the interview process.

If you are there to discuss a single incident, such as a car accident, ask the witness to set out their account. If you are asking questions about a longer time span, such as their employment history, break it down into more manageable chunks.

As far as possible, do not interrupt or ask questions as they talk you through their version of events. Pay attention to how the witness speaks and the words they use. Remember, the statement is to be in the witness’s own words. Ask open questions. Closed questions can be used to clarify details on information they have already offered to you.

As the witness recounts their evidence, you may find it helpful to tick off questions you have prepared. You can highlight points not dealt with. Make a note of facts that do not align and any other matters that may need to be double-checked. Circle back to these and any other points on which you are not clear.

Whilst making notes, highlight anything you think is important, or needs to be followed up.

Post-interview

Always let the witness know they can get in touch if anything further comes to mind. Quite often a witness will telephone a day or two later with some further, often invaluable, detail.

Do finalise the statement and attendance note as soon as possible after the interview while it is fresh in the memory.

Ronan Kennedy is an associate at Alderstone Solicitors and a CILEX Fellow with practice rights in civil litigation