Early steps to preserve trial witness evidence in litigation and international arbitration

Changes in the way witness evidence is handled at trial will have an impact on steps that need to be considered when a dispute first arises with action to preserve relevant witness evidence being required much earlier than has previously been common practice. This article identifies ways in which first responders to a dispute, typically in-house counsel, management or lawyers qualified in other jurisdictions, need to take care.

Michael Frisby introduces the article in this short video below:

There are two principal factors driving the changes: firstly a recognition that memory itself is malleable and can be corrupted; and secondly that trial witness statements are often unnecessarily lengthy documents containing irrelevant material that fail to clearly identify the admissible evidence the witness can actually give at trial.

The changes come in a practice direction applying to witness statements prepared for trials in the business and property courts in England and Wales (the “PD”)[1]. It applies to most commercial disputes with few exceptions. The issues it seeks to address have also been the focus of debate in international arbitration and were considered by the International Chamber of Commerce in its report on the accuracy of fact witness memory (the “ICC Report”)[2].

Human memory is malleable

The court’s approach to evidence is that human memory is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.[3]

This approach appears well founded in light of scientific research.

The ICC report stated that decades of research show that witness memory is malleable but that existing studies centred on criminal settings. It therefore conducted a test on witness reliability in the context of a business dispute[4]. The experiment took the scenario of a contract for replacement of old and cracked flooring at a printing plant. Some participants were asked to imagine they were working for one or other of the parties, with a control group who were not. Participants were shown a purchase order and contract terms and were then asked questions. They were then shown a note of a conversation between the parties and the following day were sent questions. Participants were then told the floor continued to crack, posing a risk to staff and the work was instructed to commence earlier than scheduled in the contract. The new tiles however cracked with the printer claiming they were not fit for purpose, the tiling contractor responded with an expert report saying the tiles were suitable for the heavy printing machines but not for heavy machines being rolled around. After that participants were shown only biased post – event information: the printing company participants saw a biased internal memo commenting on what happened; the tiling contractor participants saw a different in-house counsel memo, this time biased in favour of the tiling contractor. After a break, participants were told the dispute had gone to arbitration and they were asked to answer questions which centred on two issues in dispute.

The primary purpose of the study was to see if the accuracy of recall was affected by whether a co-operative and honest witness is biased in favour of either party and also whether exposure to biasing post-event information can impact memory. It concluded they did. The mere act of imagining that one worked for a particular company was enough to alter participant’s memories and that although a test, the report said these findings in this type of study do generalise well to real fact witnesses. It also said that the finding that suggestive influences can distort human memory is a common and robust one.

Content of trial witness statements

The concern about the content of trial witness statements is that they often go beyond their purpose of setting out a witness’s admissible evidence in chief. For example by going through documents in the case and providing a narrative; quoting at length from documents; seeking to argue the case; and commenting on other evidence or documents. There are many examples of critical judicial comment on the disparity between a witness’s written statement and their oral evidence given at trial. For example, of one witness in a recent commercial court case the judge said:

“He confirmed in cross examination that his witness statement was written by lawyers (who had previously interviewed him for that purpose) and not by him. This limits the value of that evidence not only because on occasion he appeared not to know what was in that statement but somewhat surprisingly, despite having expressly adopted the witness statements in evidence in chief, could not confirm that it represented his evidence.”[5]

Approach of the courts under the PD

The PD sets out a new approach in order to overcome these problems. Witness statements must be limited to admissible evidence (i.e. matters of fact that need to be decided at trial, of which the witness has personal knowledge) and prepared in accordance with the Statement of Best Practice. It needs to identify the documents the witness has seen (without affecting privilege in any such document). A confirmation of compliance must be given by the witness confirming that the PD has been read and understood by them. Where there is one, the legal representative also gives a certificate confirming they are satisfied that the purpose and proper content of trial witness statements and proper practice in relation to their preparation has been discussed with the witness and a statement of belief that the witness statement has been prepared in accordance with the Statement of Best Practice appended to the PD.

The Statement of Best Practice requires, amongst other things that witness statements should only contain matters of fact, within the witness’s personal knowledge and recollection that need to be proved at trial. They cannot be used to argue the case, either generally or on particular points, or to take the court through the documents in the case, or to comment on other evidence. The statement should be in the witness’s own words and should be prepared in such a way as to avoid, so far as possible, any practice that might alter or influence the recollection of the witness. The memory of the witness can be refreshed by being shown a document, but only if the witness created it or saw it while the facts evidenced by or referred to in the document were fresh in their mind so that they would have known if they were accurate or not. The witness should state how well important disputed matters are recalled, whether their recollection has been refreshed by documents (and if so identifying them and saying how well they recalled matters prior to reviewing them). The statement should be prepared in such a way as to avoid, so far as possible, any practice that might alter or influence the recollection of the witness.

The preparation of the statement is to involve as few drafts as possible and where practicable should be based on a record or notes made by the relevant party’s legal representative of evidence obtained from the witness during interviews. The interview to take evidence needs to avoid asking leading questions and should be recorded as fully and accurately as possible. Whilst privilege is maintained, the process used must be described in the witness statement.

Sanctions for non-compliance are potentially severe. They include the power of the court to strike out all or part of the statement; to order it to be redrafted in accordance with the PD; to order evidence in chief to be given orally; and to make adverse costs orders against the defaulting party.

Approach of international arbitration tribunals

The ICC Report sets out measures that might be taken to reduce distorting influences and their effect on witness memory and also steps that can be taken to allow a tribunal and parties to identify and weigh any distorting influences that might exist. Although many of these measures reflect the practice subsequently adopted by the business and property courts in this jurisdiction under the PD, the ICC Report explained they were not to be understood as ‘rules’ or ‘best practice’ and decided it would not be sensible to require some or all of the steps be taken. This seems at least in part to be because it was not felt by the authors of the report that the preparation of witnesses and witness evidence should be subject to routine inquiry by tribunals, but should be reserved for exceptional situations.

The ICC is of course one of the main arbitral institutions but it is not the only one. Whilst recognition of the problem of malleable human memory and excesses of written witness evidence is gaining recognition across the board, practices to address these problems are likely to differ between tribunals. The case management powers of a tribunal are wide ranging. In cases where witness evidence is important, cross-examination aimed at identifying exactly what a witness actually recalls and whether that has been affected by later corruption and interference is not unusual, with tribunals varying in the extent to which the scope of such questioning might be allowed.

As the PD takes effect in the preparation for trials in this jurisdiction, it may well have an impact in international arbitration practice where the governing law is English and the seat is in London.

How does this impact first responders?

It should of course be noted that not every dispute turns on witness evidence at trial. Facts are usually established from the documents in commercial cases and often the witness evidence is not significant. However, at the outset of a dispute, it may not be apparent that this is the case and therefore steps need to be taken to preserve witness evidence.

The changes brought in by the PD will have a dramatic effect on the way in which witness evidence is prepared for trial and its timing. The approach to dealing with the problem of malleable human memory means that the earlier the witness evidence is preserved (through interview or statement) the better, as it improves the prospect of a court accepting that evidence at later trial. The groundwork for trial witness statements will need to be done much earlier on and identifying the key documents in the dispute will also happen early. Similarly, where the dispute is likely to go to arbitration, particularly one subject to English law and seated in London, it is likely to be sensible to prepare in the same way.

This means that first responders to a dispute, typically in-house counsel, management or lawyers qualified in other jurisdictions need to bear in mind the following in particular:

• avoid exposing potential witnesses to biased material (such as the internal memo mentioned in the ICC case study)
• be careful about the documents to which a potential witness is exposed (this might be particularly difficult where the witness is involved in managing the dispute)
• keep a record of documents seen by a witness
• Interviewing a witness as close as possible in time after a disputed event will reduce the chances of memory corruption
• take care to ensure that any interview is conducted in light of the Statement of Best Practice
• where a party is legally represented, the solicitor with conduct of the matter must be satisfied that the terms of the PD are complied with

What steps should be taken will vary from case to case depending upon the nature, context and background to the particular dispute. Taking advice at an early stage is likely to be helpful and could make a significant difference to the way a party’s witness evidence is ultimately viewed at a later trial.